Case No: Writ Petition No. 5539 of 2009

Judge: A. F. M. Abdur Rahman,

Court: High Court Division,,

Advocate: Mr. Mosharaf Hossain,Mr. S. Rashed Jahangir,,

Citation: 2016(1) LNJ 1

Case Year: 2016

Appellant: Nurun Nabi

Respondent: National Board of Revenue and others

Subject: Income Tax,

Delivery Date: 2013-09-29

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

A. F. M. Abdur Rahman, J.
And
Kashefa Hussain, J

Judgment on
29.9.2013 and 30.9.2013

Nurun Nabi

... Petitioner

-Versus-

National Board of Revenue and 4 others

... Respondents.

Income Tax Ordinance (XXXVI of 1984)
Section 83A(2)
It appears that no audit was held after the deemed finalized Self Assessment return, for the assessment year 2006-2007, was selected by the National Board of Revenue and that being a mandatory provision of law any violation of the same renders the further proceeding a nullity. This court finds with firm believe that the DCT concern without lawful authority thereafter proceeded to reopen the assessment, for the assessment year 2006-2007, harassing the assessee-writ-petitioner to travel up to Tax Ombudsmen and to the highest court of the country, incurring a great monetary expenses....(38)

Income Tax Ordinance (XXXVI of 1984)
Sections 83A(5) and 93(1)(2)
As the Tax Inspector has admitted that the assessee-writ-petitioner has submitted the bank statements before him no concealment of the documents can be alleged against the assessee-writ-petitioner. Further it appears that nothing has been said in the affidavit-in-opposition as to the categorical allegation of non-obtaining the prior approval of Inspecting Joint Commissioner, as has been alleged by the assessee-writ-petitioner. The opening version of sub-section 2 of section 93 of the Income Tax Ordinance 1984 categorically provide that no proceeding under section 93(1) can be initiated unless the criterion of sub section (2) is observed. Therefore, this court finds that the DCT concern has failed to comply the mandatory provision of section 83A(5) and section 93(2) of the Income Tax Ordinance 1984 which left the step under section 93 of the Income Tax Ordinance 1984, nugatory one. . . .(45)

Income Tax Ordinance (XXXVI of 1984)
Sections 93(2)(3)(a)(b) and 94 (2)
It appears from section 94(2) of the Income Tax Ordinance 1984 that the limitation of two years have been provided in the said section meaning thereby that the provision of section 93(3)(a) and (b) of the Income Tax Ordinance 1984 is applicable both for ordinary and the Self Assessment Scheme and in case of Self Assessment Scheme the same became barred after the elapse of two years and the provision of section 93(3)(a) and (b) cannot be invoked after the assessment barred by limitation under the provision of section 94(2) of the Income Tax Ordinance 1984. Because, the Self Assessment Scheme is a privilege and on an from the issuance of the receipt by the DCT concern as to receiving of a compliant return the same became finalized which become absolute after the elapse of two years, as provided in section 94(2) of the Income Tax Ordinance 1984. But the provision of section 93(2) being applicable for ordinary assessment will remain applicable as against five years of any assessment made in ordinary manner. Therefore, this court also on this count finds that the action taken by the DCT concern in respect of re-opening of the Self Assessment return after two years, by way of serving a notice dated 12.3.2008, calling upon the assessee-writ-petitioner to explain as to his six banks accounts, is a palpable illegality committed by him. . . . (49)

Spectra S.N. Tex Limited Vs. The Commissioner of Taxes, Income Tax Reference No. 39 of 2012 ref.

Mr. Mosharaf Hossain, Advocate

...For the Assessee-applicant.

Mr. S. Rashed Jahangir, DAG with
Ms. Nurun Nahar, AAG with
Mr. Saikat Basu, AAG.

...For I.T. Department.

Writ Petition No. 5539 of 2009 With Writ Petition No. 4761 of 2009

JUDGMENT

A.F.M. Abdur Rahman, J:

These two Writ Petitions filed by the same writ petitioner have been taken together for hearing as the similar and identical questions of law are involved in the rules and now disposed off by this single judgment.

Facts of the Case.

In Writ Petition No. 4761 of 2009 the rule nisi was issued on 23.7.2009 by this court to the following extent;

Let a rule Nisi be issued calling upon the respondents to show cause as to why the impugned assessment order dated 18.01.2009 under section 83A(1)/83A(2)/83(2)/156 section 20(2) of the Ombudsman Act, 2005 by the DCT companies Circle, Taxes Zone-01, Chittagong (against the income of the petitioner) for the assessment year 2006-2007 (Annexure-F) should not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders as to this court may seem fit and proper.

In Writ Petition No. 5539 of 2009 the rule nisi was issued on 9.8.2009 by this court to the following effect;
Let a rule Nisi be issued calling upon the respondents to show cause as to why the impugned notice dated 30.3.2008 and 04.05.2008 under section 93 of the Income Tax Ordinance 1984 issued by the Deputy Commissioner of Taxes, Companies Circle 02, Taxes Zone-01, Chittagong so far as it relates to assessment of income of the petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006 (Annexure-F and F(1) and Notice dated 24.5.2009 asking the petitioner to produce books of accounts and other documents for the assessment of income of the petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006 issued by the Deputy Commissioner of Taxes, Companies Circle 02, Taxes Zone 01, Chittagong (Annexure-H) should not be declared to have been made without any lawful authority and is of no legal effect and/or such other or further order or orders as to this court may seem fit and proper.

Almost the similar factual circumstances have been stated in both the Writ Petitions which states that the writ-petitioner Nurun Nabi is an assessee of income tax as well as regular tax payee holding TIN. 349-106-1003/Coy-2. The writ-petitioner is the Director of income tax payee six private limited companies, namely (1) Balaka Hatchery Limited, having TIN. 306-200-4430/Coys-2, (2) Balaka Sweater Industries Limited, having TIN. 306-200-4326/Coys-2, (3) Balaka Composite Textile & Sweater Mills Limited, having TIN. 306-200-4262/Coys-2, (4) Balaka Re-rolling Mills Limited, having TIN. 306-200-4414/Coys-2, (5) Balaka Royel Textile Mills Limited having TIN. 306-200-4414/Coys-2 and (6) Balaka Royel & and Printing Limited and also shareholder of South Point Hospital Limited.

It has been stated in the writ petitions that the four Textile Mills under the Bangladesh Textile Mills Corporation, namely (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, situated at Foujderhat Industrial Area in Chittagong, manufacturing low cost fabrics, were all loosing concern under the government management and the government was facing severe consecutive loss in those four textile mills for long. In order to save the loss and to pay the dues to the workers, the government decided to run the mills by private entrepreneur and accordingly the writ-petitioner was selected, being a textile expert, for managing the said four textile mills. Thereafter, the writ-petitioner entered into a contract with the Bangladesh Textile Mills Corporation (BTMC) as to the management procedure and financial affairs and accordingly obtained loan from 6(six) private Banks namely the (1) Premier Bank Limited, (2) Social Investment Bank Limited, (3) South East Bank Limited, (4) Mutual Trust Bank Limited, (5) Bangladesh Commerce Bank Limited and (6) Jamuna Bank Limited to invest in the said four textile mills for the purpose of importing raw materials from abroad and to maintain the expenses of the said mills including payment of back salaries to the workers. The writ-petitioner, having immense experience in the field, successfully started maintaining the said four textile mills and still doing the same job with success. The writ-petitioner obtained loan of Tk. 395,83,19,572.00 from aforesaid Banks and regularly transacted the said amount in the bank by way of paying back the loan dues and to withdraw the fresh amount from the bank account and in such course of transaction the writ-petitioner had a liability in the bank loan up to the date of filing his income tax return for the assessment year 2006-2007 at an amount of Tk. 18,75,83,796.00 to the said Banks.

Despite the fact of such loan liability on the shoulder and the payment of income tax regularly, the writ-petitioner had some undisclosed money in his hand and taking the privilege of the S.R.O. No. 200/Ain-2005, dated 6^th July, 2005, the writ-petitioner declared his previously undisclosed amount and paid income tax on the said undisclosed amount at an amount of Tk. 33,75,000.00 through Pay Order No. 0177135 of the Bank Asia Limited, MCB. Sk. Mujib Road Branch, Chittagong, dated 17.10.2006.

It has been further stated that the writ-petitioner filed its income tax return for the assessment year 2006-2007 on 18.10.2006 under the Self Assessment Scheme, provided under section 83A(1) of the Income Tax Ordinance 1984 and the Deputy Commissioner of Taxes, Companies Circle-11, Taxes Zone-2, Chittagong, issued the receipt of the return, which deemed to be the finalization of the assessment for the assessment year 2006-2007. Thereafter, the writ-petitioner by availing the privilege of the S.R.O. being No. 98-Ain/2007, dated 4^th June, 2007 paid a penalty @ 5% to the tune of Tk. 28,245.00 on his rest undisclosed income for the assessment year 2006-2007 through the Pay Order No. 6591446 of Sonali Bank Ldt. Agrabad Corporate Branch, Chittagong, on 27.9.2007 and accordingly the writ-petitioner submitted a revised return for the assessment year 2006-2007 to the concerned Deputy Commissioner of Taxes which was duly received.

It has been stated that thereafter the writ-petitioner received a notice from the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, issued on 31.5.2005 under the provision of section 83(1) and 79 of the Income Tax Ordinance 1984 directing him to be present in a hearing on 12.6.2007 in respect of its income tax return for the assessment year 2006-2007.

The writ-petitioner complied the said notice and the authorized representative of the writ petitioner Mr. Omar Bhattacharjee, ITP submitted all the papers and documents in support of the income from (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, before the concerned DCT.

The DCT concern in the meantime made a secret investigation in respect of the writ-petitioners income tax return for the assessment year 2006-2007 through the Tax Inspector of Companies Circle-2, Chittagong, on 8.10.2007 upon which the DCT concern made an assessment on 31.12.2007 for the assessment year 2006-2007 under the provision of section 83A(1), 83A(2)/83(2) of the Income Tax Ordinance 1984. Such a proceeding for the assessment being illegal the writ-petitioner preferred a writ petition on 8.5.2008, before the High Court Division and later obtained a rejection of the writ petition as not pressed and thereafter the writ-petitioner filed a complaint petition, being No. 143 dated 19.8.2008, before the Tax Ombudsmen, under the provision of section 13 of the Tax Ombudsmen Act 2005 against the taxes department. The Tax Ombudsmen upon hearing both the parties delivered his recommendation on 24^th November, 2008 upon which the DCT concern made further assessment on 18.1.2009 relating to the assessment year 2006-2007.

Being aggrieved with and highly dissatisfied by the said assessment order dated 31.12.2007 made by the DCT concern, the writ-petitioner preferred the instant writ petition and obtained the rule as aforementioned.

In Writ Petition No. 5539 of 2009 similar facts have been stated as to the tax return for the assessment year 2006-2007 with an addition that the writ-petitioner submitted its income tax return for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2006-2007 to the Deputy Commissioner of Taxes, Companies Circle-11, Taxes Zone-2, Chittagong, under the Self Assessment Scheme as provided under section 83A of the Income Tax Ordinance 1984. But the DCT concern after the proceeding taken in respect of the assessment year 2006-2007 further initiated proceeding under section 93 of the Income Tax Ordinance 1984 in respect of the assessment year 2003-2004, 2004-2005, 2005-2006 and 2006-2007 and issued show cause notice on 12.3.2008 calling upon the writ-petitioner to explain as to the source of investment and income which have been shown under the provision of S.R.O. 200/Ain/2005, dated 6^th July, 2005 earlier upon which the writ-petitioner deposited huge amount of taxes. The said notice was received by the writ-petitioner on 30.7.2009 against which the writ-petitioner by a letter seriously objected the said proceeding under section 93 of the Income Tax Ordinance 1984. That being not stopped by the DCT concern, the writ-petitioner preferred the instant writ petition No. 5535 of 2009 and obtained the rule as aforementioned.

Respondent’s Contentions.

Pursuant to the service of notice of the rule, the learned Deputy Attorney General Mr. S. Rashed Jahangir along with the learned Assistant Attorney General Ms. Nurun Nahar and Mr. Saikat Basu, appeared on behalf of the Taxes Department and filed affidavit-in-opposition in the respective writ petition.

In Writ Petition No. 4761 of 2009 the taxes department stated that the writ-petitioner was asked to explain the source from where the money was deposited to the bank. But the writ petitioner failed to mention/explain the source of fund and as the writ petitioner did not mention the assessment year in respect of deposit of tax at an amount of Tk. 33,75,000.00 as per S.R.O. 200/Ain/2005, dated 6^th July, 2005, the said declared undisclosed income was remained un-interfered, unchanged by the Tax Ombudsmen as well as the DCT concern. The issuance of receipt under section 83A(1) of the Income Tax Ordinance 1984 is not the final assessment rather the return may be selected for further proceeding as per the section 83A(2) of the Income Tax Ordinance 1984 and on the basis of definite information regarding concealment of income as per the provision of section 83A(5) of the Income Tax Ordinance 1984, the said declared undisclosed income was incredible, absurd, irrelevant, inconsistent against the deposited money of Tk. 395,83,19,572.00 found in several Bank accounts. The National Board of Revenue (NBR) selected the writ petitioners income tax return, filed under Self Assessment Scheme for the purpose of audit and the DCT concern for the purpose of auditing got local investigation report by the Inspector of taxes, issued letter to the writ petitioner informing his intention of audit and issued the notices under section 83A(1) and 79 of the Income Tax Ordinance 1984 directing the writ petitioner for production of books of account, asking for documentary evidence in favour of the shown income, expenditure and other requirement. But the writ petitioner filed a complain before the Honorable Tax Ombudsmen. The writ petitioner failed to produce documents before the Tax Ombudsmen to improve his case and accordingly the Tax Ombudsmen did not interfere the order of the assessment of the DCT concern who put his observation and recommendation regarding the complaint through his recommendation dated 28.11.2008. No injustice was committed to the writ petitioner to enabling him to invoke the writ jurisdiction of the High Court Division. The writ petitioner failed to produce any documents for his source of fund deposited in the bank accounts and accordingly the DCT concern was justified in making assessment of the selected file in accordance with the prior approval of the National Board of Revenue as per the section 83A(2) of the Income Tax Ordinance 1984. The DCT concern complied the recommendation of the Tax Ombudsmen and made the assessment on 18.1.2009 under section 83A(1), 83A(2), 83(2), 156 and section 20(2) of the Tax Ombudsmen Act 2005, without waiting for written order from the National Board of Revenue due to the time constraint of sixty days to implement the order of the Tax Ombudsmen. The instant writ petition is not maintainable under the provision of section 33 of the Tax Ombudsmen Act 2005 and accordingly the respondents have prayed for discharge of the rule.

By a supplementary-affidavit-in-opposition a photocopy of notice dated 22.2.07, issued under নথি নং- ৩৪৯-১০৬-১০০৩-সা-১১/৯১৯, has been filed before this court, stating that the supplementary affidavit is very much necessary for proper disposal of the rule. But without any statement as to the said notice in the supplementary affidavit excepting that an audit was held within the meaning of section 83A(2) of the Income Tax Ordinance 1984 and for the purpose of holding audit a notice dated 22.2.2007 was served upon the assessee-writ petitioner.

In writ petition No. 5539 of 2009 the Taxes Department stated in the affidavit-in-opposition that the concerned DCT came to notice from different sources that the writ petitioner had been maintaining a number of accounts in different banks. Thereafter, the DCT concern collected the bank statement from the said banks, taken prior approval of the Commissioner of Taxes as per the provision of section 113(f) of the Income Tax Ordinance 1984 and huge amount of money was found deposited in the writ petitioners bank accounts. Accordingly, the DCT concern proceeded to re-open the cases from the assessment year 2003-2004 to 2006-2007, under section 93 of the Income Tax Ordinance 1984 for concealment of income. Thereafter, issuing the notice, under section 93, 83(1) and 79 and being empowered under the provision of section 93(3)(b) of the Income Tax Ordinance 1984, the DCT concern re-assessed the income tax cases as he has reason to believe that the writ petitioner has for any assessment year concealed the particulars of his income or furnish inaccurate return thereof or omitted or failed to disclose materials fact for the assessment for such year within five years from the end of assessment year for which the assessment is to be made.

Appraisal of the Facts.

These two writ petitions relates to the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 of the assessee-writ petitioner Nurun Nabi, who having obtained the management of the denationalized Textile Mills namely (1) Amin Textile Limited, (2) R.R. Textile Mills Limited, (3) Dost Textile Mills Limited and (4) Valuka Wollen Mills Limited, previously under the Bangladesh Textile Mills Corporation (BTMC), and upon obtaining loan from four private Banks to the tune of Tk. 395,83,19,572.00, started to manage and administer those denationalized textile mills under the agreement with the government of Bangladesh. Admittedly the writ petitioner is a regular income tax payer and submitted all his income tax returns as aforesaid, under the provision of Self Assessment Scheme prevailing at the relevant period under the provision of section 83A of the Income Tax Ordinance 1984. The said provision of Self Assessment Scheme indicates that upon submission of the return the DCT concern shall issue a receipt of receiving the return under the Self Assessment Scheme and the said receipt shall be treated as a deemed finalization of the assessment for the relevant assessment year. Accordingly, the writ petitioner upon obtaining the receipt from the DCT concern was satisfied as to his finalization of the assessment for those assessment years from 2003-2004 up to 2007-2008.

It appears that the National Board of Revenue under the provision of section 83A(2) of the Income Tax Ordinance 1984 selected the return of the writ petitioner for the assessment year 2006-2007 for audit and it appears from the subsequent assessment order that the DCT concern upon serving notice under section 83(1) and 79 of the Income Tax Ordinance 1984 called upon the writ petitioner to submit certain evidence and to attend the hearing of the re-opening of assessment case for the assessment year 2006-2007. Wherefrom, the dispute arose and ultimately the writ petitioner preferred the instant writ petition challenging the re-opening of the assessment case for the assessment year 2006-2007, before this court.

Arguments of the Parties.

The learned Advocate Mr. Mosharaf Hossain, appearing on behalf of the assessee-writ-petitioner, while taken this court through the provision of section 83A(2) of the Income Tax Ordinance 1984, prevailing during the assessment year 2006-2007, strenuously argued that the National Board of Revenue is empowered under the provision of section 83A(2) of the Income Tax Ordinance 1984 to select for an audit of any return, submitted under the Self Assessment Scheme as provided in the said section 83A of the Income Tax Ordinance 1984 and it is incumbent upon the DCT concern to hold an audit, experte, to make him satisfied as to any prospect of further proceeding with an end to re-open the said assessment and thereafter to serve notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the concerned assessee to submit documents supporting the return and to remain present at the hearing of the case. But the DCT concern did not comply the mandatory provision of section 83A(2) of the Income Tax Ordinance 1984 in respect of holding an audit, rather directly serve the notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the assessee-writ-petitioner to attend the hearing of the re-opened case for the assessment year 2006-2007. That being a palpable illegality the same cannot be sustained under the provision of law and as such the rules are required to be made absolute.

On the other hand the learned Deputy Attorney General Mr. S. Rashed Jahangir, appearing on behalf of the Taxes Department refuted the argument of the assessee-writ-petitioner and submitted that the DCT concern hold an audit after the return, for the assessment year 2006-2007 was selected for audit by the National Board of Revenue under the provision of section 83A(2) of the Income Tax Ordinance 1984 by way of serving a notice dated 22.2.2007, a copy of which has been annexed with the supplementary-affidavit-in-opposition, filed by the Taxes Department. Thereafter, the DCT concern appraising the same direction for his further proceeding to re-open the case, admittedly served notice under section 83(1) and 79 of the Income Tax Ordinance 1984, calling upon the writ petitioner to attend the hearing and to submit the evidence in support of the return. But that not being complied with, the DCT concern had no other alternative but to proceed in making the assessment order, which being lawful under the provision of law, the same cannot be declared to have been passed without lawful authority.

The learned Deputy Attorney General Mr. S. Rashed Jahangir next argued that the writ petitioner availed the provision of Tax Ombudsman Act 2005 and having failed to prove that no audit was held and that any legality committed by the DCT concern, failed to attend the further hearing held by the DCT concern upon getting the recommendation from the Tax Ombudsmen, whereupon the DCT concern further complied the observation as made by the Tax ombudsman and re-assessed the tax liability of the writ petitioner, which being lawful has been erroneously challenged in the instant writ petitions and therefore the rules are required to be discharged by this court.

Further from the Writ Petition No. 5539 of 2009 it appears that the DCT concern upon delivering the re-assessment order in respect of the assessment year 2006-2007, further found that huge amount of transaction has been made by the assessee-writ-petitioner in different banks which was not disclosed earlier in the returns filed under Self Assessment Scheme for the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008 and thereafter the DCT concern upon serving a notice under section 93 of the Income Tax Ordinance 1984 re-opened those assessment years and upon obtaining a report from the Tax Inspector served a different notice upon the writ petitioner lastly on 4.5.2008, but as the writ petitioner preferred the instant writ petition, the same was stopped at that stage.
The learned Advocate Mr. Mosharaf Hossain vigorously argued that the DCT concern committed palpable illegality in re-opening the deemed finalized assessment for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2007-2008 since the assessee-writ-petitioner did not conceal any of the bank transaction as made in respect of the accounts maintained with different banks relating to the denationalized enterprises, as the assessee-writ-petitioner upon disclosing his earlier undisclosed income availed the privilege of S.R.O. No. 200/Ain-2005 dated 6.7.2005 and S.R.O. being No. 98-Ain/2007, dated 4^th June, 2007 and paid a huge amount income tax. Moreover, the Tax Inspector in his report categorically stated about the liability of the assessee-writ-petitioner amounting to Tk. 22,00,00,000.00 which indicates that there is no concealment as to any income of the writ-petitioner for those assessment years.

The learned Advocate Mr. Mosharaf Hossain next argued that by inserting the provision of section 83A(5) of the Income Tax Ordinance 1984 through the Finance Act 2003, the legislature has empowered the DCT concern to re-open a Self Assessment return deemed to be finalized by issuance of the receipt, if definite information came to the possession of the DCT concern. This empowerment made available to the DCT concern to the provision of section 93 of the Income Tax Ordinance 1984 and any Self Assessment return may be re-opened under such provision subject to the provision of section 94 of the Income Tax Ordinance 1984, which prescribed the time limit for such re-opening. The learned Advocate Mr. Mosharaf Hossain, contends that the DCT concern in the instant case failed to understand the implication of section 94 of the Income Tax Ordinance 1984 and without obtaining the prior approval of the Inspecting Joint Commissioner proceeded to re-open the assessment as aforesaid and therefore the instant rule challenging the illegal step taken by the DCT concern is required to be made absolute as have been taken without lawful authority.

The learned Deputy Attorney General Mr. S. Rashed Jahangir in this respect meticulously argued that the provision of section 83A(5) is an independent provision as it contains a non-obstantive clause indicating that irrespective of the provision of re-opening of a deemed assessment under the provision of section 83A(2) of the Income Tax Ordinance 1984, the DCT concern may proceed to reopen any of the Self Assessment Scheme deemed finalized assessment, if definite knowledge of concealment reached to the hands of the DCT concern and in the instant case the DCT concern upon obtaining definite knowledge of bank transaction of a huge amount served the notice under section 93 of the Income Tax Ordinance 1984, being empowered under the provision of section 83A(5) read with section 93 of the Income Tax Ordinance 1984 and all those assessment years having been within five years, the DCT concern lawfully served the notice.

The learned Deputy Attorney General Mr. S. Rashed Jahangir further argued that the DCT concern lawfully proceeded to reopen the deemed finalization of the tax liability for the assessment year 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 2007-2008, since the privilege obtained by the assessee-writ-petitioner under the provision of S.R.O. No. 200/Ain-2005 dated 6.7.2005 and S.R.O. being No. 98-Ain/2007, dated 4^th June, 2007 cannot be treated as have been a fact of non-concealment of income of the assessee-writ-petitioner, since the Tax Inspector in his report categorically stated that the assessee-writ-petitioner transacted huge amount in the bank account but did not mention the same in the Self Assessment return, filed for those assessment years and that being the definite and constructive knowledge of the DCT concern, the issuance of notice under section 93 of the Income Tax Ordinance 1984 was quite lawful and as such the instant rule is required to be discharged.

Deliberation of the Court.

We have heard the learned Advocates and perused the materials on record and we have also meticulously considered the supplementary affidavit being annexed with the photocopy of a notice dated 22.2.2007 and also the respective assessment order passed by the DCT concern, initially for the assessment year 2006-2007 dated 31.12.2007.

The pertinent question raised in writ petition No. 4761 of 2009 is relating to whether the DCT concern complied the provision of section 83A(2) of the Income Tax Ordinance 1984. For a better appraisal we do reproduce the provision of section 83A(2) of the Income Tax Ordinance 1984 prevailing during the assessment year 2006-2007:

Income Tax Ordinance 1984
Section 83A: Self Assessment.—

(1)..........................
(2) Notwithstanding anything contained in sub-section (1) and section 93, the Board or any authority subordinate to the Board, if so authorized by the Board in this behalf, may select, in the manner to be determined by the Board,[a portion, not exceeding twenty percent.] of the returns filed under sub-section (1) and refer the returns so selected to the Deputy commissioner of Taxes for the purpose of audit and the Deputy Commissioner of Taxes shall thereupon proceed, if so required, to make the assessment under section 83 or section 84, as the case may be;

Provided that the Deputy commissioner of Taxes shall not proceed to make any audit in respect of a return, where such return is filed in accordance with rules for self assessment made by the Board for that year and shows at least fifteen percent, higher income than the income last assessed, even if the return is selected for audit.

The aforesaid provision of section 83A(2) of the Income Tax ordinance 1984 is a mandatory provision so far the question of holding an audit is concerned, since the provision contains a “shall” which further indicates that upon holding the audit, the DCT concern shall make him satisfy as to the requirement of further proceeding in respect of reopening of the deemed finalized assessment and thereafter he could assess the relevant return under the provision of section 83 of the Income Tax Ordinance 1984, if the assessee-writ-petitioner remained present at the hearing or under the provision of section 84 if the assessee failed to comply the notice and to attend the hearing before the DCT concern. In any case the holding of an audit is a mandatory one.

In this respect the referred case of Spectra S.N. Tex Limited-Vs-The Commissioner of Taxes, reported in Income Tax Reference No. 39 of 2012, wherein one of us was a party decided as under;

The provision of section 82BB(3) of the Income Tax Ordinance 1984 has an indication that upon auditing the return if the DCT concern considers for fresh assessment, he can proceed for assessment afresh. This provision indicates the two way exercise in the matter, firstly ‘Audit’ and then if required ‘fresh assessment.’ Because, these two words have been used in the section in disjunctive manner indicating step to be taken one after another.

Therefore, it appears that the holding of an audit is a must one.

The learned Deputy Attorney General Mr. S. Rashed Jahangir relied upon the notice Annexure-A in the supplementary affidavit-in-opposition filed in Writ Petition No. 4761 of 2009 and submited that the DCT concern lawfully hold the audit after getting the selection of the Self Assessment return from the National Board of Revenue for audit and therefore the main ground as has been taken by the assessee-writ-petitioner goes. This has prompted us to meticulously examine the point as to the fact of holding of audit by the DCT concern prior to reopening of the deemed finalized assessment for the assessment year 2005-2006.

Annexure-A appended to the supplementary affidavit-in-opposition, as aforesaid, is dated 22.2.2007 which has been issued under the নথি নং- ৩৪৯-১০৬-১০০৩-সা-১১/৯১৯ addressed to জনাব মোঃ নুর্রন্নবী and for a better appraisal the entire Annexure-A is reproduced below;

গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
উপ কর কমিশনারের কার্যালয়
সার্কেল-১১
কর অঞ্চল-২, চট্টগ্রাম।

নথি নং-৩৪৯-১০৬-১০০৩/সা-১১/৯১৯ তারিখ ২২/০২/২০০৭

জনাব মোঃ নুরউন নবী
মালিক মেসার্স

১. অাকতার এন্টারপ্রাইজ

২. বলাকা ট্রেডার্স

৩. এস আর কপোরেশন

৪. নবী এন্ড কোং ৯৩২, শেখ মজিব রোড়, চট্টগ্রাম।

বিষয়ঃ আয়কর অধ্যাদেশ, ১৯৮৪ এর ধারা ৮৩অ (২) এর বিধান অনুযায়ী জাতীয় রাজস্ব বোর্ড কর্তৃক অডিট এর জন্যঅনুমোদন প্রাপ্ত মামলা নিষ্পত্তি ও পরিদর্শন প্রসঙ্গে।

উপর্যুক্ত বিষয়ের প্রতি আপনার দৃষ্টি আকর্ষন করিতেছি।

আয়কর অধ্যাদেশ, ১৯৮৪ এর ধারা ৮৩অ (২) এর বিধান অনুযায়ী স্বনির্ধারণ পদ্ধতিতে দাখিলকৃত রিটার্ন হইতে অডিট করার জন্য জাতীয় রাজস্ব বোর্ডের নথি নং- জারাবো/কর-৭/আঃআঃবিঃ/স্বনির্ধারনী/২০০৫-২০০৬/১৬(১০), তারিখ ০৫.০২.২০০৭ এর মাধোমে আপনার দাখিলকৃত ২০০৬-২০০৭ কর বৎসরের আয়কর রিটার্ণটি পরবর্তী নিরীক্ষা কার্যত্র্রমের জন্য মনোনীত হইয়াছে।

এমতাবস্থায় ২০০৬-২০০৭ কর বর্ষে আপনার দাখিলকৃত সম্পদ বিবরনী ও আয়কর রিটার্ণে প্রদর্শিত আয় অডিটের জন্য নিম্মোক্ত ( চিহ্রিত) তথ্য প্রমান আবশ্যকঃ

১. ব্যাংক হিসাব বিবরনী

২. গৃহ সম্পত্তির পূণাঙ্গ ঠিকানা, আবস্থান, প্রতি তলার আয়তন ও ভাড়া সংক্রান্ত তথ্য ও প্রমাণ

৩. প্রদর্শিত বিক্রয়ের স্বপক্ষে বিক্রয় রেজিষ্টার, মজুদ রেজিষ্টার, ক্যাশ বুক ও লেজার বুক

৪. বিদেশ ভ্রমন সংক্রান্ত তথ্য, পাসপোর্টের কপি, বাড়ী ভাড়া প্রদান সংক্রান্ত তথ্য ও প্রমান, সন্তানদের পড়ালেখা ৫. সংক্রান্ত তথ্য ও প্রমান, বিদ্যুত বিল ও টেলিফোন বিলের কপি

৬. সুদ/ ডিভিডেন্ড ওয়ারেন্ট জমা হওয়ার স্বপক্ষে ব্যাংক বিবরনী

৭. আয়কর বিধি-৮ মোতাবেক রক্ষিত হিসাবের খাতাপত্র (ডাক্তার ও এডভোকেট করদাতাদের ক্ষেত্রে প্রযোজ্য)

আমদানী/রপ্তানী সংক্রান্ত তথ্য এবং সাপোর্টিং ব্যাংক বিবরনী

৮. ১৯এএএ ধারায় বিনিয়োগের সমর্থনে প্রমান্য কাগজপত্র

৯. অন্যান্য প্রমানপত্র (যদি থাকে)

উপরে বর্ণিত তথ্যাদি/কাগজপত্র আগামী ২৭/০৩/২০০৭ ইং তারিখের মধ্যে অফিস চলাকালিন সময় নিম্নস্বাক্ষরকারীর বরাবরে দাখিলের জন্য অনুরোধ করা হইল। উল্লেখ্য যে, বর্ণিত তথ্য প্রমান দাখিল না করিলে বা দাখিলকৃত প্রমাণাদি সন্তোষজনক বিবেচিত না হইলে আপনার দাখিলকৃত স্বনির্ধারিত রিটার্ণটিকে সাধারন রিটার্ণ হিসাবে গণ্য করিয়া কর মামলা নিষ্পন্নের ব্যবস্থা গ্রহন করা হইবে। বিশেষভাবে উল্লেখ্য যে, আপনার দাখিলকৃত কাগজপত্র দ্বারা যদি স্বনির্ধারনী পদ্ধতিতে দাখিলকৃত রিটার্ণ ব্যাখ্যায়িত হয় তবে তাহা নিরীক্ষা কার্যক্রম হইতে বাদ দেওয়া হইবে।

জাতীয় রাজস্ব আহরণ ও সঠিক কর নিরুপনের স্বার্থে আপনার সহযোগিতা একান্ত কাম্।

মোঃ মনিরুজ্জামান
সহকারী কর কমিশনার
সার্কেল-১১
কর অঞ্চল-২, চট্টগ্রাম।

The genuinity of the aforesaid Annexure-A dated 22.2.2007 has been seriously assailed by the learned Advocate Mr. Mosharaf Hossain, appearing on behalf of the assessee-writ-petitioner, for which we have considered the assessment order dated 31.12.2007 made by the DCT concern for the assessment year 2006-2007, wherein the opening Paragraph contain the following statement of the DCT concern appears;

"কর নির্ধারন আদেশ"
বিবেচ্য করবর্ষে মোট আয় ৬,০৮,০০০/- প্রদর্শন করতঃ করদাতা কর্তৃক স্ব-নির্ধারনী পদ্বতিতে আয়কর রিটার্ন দাখিল করিলে বিবেচ্য কর মামলাটি প্রথমে আয়কর অধ্যাদেশের ৮৩এ(১) ধারায় নিস্পন্ন করা হয়। পরবর্তীতে জাতীয় রাজস্ব বোর্ডের পত্র নং-জারাবো/কর-সা/আঃআঃবিঃ/স্বণির্ধারনী/২০০৫-২০০৬/১৬ তারিখ ৫-২-২০০৭ ইং মোতাবেক আয়কর অধ্যাদেশের ৮৩এ এর উপ-ধারা (২) এর বিধান অনুযায়ী আলোচ্য করবর্ষের স্ব-নির্ধারন পদ্বতি দাখিলকৃত উক্ত রিটার্ন নীরিক্ষার জন্য নির্বাচিত হয়।এমতাবসহায়, আয়কর অধ্যাদেশের ৮৩অ(১) ও ৭৯ ধারার নোটিশ সুনির্দিষ্ট চাহিদাপত্র সহ জারি করিয়া কর মামলা শুনানীর জন্য ১২-৬-২০০৭ ইং তারিখ ধার্য্য করিয়া সংগে এই অফিসের ৩১-৫-২০০৭ ইং তারিখে জারীকৃত পত্রের মাধ্যমে করদাতাকে বিষয়টি অবহিত করা হয় . .. . . . .''

From the aforesaid statement it appears that upon getting the return for the assessment year 2006-2007, as selected by the National Board of Revenue, the DCT concern directly issued the notice under section 83(1) and 79 of the Income Tax Ordinance 1984 to the Assessee-writ-petitioner, since nothing has been mentioned in the relevant portion of the assessment order as to the issuance of any notice, for holding audit, dated 22.2.2007. The Assessee-writ-petitioner, challenging the aforesaid assessment dated 31.12.2007, went to the Tax Ombudsmen under the provision of section 20 of the Tax Ombudsmen Act 2005, being complaint No. 143 dated 19.8.2008, upon which the DCT concern contested the said complaint case by filing a written explanation, which was considered by the Tax Ombudsmen in its judgment dated 24.11.2008. The relevant Paragraph in the judgment runs as follows;

অভিযোগ পত্রের অনুলিপি প্রেরণপূর্বক অভিযোগ বিষয়ের অভিযুক্ত কর কর্মকর্তাকে ব্যাখ্যা দাখিলের জন্য নোটিশ জারী করা হয়। জবাবে সার্কেলে নিয়োজিত কর কর্মকর্তা লিখিত ব্যাখ্যা দাখিল করেন। ব্যখ্যায় তিনি জানান যে করদাতা ২০০৬-২০০৭ কর বৎসরের স্ব-নির্ধারন পদ্বতি রিটার্নে কমিশন ব্যবসার আয়, কৃষি আয় ও গৃহ সম্পত্তি হইতে মোট আয় প্রদর্শন করেন ৬,০৮,০০০/- পরবর্তীতে জাতীয় রাজস্ব বোর্ডের নির্দেশনা মেতাবেক রিটার্ন নীরিক্ষার জন্য নির্বাচিত হয়। নীরিক্ষা কার্যত্র্রমের অংশ হিসাবে করদাতাকে ৮৩(১) ও ৭৯ ধারার নোটিশ প্রদানপুর্বক প্রদর্শিত আয় প্রমানের সুযোগ দেওয়া হয়। কিন্তু করদাতার প্রতিনিধি শুনানীতে হাজির হইলেও কোন তথ্য প্রমান দাখিল করিতে ব্যর্থ হন। তাই করদাতার আয়ের উৎস সম্পর্কে কর পরিদর্শক দ্বারা তথ্য সংগ্রহ এবং উহা পর্যালোচনাপূর্বক ৮৩(এ)(১)/৮৩(এ)(২)/৮৩(২) ধারায় কর নির্ধারণ করা হয়।

This statement also proves that the DCT concern has not stated anything before the Tax Ombudsmen as to the issuance of the notice dated 22.2.2007.

It appears that the Assessee-writ-petitioner in Writ Petition No. 4761 of 2009 has categorically raised the objection that the DCT concern did not hold any audit after getting the selected return from the National Board of Revenue. But nothing has been said in the affidavit-in-opposition as to the allegation of non-holding of audit, rather it has been admitted in Paragraph No. 10 in the affidavit-in-opposition that the DCT concern “for the purpose of auditing got local investigation report by the respective Inspector of Taxes, issued letter informing the Assessee-writ-petitioner his intention of audit and issued notices under section 83A(1) and 79 of the Income Tax Ordinance 1984 for production of books of accounts asking for documentary evidences in favour of the shown income, expenditure and other requirement found in the Inspectors report and consequently the DCT concern had to dispose of the cases under section 83A(1)/83A(2)/83(2) of the Income Tax Ordinance 1984.

All these statements and claim in the affidavit-in-opposition indicates and establishes the fact that the Annexure-A which has been annexed to the supplementary-affidavit-in-opposition is a tainted one. Had it been a genuine document, the DCT concern would definitely mentioned the same in his assessment order and even, failing to mention the same in the assessment order, it would have been mentioned before the Tax Ombudsmen as to such failure or even he could mention in the affidavit-in-opposition as to such failure in mentioning the said notice in the assessment order or before the Tax Ombudsmen with an explanation as to such failure. But nothing has been done excepting by way of filing a photocopy of the said notice annexing the same with the affidavit-in-opposition with a flimsy statement that audit was held within the meaning of section 83A(2) of the Income Tax Ordinance 1984 and for the purpose of holding audit a notice dated 22.2.2007 was served upon the Assessee-writ-petitioner. This sort of activity of the tax executive is not only deplorable but liable to be taken into consideration seriously. The supplementary affidavit was sowrn in by one Alamgir Kabir, Assistant Commissioner of Taxes, Chittagong, who supplied the said photocopy to the learned Deputy Attorney General Mr. S. Rashed Jahangir and be fooled him in considering the said documents as a genuine document and to submit the same before this Highest Court. Therefore, a serious action is required to be taken against the Assistant Commissioner of Taxes Mr. Alamgir Kabir by the tax department or the National Board of Revenue upon getting this judgment at their end.

It appears that no audit was held after the deemed finalized Self Assessment return, for the assessment year 2006-2007, was selected by the National Board of Revenue and that being a mandatory provision of law any violation of the same renders the further proceeding a nullity. This court finds with firm believe that the DCT concern without lawful authority thereafter proceeded to reopen the assessment, for the assessment year 2006-2007, harassing the assessee-writ-petitioner to travel up to Tax Ombudsmen and to the highest court of the country, incurring a great monetary expenses.

In Writ Petition No. 5539 of 2009 the re-opening of the deemed finalization for the assessment year 2003-2004, 2004-2005, 2005-2006 and 2007-2008 has been challenged wherein, it appears, that after the deemed finalization of the assessment on the assessment year 2006-2007, the concerned DCT served a notice under section 93 of the Income Tax Ordinance 1984 on the assessee-writ-petitioner showing his intention to re-open the deemed finalization of the tax liability of the aforesaid assessment years.

The learned Deputy Attorney General Mr. S. Rashed Jahangir has correctly argued before this court that the provision of section 83A(2) of the Income Tax Ordinance 1984 has rendered a gateway to the DCT concern to invoke the provision of section 93 of the Income Tax Ordinance 1984 to re-open any deemed finalization of the assessment, since the Finance Act 2003 has inserted the said provision in the section which is therefore applicable from the Assessment year 2004-2005. From the provision of section 83A(5) of the Income Tax Ordinance 1984 it appears that the criteria as to possessing definite information by the DCT concern, is an important requirement to obtain the gateway to enter into the provision of section 93 of the Income Tax Ordinance 1984.

The Provision of section 93 of the Income Tax Ordinance 1984 reads as follows, prevailing at that time;

Income Tax Ordinance 1984
Section 93: Assessment in case of income escaping assessment, etc.—

If, for any reason, any income chargeable to tax for any assessment, year has escaped assessment or has been under assessed or has been assessed at too low a rate or has been the subject of excessive relief or refund under this Ordinance, the Deputy Commissioner of Taxes may issue a notice to the assessee containing all or any of the requirements which may be included in a notice under section 77 and may proceed to assess or determine, by an order in writing, the total income of the assessee or the tax payable by him, as the case may be, and all the provisions of this Ordinance shall, so far as may be, apply accordingly:-

Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made.

No proceeding under sub-section (1) shall be initiated unless definite information has come into the possession of the Deputy Commissioner of Taxes [and he has obtained] the previous approval of the Inspecting Joint Commissioner in writing to do so, except in a case where a return has not been filed under section 75 or 77.
A notice under sub-section (1) may be issued by the Deputy Commissioner of Taxes,--

a) in any case in which he has reason to believe that the assessee or any other person on his behalf has not filed a return under section 75 or 77, at any time;

b) in any case in which he has reason to believe that the assessee has for any assessment year concealed the particulars of his income or furnished inaccurate particulars thereof or omitted or failed to disclose all material facts necessary for the assessment for such year, within [five years] from the end of the assessment year for which the assessment is to be made.

Provided that in a case where a fresh assessment is made for any assessment year in pursuance of an order sections 120, 121, 156 or 159, the period of [five years] referred to in this clause shall commence from the end of the year in which the fresh assessment is made;

c) in any other case, within two years from the end of the assessment year for which the assessment is to be made.

In computing the period of limitation for the purpose of making an assessment or taking any other proceedings under this Ordinance, the period, if any, for which such assessment or other proceeding has been stayed by any Court, tribunal or any other authority, shall be excluded.
Notwithstanding anything contained in sub-section (3), where an assessment or any order has been annulled, set aside, cancelled or modified, the concerned income tax authority may start the proceedings from the stage next preceding the stage at which such annulment, setting aside, cancellation or modification took place, and nothing contained in this Ordinance shall render necessary the re-issue of any notice which has already been issued or the re-furnishing or refiling of any return, statement or other particulars which has already been furnished or filed, as the case may be.

Provided that the tax shall be charged at the rate or rates applicable to the assessment year for which the assessment is made.

The aforesaid provision of sub-section (2) of section 93 of the Income Tax Ordinance 1984 further provides for two requirement in respect of reopening of any deemed finalization of any tax liability of an assessee which are (1) possession of definite information and (2) approval of the Inspecting Joint Commissioner in writing.

The learned Advocate Mr. Mosharaf Hossain categorically argued that no such definite information or prior approval of the Inspecting Joint Commissioner was obtained by the DCT concern.

It appears that the DCT concern has obtained a Tax inspectors report which has been annexed as Annexure-D in Writ Petition No. 5539 of 2009, wherefrom it appears that the Tax Inspector had found that there was a bank statement of different banks in the official income tax file, submitted by the asessee and accordingly he stated “নথিতে রক্ষিত করদাতা কর্তৃক দাখিলকৃত বিভিন্ন ব্যাংক বিবরণী হইতে আলোচ্য বর্ষের ব্যাংক হিসাবের মোট জমা উওোলন চিত্র নিম্মে দেওয়া হইল”

Thereafter, the tax inspector in the annexure table, appended with the report made a statement of the transaction in The Premier Bank, Agrabad Branch, Social Investment Bank, Agrabad Branch, Jamuna Bank Limited, Agrabad Branch, Southeast Bank Limited, Agrabad Branch, Mutual Trust Bank, Khatungonj Branch, Bangladesh Commerce Bank, Agrabad Branch and Jamuna Bank Limited, Bhatiary Branch, wherefrom it appears that an amount of Tk. 395,83,19,572.00 was deposited in the bank account against which a withdrawal was made of an amount of Tk. 414,59,03,368.00. This shows that a liability approximately amounting to Tk. 22,00,00,000.00 is remaining against the assessee-writ-petitioner, which the learned Advocate Mr. Mosharaf Hossain explained as a bank loan liability of the assessee-writ-petitioner in respect of the administration and maintenance of the four denationalized textile mills.

As the Tax Inspector has admitted that the assessee-writ-petitioner has submitted the bank statements before him no concealment of the documents can be alleged against the assessee-writ-petitioner. Further it appears that nothing has been said in the affidavit-in-opposition as to the categorical allegation of non-obtaining the prior approval of Inspecting Joint Commissioner, as has been alleged by the assessee-writ-petitioner. The opening version of sub-section 2 of section 93 of the Income Tax Ordinance 1984 categorically provide that No proceeding under section 93(1) can be initiated unless the criterion of sub section (2) is observed. Therefore, this court finds that the DCT concern has failed to comply the mandatory provision of section 83A(5) and section 93(2) of the Income Tax Ordinance 1984 which left the step under section 93 of the Income Tax Ordinance 1984, nugatory one.

Another pertinent question lies here.

The learned Advocate Mr. Mosharaf Hossain has drawn the attention of this court to the provision of section 94 of the Income Tax Ordinance 1984 which has provided a time limitation in respect of the assessment of any income tax liability after the filing of the return. In his opinion the deemed finalization assessment under the provision of section 83A(1) of the Income Tax Ordinance 1984 cannot be re-opened after 15 (fifteen) months or under the provision of section 93 of the Income Tax Ordinance 1984 after two years and any attempt to re-open the deemed finalization of the assessment after that period will be a nullity.

The provision of section 94 of the Income Tax Ordinance 1984 prevailing at that period reads as follows;

Income Tax Ordinance 1984
Section 94: Limitation for assessment.—

(1) Subject to the provisions of sub-sections (2) and (3), no order of assessment under the provisions of this Chapter in respect of any income shall be made after the expiry of six months from the end of the assessment year in which the income was first assessable.

(1A) Notwithstanding anything contained in sub-section (1) no order of assessment under sub-section (2) of section 82B or sub-section (2) of section 83A shall be made-

(a) after the expiry of two years from the end of the assessment year in which the income was first assessable; or

(b) after the expiry of the period of fifteen months from the end of the month in which the return is submitted, whichever is earlier.

(2) Notwithstanding anything contained in sub-section (1) assessment under section 93 may be made—

(a) in the cases falling under section 93(3) (a) and (b), within [two years] from the end of (b) the year in which notice under the said sub-section was issued; and

in the cases falling under section 93(3)(c), within [one year] from the end of the year in which notice under the said sub-section was issued.

(3) Notwithstanding anything contained in this section, limiting the time within which any action may be taken, or any order or assessment may be made, order or assessment, as the case may be, to be made on the assessee or any other person in consequence of, or to give effect to, any finding or direction contained in an order under sections 120, 121,156,159,161 or 162 or, in the case of a firm, an assessment to be made on a partner of a firm in consequence of an assessment made on the firm, [shall be made within thirty days] from the date on which the order was communicated and such revised order shall be communicated to the assessee within thirty days next following;

Provided that where an order of assessment has been set aside by any authority in that case the assessment shall be made within forty five days from the date on which the order was communicated to him.

Explanation I—Where, by an order under sections 120, 121, 156, 159,161 or 162, any income is excluded from the total income of the assessee for an assessment year, an assessment of such income for another assessment year shall, for the purposes of this section, be deemed to be one made in consequence of, or to give effect to, any finding or direction contained in the said order.
Explanation II—Where, by an order under sections 120, 121, 156, 159, 161 or 162, any income is excluded from the total income of one person and held to be the income of another person, an assessment of such income of such other person, shall, for the purposes of this section, be deemed to be one made in consequence of or to give effect to, any finding o r direction contained in the said order.

(4) Where the Deputy Commissioner of Taxes fails to give effect to any finding or direction contained in an order referred to in sub-section (3) within the period stipulated therein, such failure of the Deputy Commissioner of Taxes shall be construed as misconduct.

It appears from section 94(2) of the Income Tax Ordinance 1984 that the limitation of two years have been provided in the said section meaning thereby that the provision of section 93(3)(a) and (b) of the Income Tax Ordinance 1984 is applicable both for ordinary and the Self Assessment Scheme and in case of Self Assessment Scheme the same became barred after the elapse of two years and the provision of section 93(3)(a) and (b) cannot be invoked after the assessment barred by limitation under the provision of section 94(2) of the Income Tax Ordinance 1984. Because, the Self Assessment Scheme is a privilege and on an from the issuance of the receipt by the DCT concern as to receiving of a compliant return the same became finalized which become absolute after the elapse of two years, as provided in section 94(2) of the Income Tax Ordinance 1984. But the provision of section 93(2) being applicable for ordinary assessment will remain applicable as against five years of any assessment made in ordinary manner. Therefore, this court also on this count finds that the action taken by the DCT concern in respect of re-opening of the Self Assessment return after two years, by way of serving a notice dated 12.3.2008, calling upon the assessee-writ-petitioner to explain as to his six banks accounts, is a palpable illegality committed by him and as such this court is inclined to hold that the issuance of such notice and all other subsequent notices was of without lawful authority having no legal implication.

Under the reasoning and discussion as above, this court finds merit in both the rules Nisi issued in Writ Petitions being No. 4761 of 2009 of 2009 and Writ Petition No. 5539 of 2009, which are required to be made absolute.

In the result, both the rules Nisi are made absolute.

The impugned assessment order dated 18.1.2009 under section 83A(1) /83A(2) /83(2)/156/section 20(2) of the Tax Ombudsmen Act 2005, by the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, for the assessment year 2006-2007, Annexure-F of the assessee-writ-petitioner is relating to Writ Petition No. 4761 of 2009 and the impugned notice dated 30.3.2008 and 4.5.2008 under section 93 of the Income Tax Ordinance 1984, issued by the Deputy Commissioner of Taxes, Companies Circle-2, Taxes Zone-1, Chittagong, so per as to relates the assessment of income of the assessee-writ-petitioner for the assessment year 2003-2004, 2004-2005, 2005-2006 Annexure-F and F(1) and the notice dated 24.5.2009 asking the writ-petitioner to produce books of accounts and other documents for the assessment of income of the writ-petitioner for the assessment year 2003-2004, 2004-2005 and 2005-2006, Annexure-H as challenged in the Writ Petition No. 5539 of 2009 are hereby declared to have been issued without lawful authority having no legal implication.

However, there shall be no order as to costs.

Ed.

Nurun Nessa and others Vs. Babar Ali Bepari and others, 33 DLR (AD) (1981) 124

Case No: Civil Appeal No. 100 of 1979

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Citation: 33 DLR (AD) (1981) 124

Case Year: 1981

Appellant: Nurun Nessa and others

Respondent: Babar Ali Bepari and others

Subject: Power of Attorney,

Delivery Date: 1980-8-27

Supreme Court
Appellate Division
(Civil)

Present:
Kemaluddin Hossain CJ
Ruhul Islam J
Badrul Haider Chowdhury J

Nurun Nessa and ors
…………………..Appellants
Vs.
Babr Ali Bepari and others
.............................. Respondents

Judgment
August 27, 1980.

Power of Attorney
A power of attorney executed as required by the Registration Act confers power on the attorney to act.
A power of attorney executed in terms of Registration Act or under other provisions of law which confers a valid power on the attorney to act as an agent for the principal does not require registration except that its authentication under the law is necessary. ………..…. (5)

Lawyers Involved:
M.G. Rabbani, Advocate, instructed by B.C.Panday, Advocate-on-Record.—For the Appellants.
S.M. Huq, Advocate-on-Rccord.—For the Respondents 3-7 and 9-11.
K.A. Bakr, Attorney-General, instructed by B.Hossain, Advocate-on-Record.—Under Rule 1, Order XLV S.C. (A.D.) Rules, 1973.
S.R. Pal, Senior Advocate. — Amicus Curiae.

Civil Appeal No. 100 of 1979.
(From the Judgment and Decree dated 19.3.76 passed by the High Court Division in S. A. No. 973.)

JUDGMENT

K. Hossian CJ.

This appeal is by the heirs of the original plaintiff and the question of law involved is of some public importance in that, whether a power of attorney executed in India and authenticated by a Magistrate in India and not authenticated by any authorised officer of Diplomatic Mission of the then Pakistan in Calcutta is a valid document in Bangladesh which could be acted upon. Facts in short are, that the plaintiff Haji Abdul Karim migrated to the then East Pakistan in the latter part of 1357 B.S. The suit lands originally belonged to Bhattacharjees who orally settled the 'Ka' schedule lands and another plot of land to the plaintiff's son Abdul Jabbar and allowed the plaintiff to possess the 'Kha schedule land by an amalnama dated 20th Bhadra, 1359 B.S. and that on 19.2.58 Abdul Jabbar sold the land to one Siman Sardar from whom the plaintiff purchased on 22.9.58. Bhattacharjees also made a contract to sell the 'Kha' schedule and other lands to the plaintiff, but thereafter the Bhattacharjees went to India and as they could not return, by a General Power of Attorney dated 9.4.56 (Ext.4) they appointed one Ansaruddin Biswas as their attorney who subsequently executed a deed of sale in favour of the plaintiff on 8.10.56 and that the plaintiff thus became the owner of the suit lands and was possessing it, but it having been wrongly recorded in the name of the defendant-respondents, he was compelled to file the suit.

2. The defendant-respondents 1 to 11 excepting the respondent 2 contested the suit by filing a joint written statement admitting that the suit lands belonged to Bhattacharjees; but alleging, inter alia, that the Bhattacharjees settled the suit lands to the defendants 1, 3 and 4 who thereafter sold a portion thereof to the other contesting defendants and   that they were possessing the land.

3. With regard to the 'Ka' schedule land, the plaintiff claimed that he took settlement from the Bhattacharjees by Exts 1 and 1 (a) which have been concurrently held by the Courts below that they were invalid and the plaintiff did not acquire any title to them and no leave was granted on the issue.

4. As regards to the 'Kha' schedule lands all the three Courts below have   non-suited the plaintiff on the ground that his claim to the land on the basis of the Kabala Ext. 3 e), and the power of attorney Ext. 4 on the basis of which the Kabala was granted, did not confer legal title to the plaintiff. The first appellate Court reversed the finding of the trial Court but on the legality of the document both the first appellate Court and the High Court Division held that the Kabala in favour of the plaintiff was invalid since the power of attorney was invalid as it was not registered and also because the authentication of the signature before the Magistrate at Alipore was not a legal authentication, since it was not authenticated by an officer of the Diplomatic Mission. It was revalidated on payment of required stamps.

5. The point arising in this appeal has been set out earlier. Before dealing with the basic question an observation made by the learned Single Judge of the High Court Division to which the learned Attorney- General has taken exception to as a correct proposition of law requires to be mentioned. It has been observed by the learned Judge that the power of attorney is not a document which requires to be compulsorily registered under the law, but he further says if such power of attorney empowers a person to execute a deed of sale of any kind of transfer or sale of immovable property that power of attorney requires registration under the law, The latter proposition has no foundation in law. This observation is not legally tenable as a power of attorney executed in terms of Registration Act or under other provisions of law which confers a valid power on the attorney to act as an agent for the principal does not require registration except that its authentications under the law is necessary. The contention of the learned Attorney General is upheld.

6. We now come to the discussion on the question involved in this appeal. The question is; whether a power of attorney authenticated before a Magistrate at Alipore in India is admissible in Bangladesh as a valid power of attorney. On this question we have had the advantage of hearing the learned and able argument of Mr.S.R. Pal who appeared to assist the Court as an Arnicas Curiae at our request. We got also able assistance from the learned Attorney-General.

7. For the validity of a power of attorney we are to refer to some of the provisions of section 33 of the Registration Act, 1908 and sections 56, 78(6) and 85 of the Evidence Act, The Notaries Ordinance, 1961 and Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (Act XXI of 1948). The relevant provisions of these Acts may be indicated in substance.

8. Section 33 of the Registration Act says that for the purposes of section 32 the power of attorney shall alone be recognised and here we exclude all other excepting which is relevant   for our purpose and that is in clause (c) which says if the principal at any time aforesaid does not reside in Bangladesh a power of attorney executed before an authenticated Notary Public, or any Court, Judge, Magistrate, Bangladesh Consul or Vice Consul or representative of the Central Government? The other provisions need not be mentioned. The rule next that calls attention is sub-section(4) which says; any power of attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court herein-before mentioned in this behalf.

9. We now refer to some of the relevant provisions of the Evidence Act 1872. Section 85 says, the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by a Notary Public, or any Court, Judge, Magistrate, Bangladesh Consul or Vice-Consul or representative of the Central Government was so executed and authenticated. Along with this we are to refer to section 57(6) of the Evidence Act. which says, that the Court shall take judicial notice of all seals of English Courts, the seals of all the Courts in Bangladesh and all the Courts out of Bangladesh established by the authority of the Central Government or the Government representative, the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all .seals which any person is authorised to use by any Act of Parliament of the United Kingdom or other Act or Regulation having the force of law in Bangladesh. Another provision of the Evidence Act that requires to be mentioned is section 78(6) which says, that public document of any other class in a foreign country may be proved by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Bangladesh Consul or diplomatic agent, that the copy is duly certified by the Officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

10. We may now take the salient provisions of the Notaries Ordinance, 1961. Section 14 relates to the notarial acts done to the foreign country and it says, that if the Central Government is satisfied that by the law or practice of any country or place outside Bangladesh the "notarial acts done by notaries within Bangladesh are recognised for all or any limited purposes in that country or place the Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within such country or place shall be recognised within Bangladesh for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.

11. A salient provision from the Diplomatic and Consular Officers (Oaths and Fees) Act, 148 may now be mentioned and it is section 3 and the substance of which may be set out. It says, every diplomatic or consular officer of Bangladesh exercising his functions in any foreign country or place, or any such diplomatic or consular officer of a foreign country as in writing authorised in this behalf by the Government in relation to any foreign country or place, may, in that country or place, administer any oath or affirmation and lake any affidavit and also do any notarial act which any notary public may do within the territory of Bangladesh, and every such oath, affirmation, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in any part of Bangladesh. The section further provides in sub-section (2) that, any document purporting to have affixed, impressed, or subscribed thereon or thereto, the seal and signature of any person 'authorised by this section to administer an oath in testimony of any oath, affirmation, affidavit, or act being administered, sworn or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of the person, or of the official character of that person.

12. These are all the relevant statutory provisions on the subject. A combined reading of all the relevant provisions does indicate that where there is reciprocal arrangement for re organisation of notarial acts done by foreign notary as contemplated in section 14 of the Notaries Ordinance, a power of attorney, which is one of the acts of Notaries of foreign country, will be recognised in Bangladesh. There is no difficulty so far as the application of this section is concerned but as we understand from the argument of learned Attorney-General who has told us that he has been informed by the Government that Bangladesh at present does not have any reciprocal arrangement with any foreign country as contemplated in section 14 of the Notaries Ordinance, 1961. We have further been told that notarial acts duly attested by the Bangladesh Missions situated outside Bangladesh are recognised within Bangladesh.

13. So far as the second part of the information is concerned it is partly in conformity with section 3 of Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. But this does not fully answer the question. The question is if a notarial act is done in a foreign country by a foreign notary, whether that is valid as power of attorney to be acted upon in   Bangladesh. We have already got in section 14 of the Notaries Ordinance, 1961 that if there is reciprocal arrangement then by reference to section 14 of the Ordinance, 1961 and section 33 of the Registration Act, those notarial acts will be valid and the documents admissible in Bangladesh.

14. If there is no reciprocal arrangement question is whether by reference to section 14 of the Notaries Ordinance, 1961 it could be said foreign notarial acts will not be recognised as a valid act or the document. A reading of section 14 does not indicate any such prohibition or exclusion. It is a permissive section and lays down the conditions of acceptance of foreign notarial acts. If the conditions set out in the section are fulfilled, that is reciprocal arrangement arrived at by the Bangladesh Government with the foreign Government under the conditions set out in the section, the notarial acts in the reciprocating countries will be recognised in Bangladesh. There being no express prohibition in section 14, we can look to other laws in Bangladesh to find whether the notarial acts in foreign countries could be acted upon.

15. The answer to this is section 85 of Evidence Act and clause (3) of section 33 of the Registration Act. It is to be observed that the Law of Nations recognises foreign notarial acts. On foreign notarial acts two decisions may be cited which may be of some assistance for our purpose. In the case of A.J. Primorose 16 Cal. 776, it has been held that where a power of attorney executed in Scot and but which was not authenticated by any of the authenticators shown in section 85 of the Evidence Act it was not admissible in an Indian Court. It has been clearly held that power of attorney which was executed before and authenticated by a Notary Public or any Court or Judge, Magistrate could be accepted, but it was done before a person not mentioned in sec. 85 of the Evidence Act and so it could not be accepted. This view by its contrary formulation has asserted the affirmative provision of sec. 85 of the Evidence Act. We may refer to an English decision of about hundred years back relating to the notarial acts done in a foreign country in Cook Vs Willby, 25 Ch. Division 769. In that case an affidavit was sworn in foreign parts out of Her Majesty's dominions before a notary public and that the nearest of Her Majesty's consuls or vice-consuls was resident at a distance of 150 miles from the place where the affidavit was sworn and the question arose whether it was admissible. An earlier decision of an affidavit sworn in the United States was cited and on the authority of the said decision, it was held to be admissible. The relevant passages merit quotation:

"In Naggit vs. Iniff the Court of Appeal held that the old practice which had previously prevailed in the Court of Chancery was not abrogated by the Acts 15 and 16, Vict.o. 86 and that, as there appeared nothing in the Act to exclude it, an affidavit sworn before a notary public in the United States, where notaries public were authorised by law to administer oaths in any law proceedings in that country, might be filed. "In the present case the evidence shows that the person before whom the affidavit has been sworn is a notary public and that in the State in question a notary public can administer an oath."

16. These two decisions therefore clearly establish the fact that notarial act in foreign country having no reciprocal arrangement can be accepted into evidence, if there is evidence to show that the person before whom the notarial act was done was notary public and that the state in which the notarial act was done authorised him by law to do the notarial acts. These two decisions therefore, show that apart from the requirement of section 14 of the Notaries Ordinance, 1961, if a notarial act takes place in a foreign country, the person asking the Court to accept the notarial acts done in a foreign notary can do so by showing that the law of that country authorised notarial acts to be done by Notaries as they are so done in Bangladesh and by proving the authentication made by the Notary Public. We, therefore, find that the notarial acts done in foreign country can be accepted in this country provided the conditions set out are satisfied.

17. Mr. K.A, Bakr, learned Attorney-General has cited two decision, one is Bengal Friends & Co. Vs Gour Benode Shaha, (1969) 21 D.L.R (SC) 353—PLD 1969 S.C. 477 which deals with the manner of proving certified copies of foreign judgments, and Sarder Singh vs. Pissumal H, Bankers AIR 1958 Andhrara Pradesh, 107 where it has been held that where a power of attorney registered in Pakistan and carrying endorsement of Registrar of that country is produced in India, the presumption of section 85 does not arise. These two decisions are not very relevant to the question before us.

18. We now turn to the facts of the present case. It appears that the power of attorney was authenticated before a Magistrate at Alipore, India and it was produced before the Court in Bangladesh after validating it with local stamps. The Courts below have held that it is not admissible. The manner in which it has been produced no doubt supports the conclusion of the Court below, but not with the law on the subject. It being a notarial act in a foreign country where there is no reciprocal arrangement, it could he proved in the manner we have set out above, namely, that the Magistrate at Alipore by the law or practice having the force of law in India, is authorised to authenticate power of attorney and that it was duly authenticated by the Magistrate. This is a matter of evidence. The person seeking to prove may take recourse to the relevant provisions of the law to discharge this onus of proof.

In this view of the matter, we allow the appeal and set aside the orders of the High Court Division and that of the Court of Appeal below and remit the case back to the first appellate Court on the question of title to the (Kha) schedule lands of the plaint. The parties will have opportunity to prove the power of attorney in the manner indicated above and in accordance with law, we, however, make no order as to costs.

Ed.

Nuruzzaman Sarkar Vs. Seraj Mia & others

Case No: Civil Appeal No. 93 of 1985.

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Moksudur Rahman,Mr. T.H. Khan,,

Citation: 41 DLR (AD) (1989) 106

Case Year: 1989

Appellant: Nuruzzaman Sarkar

Respondent: Seraj Mia & others

Subject: Property Law,

Delivery Date: 1988-08-10

Nuruzzaman Sarkar Vs. Seraj Mia & others
41 DLR (AD) (1989) 106

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Nuruzzaman Sarkar.........................................Petitioner
Vs.
Seraj Mia & ors...........................................Respondents

Judgment
August 10, 1988.

The Specific Relief Act, 1877 (1 of 1877)
Section 42

The plaintiff-appellant do not have exclusive title over the entire suit land. On the contrary greater part of the suit land is in fact enemy and vested property. The plaintiff-appellant therefore is not entitled to a decree of declaration of title under section 42 of the specific relief act for the entire disputed property. The plaintiff may however seek remedy by way of partition in an appropriate forum. …………..(6)

Lawyers Involved:
T.H. Khan, Senior Advocate, M.A. Wahab Mia, Advocate with him, instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Appellant.
Kh. Mahbubuddin Ahmed, Senior Advocate, Mahbubey Alam, Advocate with him, instructed by Sharifuddin Chaklader, Advocate-on-Record—For the respondent Nos. 1-6.
Mosksudur Rahman, Senior Advocate, instructed by A. W. Malek, Advocate-on-Record—For the respondent Nos. 7-9.

Civil Appeal No. 93 of 1985.

Judgment

Shahabuddin Ahmed J.— In this appeal by special leave the question raised is whether the plaintiff-appellant's suit for declaration that Vested Property Case No. 66 of 1978-79 is collusive and void has been dismissed on correct appreciation of law and fact involved therein. The order impugned is the order of a learned Single Judge of the High Court Division dated 8 August 1985 in Civil Revision No. 147 of 1984 (Comilla).

2. The suit, T. S. No. No. 301 of 1979 in the Second Court of Munsif, Chandpur, was filed by the appellant alleging the following facts: The suit land measuring .31 decimals of an acre, recorded in C.S. Khatian No. 51 and comprising Plots Nos. 427 and 429, originally belonged to three brothers, Jugal Chand, Kala Chand and Adhar Chand in equal share. One Radhaballav Pal, proprietor of a business firm, purchased the suit land in auction in Money Suit No. 273 of 1937 of the Second Court of Munsif, Chandpur. Jadhulal Banikya, son of Jugal Chand, purchased the land as benamdar of the plaintiff by a registered kabala dated 12 August 1947 and went into possession. The land was under requisition by the Government from 1949 to 1976; part of the requisitioned land was de-requisitioned in 1971 and its possession was delivered to the plaintiff, and the remaining part, on de-requisition, was also delivered to him in 1976. Plaintiff filed T.S. No. 314 of 1976 in the Second Court of Munsif, Chandpur, against the heirs of Jadhulal for a declaration that Jadhulal was his benamdar in respect of the suit land and obtained a compromise decree and in pursuance of the said decree the plaintiff mutated his name by filing Mutation Case No. 6 of 1970-71. But at the instance of some interested persons who made unsuccessful attempts to establish their claim to the land the Additional Deputy Commissioner and other officers in-charge of Enemy Property (defendants Nos. 1, 2 and 3) started the Vested Property Case in 1979, as stated above, declaring the suit land an enemy and vested property and issued a notice upon the plaintiff asking him to vacate it. In these circumstances, the plaintiff filed the suit for declaration that the Vested Property case was collusive, void and also for a permanent injunction restraining the defendants from disturbing his full possession.

3. Two sets of defendants contested the suit by filing separate written statements. Defendants Nos. 1-3 are Additional Deputy Commissioner, Assistant Custodian, Vested Property, Comilla and Sub-Divisional Officer; in this appeal they are respondent Nos. 7, 8 and 9. Their case is that in the auction-sale m 1937 only 1/3rd share of the suit land was purchased by Radha Ballav which was the share of Jugal Chand, one of three original owners. This 1/3rd share was purchased back by Jugal Chandra's son Jadhulal himself by the registered kabala dated 12 August 1947 with his own money and for his own benefit; he was not a benamdar of the plaintiff who was never the real purchaser but he fraudulently put up this claim to grab the property taking advantage of the absence of the original owners and their heirs who migrated to India before 1965. The suit land being enemy property was rightly treated as such and the Vested Property Case No. 66 of 1978-79 was filed accordingly to take possession of the property. Case of the other set of the Defendants, Nos. 4-9, (who are respondents Nos. 1-6 in this appeal) is practically the same as that of defendants Nos. 1-3 except in respect of 7 decimals of the suit land. This small portion of the suit land defendants, 4-9, claimed to have purchased from the heirs of Kala Chand and Adhar Chand, two of the original owners; excepting this portion they supported the claim of the Vested Property officials that the suit land is an enemy property for the recovery of which, the Vested Property Case has been rightly filed.

4. The trial Court decreed the suit upon a finding that the plaintiff acquired title and also got possession in the suit land on the basis of benami purchase in the name of Jadhulal which was confirmed by the decree in T.S. No. 314 of 1967 which remained unchallenged in any higher forum. The appellate Court, namely the Subordinate Judge, reversed this finding, found that only 1/3rd of the suit land out of .31 decimals representing Judgal Chand's share was purchased by the registered kabala dated 12 August 1947, Ext. 2 corresponding to Ext. B (1) which is its certified copy and that it was not a benami purchase but Jadhulal himself purchased it with his own money and that the plaintiff was not his benamdar but his claim was false. As to the decree in favour of the plaintiff in T. S. No. 314 of 1967, the appellate Court held that it was not binding upon the defendants as they were not parties thereto. Further, the appellate Court found that by mutilating the registered kabala (Ext. 2) by tearing it off in selected places, with a view to establish his false claim to the entire suit land, the plaintiff practiced fraud upon the court. The Vested Property Case was held to have been rightly instituted as owners of the land left for India before 1965. In revision the High Court Division found nothing to interfere with these findings.

5. Mr. T. H. Khan, learned Counsel for the appellant, does not seriously dispute the finding that only 1/3rd of .31 decimals of the suit-land, recorded in C. S. Khatian No. 51, was purchased by the auction-purchaser Radhaballav in 1937 and that this very 1/3rd share was re-purchased in 1947 under the registered kabala, Ext. 2, of which Ext. B (1) is the certified copy. He, however, maintains that this portion was purchased by the appellant in the benami of Jadhulal and that since then the entire suit land has been in possession of the appellant in whose favour the suit land was de-requisitioned by the Government. Learned Counsel has argued that the appellant got his title to the suit land on the basis of benami purchase which was also established by the decree in his favour in T.S. No. 314 of 1967 by which Jadhulal's heirs are bound. He has pointed out that Jadhulal's son, Shaktipada was not only party to that decree but he is still in Bangladesh and is supporting the appellant's case of benami transaction. The learned Counsel contends that the appellant was entitled to a decree at least to the extent of 1/3rd share of the suit land and further that since the appellant has been in possession of the entire suit land, an ejmali property, the attempt to oust him without legal partition is unwarranted.

6. It appears that seven heirs of Jadhulal including Shaktipada were defendants in T.S. No. 314 of 1967 and the suit was decreed on compromise but in the compromise only Shaknipada was a party. He is of course bound by the decree, but he being only one of the seven heirs of Jadhulal, the compromise decree does not cover the whole 1/3rd share, as shown in kabala Ext. 2 Mr. Moksudur Rahman, learned counsel for respondents Nos. 7-9 namely, the Vested Property officials, has submitted that the impugned Vested Property Case is limited to about 20.4 decimals of the suit land representing 2/3rd share of the original .31 decimals of land and that this 2/3rd share became enemy/evacuee property by operation of law when heirs of the original owners migrated to India before 1965. The learned Counsel has submitted that the Vested Property Officials do not intend to disturb the appellant's possession in his share. But it is not ascertained what is the appellant's share nor is it clear whether the 1/3rd of the suit land representing original owner Jugal Chand's share, has been included in the Vested Property Case. Determination of the appellant's lawful share in the suit land is not an issue in this suit. It is a suit for declaration that the Vested Property Case is illegal, collusive and void. Now that the appellant is not found to have title to the entire suit land the greater part of which is in fact an enemy and vested property the appellant-plaintiff is not entitled to a decree he prayed for. He may seek remedy by way of partition in an appropriate forum. Decision of the High Court Division affirming that of the Appellate Court is perfectly correct.
In the result, the appeal is dismissed without however any order as to costs.
Ed.

Nuvista Pharma Ltd. Vs. Chairman, National Board of Revenue and others, 2 LNJ AD (2013) 159

Case No: Civil Petition For Leave To Appeal No. 2592 Of 2010

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Ajmalul Hossain QC,Mr. Murad Reza,,

Citation: 2 LNJ AD (2013) 159

Case Year: 2013

Appellant: Nuvista Pharma Ltd.

Respondent: Chairman, National Board of Revenue and others

Subject: Company Matter,

Delivery Date: 2011-01-04

APPELLATE DIVISION
(CIVIL)

A.B.M. Khairul Haque, CJ.
Md. Muzammel Hossain, J.
S.K. Sinha, J.

Judgment
04.01.2011

Nuvista Pharma Limited

. . . Petitioner

-Versus-

The Chairman, National Board of Revenue and others

. . . Respondents.

Value Added Tax Act (XXII of 1991)
Section 59
Value Added Tax Rules, 1991
Rule 12
In order to change the name and ownership of the company, according to Section 59 of the VAT Act, 1991 and Rule 12 of the VAT Rules,1991 prior payment of outstanding dues of the VAT Authority is a condition precedent before changing the name and ownership of the company. In compliance with the provisions of the VAT Act, 1991 and Rules framed thereunder the petitioner company furnished Bank Guarantee dated 07.05.2007 for Tk. 2,75,42,815.02 in favour of the respondent No.1 as security of the outstanding dues of the respondent author-ity wherein it has been stated that "our liability under this guarantee is limited to Tk.2,75,42,815.02 (taka two crore seventy five lac forty two thousand eight hundred and fifteen and two paisa only). The petitioner company also gave a separate undertaking dated 07.05.2007 wherein all the directors of the company individually and jointly gave an unconditional undertaking that “Nuvista Pharma Ltd. will be liable to meet any claim from the VAT Authorities that may arise in future in the name of Organon (Bangladesh) Limited".

It appears that the predecessor of the petitioner company did not raise any objection against the outstanding arrear VAT liability demanded by the respondent authority. In the circumstances of the case after submission of the Bank Guarantee dated 07.05.2007 for Tk.2,75,42,815.02 supported by an unconditional undertaking by all the directors of the petitioner company against the outstanding VAT liability of Tk.2,75,42,815.02 the claim for release of the Bank Guarantee is not tenable in law. …(13 and 14)

Uttara Bank Vs. Macncill & Kilburn, 33 DLR (AD) 298 ref.

For the Petitioner : Mr. Ajmalul Hossain, Q.C. Senior Advocate, instructed by Mr. Md. Wahidullah, Advocate-on-Record.

For the Respondents : Mr. Morad Reza, Additional Attorney General, instructed by Mr. B. Hossain, Advocate-On-Record.

Civil Petition For Leave To Appeal No. 2592 Of 2010

JUDGMENT

Md. Muzammel Hossain, J:

This petition for leave to appeal under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 27.10.2010 passed by a Division Bench of the High Court Division in Writ Petition No. 4968 of 2007 discharging the Rule with a direction to the petitioner to make full payment of the claimed amount within two weeks from the date of receipt of the judgment and order failing which the Bank Guarantee No.101TS124LG07 dated 07.05.2007 will be encashed.

The present petitioner filed Writ Petition No.4968 of 2007 challenging the direct formal demands made by the respondents alleging violation of Section 55 of Value Added Tax Act,1991 (Annexures-B-1, C-1, C-2, C-3 and C-4 to the writ petition and Annexures-I, J and K to the Supplementary Affidavit) and subsequent demand by their letter dated 23^rd April,2007 (Annexure-E-1) of an open ended unconditional and continuous Bank Guarantee and a letter of Undertaking from the petitioner as security against their direct formal demand of Tk.2,75,42,815.02 (Taka Two Crore Seventy Five Lac Forty Two Thousand Eight Hundred and Fifteen and Two Paisa only) for approving the change of name of the petitioner company and seeking direction to release of the Bank Guarantee No.101TS124LG07 dated 7^th May,2007 for Tk.2,75,42,815.02 (Taka Two Crore Seventy Five Lac Forty Two Thousand Eight Hundred and Fifteen and Two Paisa only) issued in favour of the respondent No.1 as security for CRAD Audit Objections raised against the petitioner (Annexure-F-1)

The facts of the case in brief are that Organon (Bangladesh) Limited, a pharmac-eutical company was registered for VAT. The majority shareholder of Organon Bangladesh Limited decided to discontinue the business in Bangladesh. As a result the shareholding and controlling interest in the petitioner company was changed. On 29^th November, 2006 the new management of the petitioner company chan-ged the name of the petitioner from Organ (Bangladesh) Limited to Nuvista Pharma Limited. The petitioner applied to different authorities namely, the Registrar of Joint Stock Companies & Firms (RJSC), Board of Investments (BOI), Dhaka City Corporation (DCC), National Board of Revenue (NBR), Drugs Administration and Licensing Authority (Drugs), Customs, Excise and VAT Authority etc. to change the petitioner's name in their respective certificate and permissions. The petitioner applied to the VAT authorities under Rule 12 of the VAT Rules to record the change of the share transfer and the change of its name from Organon to Nuvista. The VAT authorities raised an issue regarding alleged outstanding VAT of Organon for the years 2001-2006 on the basis of CRAD audit objections to return of Tk.2,75,42,815.02. The amount was demanded by direct demands without issuing any show cause notice under Section 55 of the VAT Act. The demand was rejected by Nuvista for each year.

It is stated that the petitioner required VAT Registration Certificate to carry on its business as it had imported raw materials for manufacturing which has already arrived at the airport and that were awaiting for clearance. The petitioner had already got the import registration certificate and bank account changed to the new name of the company and all documents were done in the name of Nuvista Pharma Limited. But the clearance of VAT authorities remained unresolved and in the compelling circumstances as per direction of VAT authorities the petitioner Nuvista Pharma Limited provided unconditional Bank Guarantee and undertaking from the directors of Nuvista under Section 59 of the VAT Act. Thereafter the change of name and ownership was approved and permitted by the VAT authorities on those terms. The petitioner Nuvista filed the instant writ petition challenging the alleged direct demands as stated above and sought release of the Bank Guarantee and undertaking stating that no liability for VAT had arisen. The process for recovering VAT under declared or paid has not been followed and the guarantee will severely hamper the profitability, liquidity and operating capability of the company which amounted to duress. The respondents cannot claim VAT for more than last three years as per provision of Section 55 of the Value Added Tax Act, 1991 and they are illegally claiming the additional VAT in violation of Section 55 of the aforesaid Act. The claim of additional VAT against the petitioner is illegal, unlawful and arbitrary and the respondent's claim for payment of additional VAT cannot sustain in law.

It is further stated that there were SlX consignments that were awaiting clearance at the International Airport against letters of credit opened in the name of Nuvista Pharma Limited and these consignments could not be cleared by the customs authorities because the VAT Registration number was in the name of former company Organon (Bangladesh) Limited and in the compelling circumstances the petitioners had to provide Bank Guarantee and the letter of undertaking on 07.05.2007 in order to get approval of change of name of the company from Organon (Bangladesh) Limited to Nuvista Pharma Limited.

A Division Bench of the High Court Division by the impugned judgment and order dated 27.10.2010 discharged the Rule. Being aggrieved by the impugned judgment and order passed by the High Court Division the petitioner preferred the instant Civil Petition for Leave to Appeal before this Court.

Mr. Ajmalul Hossain QC, the learned Senior Advocate appearing for the petitioner submits that the High Court Division erred in law in passing the impugned judgment and order discharging the Rule as it failed to consider that the petitioner's legal arguments that the respondents under the law are not allowed to make their claim inasmuch as pursuant to section 55 of the Value Added Tax Act,1991 the respondents cannot claim VAT for more than last three years and as such they are claiming additional VAT in violation of the provision of Section 55 of the aforesaid Act. He then submits that the VAT is chargeable only on taxable supplies as per sections 2, 3 and 6 of the VAT Act and that there must be identified goods supplied for consideration and VAT is not charged on the quantities of raw materials and as such there cannot be any basis for the liability for VAT arising in the first place. Mr. Hossain then submits that the respondent's act of retaining the Bank Guarantee and personal undertaking where there is no valid and specific claim for additional VAT against the petitioner is unlawful and arbitrary and as such respondents' claim for payment of additional VAT cannot sustain in law. He finally submits that CRAD is not the appropriate VAT authority to re-determine VAT under-declared or under-paid and therefore, direct demands without following the process under Section 55 of the VAT Act are bad in law and the impugned judgment and order passed by the High Court Division is liable to be set aside.

In the instant case the petitioner Nuvista Pharma Limited after buyout of the manag-ement of the predecessor of the petitioner company Organon (Bangladesh) Ltd. in the year 2007 after complying with the provision of Section 59 of the VAT Act,1991 and Rule 12 of the VAT Rules,1991 changed the name of the company from Organon (Bangladesh) Limited to Nuvista Pharma Limited by furnishing unconditional Bank Guarantee and undertaking. It has been judicially noticed by the High Court Division that the petitioner company admitted the demand made by the respondent and furnished unconditional Bank Guarantee as per provision of Section 59 of the VAT Act and Rule 12 of VAT Rule for changing the name and ownership of the company and got the same properly approved with the respondent authorities and various other authorities. It appears from the record that the predecessors of the petitioner company Organon (Bangladesh) Limited did not take any action against the demand notice dated 23.04.2007 (Annexure-E1) on the ground of non-compliance of procedure of the VAT Act before making the demand. The pertinent question before us for consideration is whether after change of the name of the petitioner company from Organ (Bangladesh) Limited to Nuvista Pharma Limited having complied with the provisions of the VAT Act and Rules framed thereunder by furnishing Bank Guarantee and undertaking the petitioner can maintain a writ petition challenging the aforesaid demand made by the respondent seeking the unconditional Bank Guarantee to be declared unconstitutional on the ground of non-compliance of various provisions of VAT Act and Rules. In the instant case admittedly the demand was made against the petitioner by the respondent. From the materials on record it appears that the respondent authority by Annexures-C series demanded various outstan-ding arrear VAT. Separate demand notices were issued at different times as per provisions of law but the petitioner knowing fully about the said arrear VAT liability intentionally refrained from making the payment of arrear VAT Liability which was detected by the Local Revenue Audit for the year 2001-2006 and that audit was conducted each year and there was separate demand notice for each year on time but the petitioner did not take any step for payment of the said arrears VAT liability or did not prefer any appeal. It appears that audit has been conducted by the auditors of the Local and Revenue Audit Directorate of the Government based on records such as price declaration, monthly returns and Mushak Challan, copy of Cash Book Register etc. filed by the assesses to the office of the Divisional Officer of Customs, Excise & VAT and also to the office of the Circle Superintendent, Customs, Excise & VAT. The respondent authority issued demand notices for payment of arrear VAT / evaded VAT on time after each year audit by the local revenue audit in accordance with law.

The VAT Act, 1991 is a special law enacted for realization of VAT on "cY¨" and "‡mev" which has been very clearly stated in it’s preamble. As per provisions of the aforesaid Act a special procedure for imposition and realization of VAT is required to be followed. Section 15 of the VAT Act provides for registration of VAT. According to Section 2(b) any person includes business organization, incorporated body and any association. Section 18 of the VAT Act, 1991 provides that if any person wants to change the name, address and any other information mentioned in the application for registration for VAT he may apply to the concerned authority at least 14 days before the date of change. Section 59 of the Act contains mandatory provisions for change of ownership of the business organization and the company which reads as under:

"৫৯। মালিকানা হস্তান্তর।-কোন নিবন্ধিত ব্যক্তি তাহার ব্যবসায় প্রতিষ্ঠানের আওতাধীন কোনো স্থাবর সম্পত্তি বা মালিকানা উক্ত ব্যবসায় পরিচালনায় এই আইনের অধীন প্রদেয় সকল মূল্য সংযোজন কর বা, ক্ষেত্রমত, মূল্য সংযোজন কর ও সম্পূরক শুল্ক, সম্পূর্ণরূপে পরিশোধ না করা পর্যন্ত, হস্তান্তর করিতে পারিবেন না।

তবে শর্ত থাকে যে, উক্ত প্রতিষ্ঠানের স্থাবর বা অস্থাবর সম্পত্তি বা মালিকানা ক্রয়কারী ব্যক্তি প্রদেয় মূল্য সংযোজন কর বা ক্ষেত্রমত, মূল্য সংযোজন কর ও সম্পূরক শুল্ক পরিশোধ করার বিষয়ে কোনো তফসিলী ব্যাংকের নিঃশর্ত ব্যাংক গ্যারান্টি দাখিল করিলে যথোপযুক্ত বিবেচনায় সংশ্লিষ্ট কমিশনার তৎকর্তৃক নির্ধারিত শর্তে উহা হস্তান্তরের অনুমতি প্রদান করিতে পারিবেন।"

Rule 12(1) provides that for change of the place of business or for change of any situation of the business organization a registered person has to pay VAT or turnover tax or any supplementary duty minimum 14 days before such change and then submit a declaration in the prescribed form "VAT-9" to the Local VAT Office. It is pertinent to reproduce Rule 12(1) of VAT Act,1991 which runs as under:

"১২। ব্যবসায়ের স্থান বা পরিস্থিতির পরিবর্তন।- (১) কোনো নিবন্ধিত ব্যক্তির ব্যবসায়ের স্থান বা পরিস্থিতির পরিবর্তন হইলে তাহাকে উক্ত পরিবর্তনের অন্যূন চৌদ্দ দিন পূর্বে মূল্য সংযোজন কর বা ক্ষেত্রমত, সম্পূরক শুল্ক বা টার্ণওভার কর সম্পূর্ণ পরিশোধ সাপেক্ষে স্থানীয় মূল্য সংযোজন কর কার্যালয়ে বা প্রযোজ্যক্ষেত্রে, কার্যালয় সমূহে ফরম ’মূসক-৯’ এ একটি ঘোষনাপত্র দাখিল করিতে হইবে|"

The case of the petitioner is that there was a change in its shareholding and controlling interest. The new management of the petitioner company changed the name of the company from Organon (Bangladesh) Limited to Nuvista Pharma Limited. The petitioner company was previously running their business with VAT Registration in the name of Organon (Bangladesh) Limited and accordingly they obtained the VAT Registr-ation Certificate in the name of Organon (Bangladesh) Limited to carry on its business for importing raw materials for manufacturing. For this purpose the company had imported raw materials for manufacturing which has already arrived at the Shahajalal International Airport. Because of the change of name of the petitioner company it could not take delivery of it's goods from the airport, since the claim of the VAT Authority against the Nuvista Pharma Limited remain unresolved. Having faced with such a situation the petitioner company was required to obtain VAT Registration in the name of Nuvista Pharma Limited because of the change of name of the company. In compliance with the provisions of Sections 18 and 59 of the VAT Act, 1991 read with Rule 12(1) of the VAT Rules, 1991 the petitioner company was required to pay the outstanding arrear of VAT liability of Tk.2,75,42,815.02 based on CRAD Audit Objection for the years 2001-2006. The petitioner company in order to get registration of their change of ownership and other particulars of the company applied to the respondent authority. Having complied with the provisions of Sections 18 and 59 of the VAT Act,1991 read with Rule 12(1) of the VAT Rules, 1991 the petitioner company furnished unconditional Bank Guarantee. It appears from the record that the respondent No.2 Commissioner, Customs Excise and VAT, Dhaka by memo dated 23.04.2007 (Annexure-E-1) informed the Additional Commissioner, Customs approving the change of the name of the petitioner company from Organon (Bangladesh) Limited to Nuvista Pharma Limited subject to submission of an unconditional and continuing Bank Guarantee for Tk.2,75,42,815.02 under Section 59 of the VAT Act,1991.

It has also been mentioned that if in the future any demand is made in respect of any outstanding VAT liability of the predecessor of the present petitioner company, it shall have to pay the same as per provisions of Section 59 of the said Act. From the scheme of the Act it is to be observed that payment of outstanding VAT, or any other dues of the respondent Government for change of name and ownership of the company it is mandatorily required that the company shall pay the said dues before making any application for change of name and ownership of the company. From the scheme of the Act it is also obvious that payment of outstanding dues is required to be paid before changing the place and situation of the registered person or business concern and without prior payment of outstanding dues there shall not be any change of VAT Registration in respect of the name and ownership of the company.

In order to change the name and ownership of the company, according to Section 59 of the VAT Act,1991 and Rule 12 of the VAT Rules,1991 prior payment of outstanding dues of the VAT Authority is a condition precedent before changing the name and ownership of the company. In compliance with the provisions of the VAT Act,1991 and Rules framed thereunder the petitioner company furnished Bank Guarantee being No.101TS1241LG07 dated 07.05.2007 for Tk.2,75,42,815.02 in favour of the respondent No.1 as security of the outstanding dues of the respondent authority wherein it has been stated that "our liability under this guarantee is limited to Tk.2,75,42,815.02 (taka two crore seventy five lac forty two thousand eight hundred and fifteen and two paisa only) (Annexure-F)”. The petitioner company also gave a separate undertaking dated 07.05.2007 (Annexure-F-2) wherein all the directors of the company individually and jointly gave an unconditional undertaking that “Nuvista Pharma Ltd. will be liable to meet any claim from the VAT Authorities that may arise in future in the name of Organon (Bangladesh) Limited".

It appears that the predecessor of the petitioner company did not raise any objection against the outstanding arrear VAT liability demanded by the respondent authority as contained in Annexure-E1 on the ground of non-compliance of procedure of the VAT Act before making the demand. In the circumstances of the case after submission of the Bank Guarantee No. 101TS1241LG07 dated 07.05.2007 for Tk.2,75,42,815.02 supported by an unconditional undertaking by all the directors of the petitioner company against the outstanding VAT liability of Tk.2,75,42,815.02 the claim for release of the Bank Guarantee is not tenable in law. However, the petitioner company can claim refund of any mistaken payment or excessive payment in respect of VAT turnover tax or any other dues if any to the respondent authority as envisaged in Section 67 of the VAT Act.

At the time of issuance of Rule an ad-interim order was passed stating that injunction on the Bank Guarantee can not sustain in view of the decision of the case of Uttara Bank -Vs- Macneill & Kilburn reported in 33 DLR(AD) 298 wherein it has been held that there cannot be any injunction whatsoever upon any Bank Guarantee. The Appellate Division observed-

"The decisions show that court will not interfere by granting an injunction from performing or discharging the contractual obligations. Such is the case here. The letter of guarantee was given in this case by the plaintiff and the defendant placed it for the encashment of the letter of guarantee. The bank (chartered bank) is only obliged to comply with the demand made by the Appellant Uttara Bank. It is nobody's case that there is any fraud of which the bank got notice."

We have heard the learned Advocate appearing for the petitioner, perused the leave petition, impugned judgment and order passed by the High Court Division and all other connected papers on record. We are in respectful agreement with the decision of the Appellate Division reported in 33 DLR (AD) 298. In view of the above mentioned findings and observations, we do not find any illegality in the impugned judgment and order. In the premises we do not find any merit in the leave petition.

In the result, the leave petition is dismissed.

Ed.

Obaidur Rahman Vs. Tahmina Ahmed, (Soumendra Sarkder, J.)

Case No: Civil Revision No. 1055 of 2016

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Sk. Rashedul Hoque, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Obaidur Rahman

Respondent: Tahmina Ahmed alias Mst. Tahmina Begum

Subject: Family Laws Ordinance

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

Judgment on

08.11.2017

}

Obaidur Rahman

. . . Defendant-Appellant- Petitioner

-Versus-

Tahmina Ahmed alias Mst. Tahmina Begum

. . . Plaintiff-Respondent-Opposite Party.

Family Laws Ordinance (VIII of 1961)

Section 7(1) and 7(4)

Code of Civil Procedure (V of 1908)

Order XLI, Rule 27

With regard to giving “talaq” as alleged from the side of the defendant-petitioner, some legal formalities are pre-conditions of a valid Talaq, but I have come across from the connected papers that it is not the pleading’s case of the defendant that under the ambit of Muslim Family Laws Ordinance, 1961 he gave “talaq” to his wife after completion of the formalities laid down in section 7(1) and (4) of the relevant law. Furthermore; it is not the case of the defendant in his written statement that he ever gave any notice of “talaq” to his wife or the concerned Union Parishad Chariman. Therefore, obviously under the ambit of Order XLI rule 27 of the Code of Civil Procedure for additional evidence, there is no scope to entertain the application submitted from the side of the defendant-petitioner which is apparently beyond the pleading of the defendant-petitioner. Moreso; at this stage, to fill-up the lacuna; the defendant-petitioner is not entitled to amend his pleading under Order VI, rule 17 of the Code of Civil Procedure as verbally prayed for by the learned Advocate of the Petitioner. Having regard to the facts, circumstances and the decisions the learned court of appeal below during passing the impugned judgment and decree committed no such illegality or infirmity or misreading and non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with. . . . (15 and 17)

Mr. Sk. Rashedul Hoque, Advocate

. . . For the petitioner

Mr. Shashti Sarker, Advocate

. . . For the Opposite Party.

JUDGMENT

Soumendra Sarker, J: The Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 24.02.2016 passed by the learned Additional District Judge, Rajbari in Family Appeal No.06 of 2015 allowing the appeal-in-part by reducing the dower money from Tk.3,00,000/- (Three lac) to Tk.1,49,500/- (One lac forty nine thousand and five hundred) and thereby modified the judgment and decree dated 06.04.2015 passed by the learned Judge, Family Court, Pangsha, Rajbari in decreeing the Family Suit No.43 of 2013 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present opposite party as plaintiff instituted the original Family Suit being No. 43 of 2013 in the Court of learned Judge, Family Court, Pangsha, Rajbari against the present petitioner for getting a decree on dower money and maintenance contending inter alia that on 25.11.2010 the plaintiff got married to the defendant according to Muslim Shariah Law. In the office of the Notary Public, Dhaka in presence of one Mawlana the dower money was fixed at Tk. 3,00,000/- (Three lac). Subsequently, after the execution of ‘holofnama’ (affidavit) with regard to the marriage, according to the terms and conditions of that ‘holofnama’ on 10.12.2010 the marriage ceremony was held in the residence of the plaintiff’s father through one Md. Yousuf Kari. The ‘kabinnama’ was executed and registered on that date. Thereafter, the plaintiff and the defendant lived together as husband and wife in the residence of the defendant. The marriage was duly consumed, and at a stage of that; the defendant became addicted and he started to give pressure to the plaintiff for obtaining money as dowry from her father. The plaintiff while denied to bring money as dowry from her father, the defendant started torture to her and on 14.04.2013 the defendant driven her out from his residence and as a result of that; the plaintiff finding no other alternative returned back to the residence of her parents in one cloth. The further case of the plaintiff is such that the defendant was requested repeatedly to resolve the matter, but without resolving the matter of demanding dowry, the defendant again demanded Tk. 2,00,000/- (Two lac) dowry from the father of the plaintiff. The parents of the plaintiff was not in a position to give the dowry amount and since then the plaintiff is residing in the residence of her parents.

3. The contrary case of the defendant-petitioner in short is thus, that a relationship was developed between the plaintiff and the defendant through mobile phone initially and at a stage of that; the plaintiff asked the defendant to come at Savar of district Dhaka. Accordingly, the defendant on 25.11.2010 went to Savar, where the plaintiff and her other relatives with the help of some terrorists confined the defendant in a room and managed to obtain his signatures in a volume book and other papers. The further case of the defendant is such that the plaintiff and her men created a ‘kabinnama’ of marriage between he and the plaintiff, in where; the dower money was fixed at Tk.1,50,000/- (One lac and fifty thousand), out of which Tk.1,000/- (one thousand) was paid instantly. Subsequently, the defendant coming to his own residence from the residence of the plaintiff, informed the matter to his parents and other relatives and a “Shalish-boithak” was held. In that “Shalish-boithak” it was decided that the plaintiff will take the rest dower money including maintenance at a time. Accordingly, the plaintiff in that “Shalish-boithak” accepted Tk.1,50,000/- (One lac fifty thousand), which was given by the defendant to her. Thereafter, the defendant on 02.02.2013 going to the office of the marriage register gave “Talaq” to the plaintiff and an affidavit was executed to that effect in the office of the Notary Public on 03.02.2013. The defendant denied the marriage-tie with the plaintiff and prayed for dismissal of the original suit.

4. The learned trial court at trial of the original suit on 06.04.2015 passed the ex-parte judgment and decree against the defendant.

5. Being aggrieved the defendant preferred an appeal being Family Appeal No.06 of 2015 in the court of learned District Judge, Rajbari, which was transmitted to the Court of learned Additional District Judge, Rajbari for hearing and disposal and the learned appellate court hearing the appeal by his judgment and decree dated 24.02.2016 disallowed the appeal in part and affirmed the judgment and decree passed by the learned trial court in modified form.

6. Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant-petitioner have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

7. During hearing of this Rule Mr. Sk. Rashedul Hoque, the learned Advocate appeared on behalf of the petitioner while Mr. Shasti Sarkar the learned Advocate appeared on behalf of the opposite party.

8. The learned Advocate appearing on behalf of the petitioner submits that in fact; there was no lawful marriage between the plaintiff and the defendant and the plaintiff taking advantage of good relationship between she and the defendant, with the help of her relatives and some terrorists managed to create a “kabinnama” forcibly confining the defendant in a room and taking his signatures by threatening. The learned Advocate further submits that, the trial court as well as the appellate court committed illegality in holding the view that in fact the marriage ceremony was solemnized between the parties and there was unpaid dower money of that marriage. The learned Advocate also submits that the defendant after the so-called marriage divorced the plaintiff in proper way and swear an affidavit in the office of the Notary Public. The learned Advocate for the petitioner during his submissions after filing an application under Order XLI, rule 27 along with section 151 of the Code of Civil Procedure supported by two acknowledgement receipts and copy of notice under section 7(1) of Muslim Family Laws Ordinance, 1961 prays for giving the defendant-petitioner an opportunity to prove his case after accepting the papers submitted by him as additional evidence.

9. As against the aforesaid submissions and application, the learned Advocate appearing on behalf of the opposite party opposing the Rule and application, vehemently controverted the submissions advanced from the side of the petitioner and submits that the papers filed at present are all collusive, fraudulent and created and that, there was no threat or coercion from the side of the plaintiff-opposite party for the marriage ceremony between the plaintiff and the defendant. The learned Advocate further submits that the defendant-petitioner voluntarily with his free and full consent married the plaintiff-opposite party and the “kabinnama” was executed and registered fairly and legally, in which; the dower money was fixed at Tk. 3,00,000/- (Three lac). The learned Advocate also submits that during disposal of the original suit and it’s subsequent appeal the learned trial court as well as the appellate court committed no illegality or irregularity, rather; on the basis of sufficient credible evidence the judgment and order was passed. The learned Advocate argued that at this stage; there is no scope for additional evidence or acceptance of the papers filed from the side of the defendant-petitioner under Order XLI, Rule 27 read with section 151 of the Code of Civil Procedure, since all these papers are recent in origin and are forged, fabricated and manipulated. The learned Advocate further submits that, neither in the trial court nor in the appellate court, these papers were filed or exhibited after proof from the side of the defendant-petitioner and subsequently out of ill-motive to deprive the plaintiff-opposite party from getting her lawful demand which is her legal right, all these papers has been created. The learned Advocate lastly after referring some decisions of this Court and our Apex Court submits that the learned appellate court below rightly in his judgment and findings conclusively held that no notice under section 7(1) of the Muslim Family Laws Ordinance, 1961 was given or issued by the defendant in support of the alleged ‘Talaq’. The acknowledgement due notice and the papers showing ‘Talaqnama’ are all spurious papers. In the written statement also it is not the pleading’s case of the defendant that notice under section 7(1) of the Muslim Family Law Ordinance, 1961 was given or issued by him. Apart from this; in the pleading of the defendant or in his written statement, the story of “Shalish-boithak” is totally absent. Hence; in no way the defendant-petitioner is in a position to take any advantage of additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure or any relief as prayed for.

10. Considering the submissions of the learned Advocates I have perused the impugned judgment and decree passed by the learned appellate court below and the judgment and decree passed by the trial court along with the plaint and the written statement of the original family suit being No.43 of 2013 including all other relevant papers and evidences lead from the sides of the respective parties.

11. Having gone through the case records and the evidences it transpires that the plaintiff to the suit in order to get a decree of dower money and maintenance instituted the original suit under the ambit of Muslim Family Laws Ordinance, 1961. It has been contended within the pleading of the plaintiff that the marriage was held between the plaintiff and the defendant initially on 25.11.2010 and subsequent to that, with the consent of the guardians of the both bride and bride-groom on 10.12.2010 in the residence of the bride, plaintiff-opposite party at a village namely “Para-Belgachi”, under Kalukhali Upazaila of District-Rajbari; the concerned ‘Kazi’ of Kalikapur Union Parishad gave the marriage as per law and the ‘kabinnama’ was executed on the same date 10.12.2010. It is the further contention of the plaintiff-opposite party in her plaint that during the subsistence of their conjugal life, the defendant became drug addicted and at a stage of that; he demanded dowry from the father of the plaintiff amounting to Tk. 2,00,000/- (Two lac) and while the plaintiff denied to pay the amount after bringing the same from her parents, the defendant has driven her out of his residence with one cloth on 14.04.2013 and since then; the plaintiff-opposite party is residing in the residence of her parents.

12. Vis-à-vis; it is the pleading’s case of the defendant-petitioner that the marriage ceremony was not held under his free consent and desire. It was further case of the defendant that between he and the plaintiff a good relationship was devolved through a cell phone and taking advantage of that, the plaintiff requested him to come at Savar on 25.11.2010. On that date when the defendant went to Savar, the plaintiff in collusion with her relatives and some miscreants forcibly confined the defendant in a room and managed to take his signatures in a volume book by which the ‘kabinnama’ was created and in that ‘kabinnama’ the dower money was fixed at Tk.1,50,000/-. It was further case of the defendant in his pleading that subsequently; on 02.02.2013 going to the office of the Marriage Register he gave “Talaq” to the plaintiff and on the following date i.e. on 03.02.2013 the defendant going to the office of the ‘Notary Public’ terminated the relationship of husband and wife by swearing an affidavit. In the pleading it was contended by the defendant-petitioner that there was a family ‘shalish-boithak’ between the two families and it was decided in that ‘boithak’ that the defendant will pay Tk.1,50,000/- to the plaintiff and according to that decision, the defendant paid the entire money to the plaintiff.

13. Having gone through the evidence on case records I find that in the original suit the defendant after taking several adjournments for pre-emptory hearing; finally, on the date fixed for further pre-emptory hearing again filed an application for time and the learned trial court after imposing a cost amount of Tk. 3,000/- (Three thousand) fixed a date for further pre-emptory hearing. On the date fixed; without payment of the cost amount the defendant-petitioner again filed an application for time and the learned trial court rightly after rejecting his prayer has taken the case for exparte disposal. On that date the plaintiff Tahmina Ahmed deposed in support of her plaint case. She has proved the ‘kabinnama’ which has been marked as Exhibit-1 and the defendant remaining absent did not cross-examine the plaintiff. Subsequently; during appeal hearing the defendant Md. Osman Haider deposed before the appellate court as D.W.1. In his testimony the defendant testified at a stage that in a family ‘Shalish Boithak’ in presence of his relatives it was decided that he(defendant) will pay a sum of Tk.1,50,000/- to the plaintiff and according to that decision the plaintiff accepted the amount from the defendant.

14. During cross-examination in a reply to a question, D.W.1 testified at a stage that, it is not known to him that in the ‘kabinnama’ of their marriage the dower money was Tk.3.00 lac. In the deposition the defendant-petitioner admits that there was no “Shalishnama” in the “Shalish Boithak” and he cannot recollect the date of “Shalish Boithak” and he also cannot state the names of the presentees of that “Shalishnama” excepting the names of the father and uncle of the plaintiff. The defendant testified in his testimony that, on the following day of 02.02.2013 he gave “Talaq” to the plaintiff. In this context; the provisions laid down in section 7 of the Muslim Family Laws Ordinance, 1961 is required to be looked into, which reads as follows:-

“7(1). Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsovever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”

………………

“7(4). Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.”

15. Hence, I find that with regard to giving “talaq” as alleged from the side of the defendant-petitioner, the above mentioned legal formalities are pre-conditions of a valid Talaq, but I have come across from the connected papers that it is not the pleading’s case of the defendant that under the ambit of Muslim Family Laws Ordinance, 1961 he gave “talaq” to his wife after completion of the formalities laid down in section 7(1) and (4) of the relevant law. Furthermore; it is not the case of the defendant in his written statement that he ever gave any notice of “talaq” to his wife or the concerned Union Parishad Chariman. Therefore, obviously under the ambit of Order XLI rule 27 of the Code of Civil Procedure there is no scope to entertain the application submitted from the side of the defendant-petitioner which is apparently beyond the pleading of the defendant-petitioner. Moreso; at this stage, to fill-up the lacuna; which has already been accrued in favour of the plaintiff, the defendant-petitioner is not entitled to amend his pleading under Order VI, rule 17 of the Code of Civil Procedure as verbally prayed for by the learned Advocate of the Petitioner.

16. In the context of “talaq” as provided in the relevant law of Muslim Family Laws Ordinance, 1961, this court in the case of Dilruba Aktar –vs.- AHM Mohsin 55 DLR 568 held that, ‘Talaq in any form shall not stand effective and talaq shall not be talaq in the eye of law unless provision contained in section 7(1) is sternly complied with’. Besides this; in the case of Kazi Rashed Akhter Shahid –vs.- Rokshana Choudhury (Sanda) 58 DLR 271, it is observed by this Court that section 7(1) of Muslim Family Laws Ordinance (VII of 1961) requires the husband to give a notice in writing of his having pronounced talaq. If the husband abstains from issuing such notice to the Chairman, it would be deemed that the husband has revoked the talaq and the material status of the parties has not been changed.

17. Having regard to the facts, circumstances and the decisions referred to above, I am constrained to hold such a view that the learned court of appeal below during passing the impugned judgment and decree committed no such illegality or infirmity or misreading and non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with.

18. In the result, the Rule is discharged. The impugned judgment and decree dated 24.02.2016 passed by the learned Additional District Judge, Rajbari in Family Appeal No.06 of 2015 allowing the appeal-in-part by reducing the dower money from Tk.3,00,000/- (Three lac) to Tk.1,49,500/- (One lac forty nine thousand and five hundred) and thereby modifying the judgment and decree dated 06.04.2015 passed by the learned Judge, Family Court, Pangsha, Rajbari in decreeing the Family Suit No.43 of 2013 is hereby affirmed.

19. Let the order of stay granted earlier by this Court at the time of issuance of the Rule stands vacated.

20. However; there will be no order as to costs.

21. Let a copy of the judgment along with the Lower Court’s Record be sent down at once.

End of volume.

Civil Revision No. 1055 of 2016

Omar Faruk Montu Vs. The State [4 LNJ (2015) 203]

Judge: Md. Abu Zafor Siddique,

Court: High Court Division,,

Advocate: Mr. Mohammad Ali Khan,Mr. Fazlur Rahman Khan,Mr. Yusuf Mahmud Morshed,Mr. Kazi Ebadat Hossain,,

Citation: 4 LNJ (2015) 203

Case Year: 2015

Appellant: Omar Faruk Montu

Respondent: The State

Subject: Expert Opinion,

Delivery Date: 20104-06-18

হাইকোর্ট বিভাগ
(ফৌজদারী অ্যাপিলেট অধিক্ষেত্র)

বিচারপতি জুবায়ের রহমান চৌধুরী
এবং
বিচারপতি মোঃ আবু জাফর সিদ্দিক্কী

রায় ঘোষনার তারিখঃ
18/06/2014

}
}
}
}
}
}

ওমর ফারুক মন্টু
---আপীলকারী।
বনাম
রাষ্ট্র
---প্রতীবাদী

Penal Code (XVI of 1860)
Section 34
একই অভিপ্রায় পুরনকল্পে একাধিক ব্যক্তি যখন কোন একটা অপরাধমূলক কার্য করেন, তখন তাহাদের প্রত্যেক ব্যক্তি সেই অপরাধের জন্য দায়ী হন, ইহাই দন্ড বিধির ৩৪ ধারা প্রতিপাদ্য বিষয় ...(37)

Code of Criminal Procedure (V of 1898)
Section 342
আপীলকারীর বিরুদ্ধে সাক্ষীগন আদালতে কি বক্তব্য রাখিয়াছেন, যাহাতে অভিযুক্ত ব্যক্তির দন্ডিত হওয়ার যথেষ্ট সম্ভাবনা আছে, তাহা সুনিদৃষ্টভাবে তাহাকে অবগত করা হয় নাই, বিজ্ঞ বিচারক কেবলমাত্র পরীক্ষিত সাক্ষীর সংখ্যা উল্লেখ করিয়াছে মাত্রz ইহাতে দন্ডিত আপীলকারী ন্যায় বিচার হইতে বঞ্চিত হইয়াছেz এই প্রসঙ্গে সুপ্রতিষ্ঠিত নীতি হইল; “No one should be condemned unheard. And it is utmost duty of the Court to give an opportunity to an accused to defence himself.” ...(55)

Evidence Act (I of 1872)
Section 45
বোমা বিষ্ফোরন সংঘটিত হইলে বা কেহ আহত বা নিহত হইলে মামলাটি সংশ্লিষ্ট আইনে প্রমানের জন্য জব্দকৃত আলামত অবশ্যই রাসায়নিক পরীক্ষা (Chemical test) করিয়া বিশেষজ্ঞের মতামত (Expert opinion) সংগ্রহ করা তদ¿¹কারী কর্মকর্তার (Investigating Officer) দাীয়ত্ব ছিল, বিষ্ফোরক âব্যের (Explosive substance) মামলা প্রমানের জন্য ইহা আইনানুগভাবে অবশ্য পালনীয় কার্য (Mandatory Provisions of Law). ...(74)

Evidence Act (I of 1872)
Sections 3 and 45
বিষ্ফোরক দ্রব্য (Explosive Substacne) রাসায়নিক পরীক্ষা (Chemical test) করিয়া বিশেষজ্ঞ মতামত (Expert opinion) গ্রহন না করিয়া বোমা বিষ্ফোরনে হত্যার বিষয়ে যে প্রশণ সৃষ্টি হইয়াছে, তাহা ময়না তদমতকারী ডাত্তুারের মতামতে সুপ্রতিষ্ঠিত হইয়াছে। অভিযুত্তু আসামীর বিরতদ্ধে গঠিত অভিযোগ প্রমানে সন্দেহের সৃষ্টি হইলে তাহার ফলাফল Benefit of doubt আইনানুগ ভাবে আপীলকারীর পক্ষে নিষ্পত্তি হইবে। ...(৮২)

State of U.P. Vs. Ballabh Das and others, AIR 1985 1384; Yogeshwar Gope Vs. The State, 58 DLR (AD) 73; Harun Sheikh @ Harunur Rashid and another Vs. The State, 8 BLD 425 (HCD) 1988; Md. Isahaque Ali and others Vs. The State, 16 BLT 69 (HCD) 2008; State Vs. Monu Meah, 6 BLC 402 (HCD) 2001; State Vs. Badshah Mollah, 41 DLR 11; Mizazul Islam alias Dablu Vs. The State, 41 DLR (AD) 157; Nurul Islam alias Nur Islam Vs. The State, 18 BLD 695 (HCD) 1998; Mizazul Islam @ Dablu Vs. The State, 41 DLR (AD) 157 (1989); Sarwan Singh Rattan Singh Vs. State of Pubjab, A.I.R 1957 (SC) 637; Aminul Islam alias Ranga and others Vs. The State, 5 BLC (AD) 179 (2000); Mohammad Ali and another Vs. The State, 1 BLC 164 (HCD) 1996; Halim Sheikh and other Vs. The State, 13 BLC 102 (HCD) 2005; Zamir Ali (Md) and others Vs. The State, 59 DLR 433 (HCD) 2007; Mohammad Shafi Vs. The Crown, 6 DLR 104 (AD) West Pakistan 1954; Md. Baharuddin Mia Vs. The State, 9 DLR 209 (HCD) 1957; Mezanur Rahaman and others Vs. The State, 16 BLD 293 (AD) 1996; Mezanur Rahaman and others Vs. The State, 2 BLC 27 (AD) 1997 and 16 BLD 293 (AD) 1996; The State Vs. Altazur Rahaman, 2 BCR 264 (AD) 1982; Gamdoor Singh Vs. The State, 1981 CRL. LJ. 1912 and Al-Amin and 5 others Vs. the State, 51 DLR 154 (HCD) 1999 and 19 BLD (HCD) 1999 ref.

জনাব মোহাম্মদ আলী খান, এ্যাডভোকেট।

- - - - আপীলকারী পক্ষে।

জনাব ফজলুর রহমান খান, ডি,এ,জি সঙ্গে
জনাব ইউসুফ মাহমুদ মোর্শেদ ও
জনাব কাজী এবাদত হোসেন, এ,এ,জি

- - - প্রতিবাদী পক্ষে।

রায়

বিচারপতি মোঃ আবু জাফর সিদ্দিকীঃ

ইহা ফৌজদারী কার্য বিধির ৪১০ ধারার বিধান মোতাবেক দন্ড ও সাজার বিরতদ্ধে একটি ফৌজদারী আপীল।

অতিরিত্তু দায়রা জজ, ৩য় আদালত, যশোর, দায়রা মামলা নং-৬৮/১৯৯৬ যাহা যশোর কতোয়ালী থানার মামলা নং-২৪ তারিখ ১৩/০৯/১৯৯৪ এবং জি,আর নং-১০৭৩/১৯৯৪ ধারা ৩০২/৩৪ দন্ড বিধি হইতে উদ্ভুদ এবং উহাতে আপীলকারীকে দন্ড বিধির ৩০৪ (প্রথম ভাগ) ধারায় দোষী সাব্যসত করিয়া গত ইং ১৭/০৫/১৯৯৯ তারিখে ১০ (দশ) বৎসর সশ্রম কারাদন্ড ও ২,০০০/- হাজার টাকা জরিমানা অনাদায়ে অতিরিওু ১ (এক) বৎসর সশ্রম কারাদন্ডের আদেশ হইলে আপীলকারী উওু দন্ডাদেশ ও সাজার রায়ে সংক্ষুব্দ হইয়া অত্র ফৌজদারী আপীল দায়ের করেন।

আপীলটি নিষ্পত্তির স্বার্থে রাষ্ট্র পক্ষের মামলার সংক্ষিপ্ত বিবরন এই যে, মোঃ আনোয়ার হোসেন গত ইং ১৩/৯/১৯৯৪ তারিখে রাত ০০.১৫ ঘটিকায় যশোর কোতয়ালী থানায় হাজির হইয়া এই মর্মে এজাহার করেন যে, ইং ১২/৯/১৯৯৪ তারিখে রাত অনুমান ১০.০০ ঘটিকার সময় আপীলকারী ওমর ফারতক ওরফে মন্টু সহ এজাহার নামীয় ১৬ জন আসামী বেআইনী জনতায় দলবদ্ধ হইয়া মারাত্মক অসএসসএ ও বোমা সহ তাহার বাড়ীতে অনধিকার প্রবেশ করে এবং আসামী মন্টু, মনা, শরীফ, কালাম ও টিটো এলোপাথারী ভাবে বাড়ীর ভিতরে বোমা নিক্ষেপ করিতে থাকে। বোমার আঘাতে তাহার কাজের মেয়ে নাসিমার মাথায় ও ঘাড়ে রত্তুাত্তু জখম হইয়া ঘটনাসহলে মারা যায়, এজাহারকারীর বাম হাতের কুনুই ও তাহার ভাই সরোয়ারের মাথায় এবং আলমের বাম পায়ে রত্তুাওু জখম হয়। তাহাদের পৈতৃক সম্পত্তি লইয়া দীর্ঘদিন যাবৎ আসামীদের সহিত মামলা মোকর্দ্দমা থাকায় পূর্ব শত্রততার জের হিসাবে আসামীরা এই ঘটনা ঘটাইয়াছে। বোমার শব্দে ও ডাক-চিৎকারে প্রতিবেশী সাক্ষীগন ঘটনাসহলে আসিয়া ঘটনা দেখে ও শুনে এবং তাহারা বৈদ্যুতিক লাইটের আলোতে আসামীদের চিনিয়াছে। অতঃপর মোঃ আনোয়ার হোসেন যশোর কোতয়ালী থানায় হাজির হইয়া এজাহার দায়ের করেন।

তদমতকারী কর্মকর্তা ঘটনাসহলে যাইয়া নিহত নাসিমার সুরতহাল রিপোর্ট প্রসতুত করিয়া লাশের ময়না তদমেতর প্রয়োজনীয় ব্যবসহা গ্রহন করেন। ঘটনাসহল পরিদর্শন করিয়া সূচীপত্র সহ খসড়া মানচিত্র অঙ্কন, আলামত জব্দ করিয়া জব্দ তালিকা প্রসতুত এবং বাদী ও সাক্ষীদের বত্তুব্য ফৌজদারী কার্যবিধির ১৬১ ধারার বিধান মোতাবেক লিপিবদ্ধ করেন। মামলাটি সার্বিক তদমেত এজাহারে বর্ণিত অভিযোগ প্রাথমিকভাবে প্রমানিত হওয়ায় দন্ডিত আপীলকারী সহ এজাহার নামীয় ১৬ জন আসামীর মধ্যে ৫ জনের বিরতদ্ধে দন্ড বিধি ৩০২ ও ৩৪ ধারায় অভিযোগ পত্র দায়ের করেন।

মামলাটি বিচারের জন্য প্রসতুতের পর বিজ্ঞ দায়রা জজ আদালত, যশোরে প্রেরিত হইলে তিনি উহা নিষ্পত্তির জন্য অতিরিত্তু দায়রা জজ, ৩য় আদালত, যশোরে প্রেরণ করেন। বিচারিক আদালত দন্ডিত আপীলকারী সহ অন্যান্যদের বিরতদ্ধে ৩০২ ও ৩৪ ধারায় অভিযোগ গঠন করিয়া পাঠ করিয়া শুনাইলে তাহারা নিজেদের নির্দোষ দাবী করিয়া বিচার প্রার্থনা করেন।

রাষ্ট্রপক্ষ মামলাটি প্রমানের জন্য মোঢ~ ৯ জন সাক্ষী আদালতে পরীক্ষা করিয়াছে, আপীলকারী পক্ষের আইনজীবী তাহাদের জেরা করিয়াছে, কিমুত আসামী পক্ষ কোন সাফাই সাক্ষী দেন নাই বা অন্য কোন কাগজ পত্র বিচারিক আদালতে উপসহাপন করেন নাই। সাক্ষীদের জবানবন্দী ও জেরা সমাপ্তির পর বিজ্ঞ বিচারক কর্তৃক অাসামীকে ফৌজদারী কার্যবিধির ৩৪২ ধারার বিধান মোতাবেক পুনরায় পরীক্ষা করা হইলে এবারও তাহারা নিজেদের নিদোর্ষ দাবী করেন।

বিচারিক আদালত উভয় পক্ষের যুত্তিু তর্ক, রাষ্ট্র পক্ষের উপসহাপিত সাক্ষীদের প্রদত্ত সাক্ষ্য ও নথিতে সংরক্ষিত কাগজপত্র পর্যালোচনা করিয়া উপরে উল্লেখিত দন্ডাদেশ ও সাজার রায় প্রদান করিয়াছেন। উত্তু রায়ে দন্ডিত আপীলকারী সংক্ষুদ্ধ ও অসমুতষ্ট হইয়া তর্কিত রায়ের বিরতদ্ধে এই আদালতে অত্র ফৌজদারী আপীল মোকর্দ্দমা দায়ের করিয়াছেন।

নথি দৃষ্টে ইহা প্রতিয়মান হয় যে, অত্র আপীলটি গত ইং ১৬/০৬/১৯৯৯ তারিখে দায়ের হয় এবং ইং ২২/০৬/১৯৯৯ তারিখে গৃহীত হওয়ার পর নিমণ আদালতের নথি পাওয়া ও পেপার বুক প্রসতুত সাপেক্ষে গত ইং ২৭/০৬/২০০২ তারিখে ইহা শুনানীর জন্য প্রসতুত হইয়াছে। পরবর্তীকালে আপীলকারী গত ইং ০৫/০৩/২০০৩ তারিখে জামিন লাভ করিয়া মামলাটি শুনানীর জন্য সুদীর্ঘ ১১ বৎসর কোন পদক্ষেপ গ্রহন করেন নাই।

আপীলটি শুনানীর জন্য এই আদালতের কার্য তালিকায় আসিলে জনাব মোহাম্মদ আলী খান, বিজ্ঞ কৌশুঁলী দন্ডিত আপীলকারীর পক্ষে আদালতে উপসিহত হইয়া বলেন, বিজ্ঞ অতিরিত্তু দায়রা জজ, ৩য় আদালত, যশোর মামলার ঘটনা, পারিপার্শ্বিকতা ও রাষ্ট্র পক্ষের পরীক্ষিত সাক্ষ্য বিচারকের দৃষ্টিভঙ্গিঁতে বিবেচনা না করিয়া আইনগত ও ঘটনাগত ভূল করিয়াছে। তিনি বলেন, অত্র মামলায় এজাহারে ১৬ জন আসামীর নাম উল্লেখ করা হইলেও পুলিশ তদমত করিয়া মাত্র ৫ জন আসামীর বিরতদ্ধে অভিযোগ পত্র দাখিল করিয়াছে এবং ১১ জন এজাহার নামীয় আসামীকে অব্যহতি প্রদান করিয়াছে, যাহার বিরতদ্ধে এজাহারকারী সংশ্লিষ্ট আদালতে কোন নারাজী দরখাসত দেন নাই।

তিনি বলেন, রাষ্ট্রপক্ষ মামলা প্রমানের জন্য বিচারিক আদালতে ৯ (নয়) জন সাক্ষী উপসহাপন করিয়াছে, কিমও নিকট প্রতিবেশী ও নিরপেক্ষ কোন সাক্ষী পরীক্ষিত হয় নাই। রাষ্ট্রপক্ষের উপসহাপিত সাক্ষ্য প্রমানের ভিত্তিতে বিজ্ঞ বিচারক কেবল মাত্র আপীলকারীকে দন্ড ও সাজা প্রদান করিয়াছেন। অভিযুত্তু অন্য ৪ জন নির্দোষ প্রমানিত হওয়ায় তাহাদের অত্র মামলার অভিযোগের দায় হইতে খালাস প্রদান করা হইয়াছে। সেকারন মামলার এজাহার আদৌ সত্য নয়, পরিকল্পিত ভাবে এজাহারকারী নিজে অথবা তাহাদের বাড়ীর লোকজন কাজের মেয়ে নাসিমাকে হত্যা করিয়া পূর্ব শত্রততার কারনে আপীলকারী সহ অন্যান্য আসামীর বিরতদ্ধে মিথ্যা মামলা দায়ের করিয়াছে। তিনি পুনরায় বলেন, সেইকারনে পুলিশের সাথে যোগসাজসী ভাবে নিহত নাসিমার বাবা-মাকে এই মামালার সাক্ষী মান্য করিয়া পরীক্ষা করা হয় নাই। তাহা ছাড়াও নিহত নাসিমার মা’ নিজে বাদী হইয়া এজাহারকারী সহ অন্যান্য সাক্ষীদের বিরতদ্ধে ১টি হত্যা মামলা দায়ের করিয়াছিল, যাহা পরবর্তী কালে এজাহারকারী জমিজমার বিনিময়ে বেআইনীভাবে নিহতের বাবা/মায়ের সহিত আপোষ মিমাংসা করিয়াছে। জনাব মোহাম্মদ আলী খান আরো বলেন, এই মামলার সাক্ষীগন পরষ্পর আত্মীয় এবং এক দলভুত্তু লোক। এজাহারকারী নিজে তাহার এজাহারে যে কথা বলেন নাই, তাহা ১নং সাক্ষী হিসাবে আদালতে সাক্ষ্য প্রদান কালে বলিয়া এজাহারের ঘটনা হইতে সরিয়া গিয়াছে যাহা Subsequent embellishment হওয়ায় উহা গ্রহন যোগ্য সাক্ষ্য হিসাবে বিবেচিত হইবে না।

তিনি বলেন, নাসিমা বোমার আঘাতে নিহত হইয়াছে, তাহা ময়না তদমত রিপোর্টে মেডিকেল অফিসার উল্লেখ করে নাই, সেকারন মামলাটির তদমতকারী কর্মকর্তা নিহত নাসিমার শরীরের যখমগুলি কোন ধরনের অসএ দ্বারা সংঘটিত হইয়াছে, তাহার ব্যাখ্যা চাহিলে সংশ্লিষ্ট হাসপাতালের আবাসিক মেডিকেল অফিসার রেডিওলজিষ্ট কর্তৃক প্রসতুতকৃত অত্র সংত্রুামত প্রতিবেদন প্রেরন করিয়াছে, যাহাতে তিনি উল্লেখ করিয়াছে যে, কোন ভোতা অসেএর দ্বারা উত্তু জখম সংঘটিত হইতে পারে। উল্লেখিত জখমের ভিতর কোন স্পিলিন্ট বা বিস্ফোরক জাতীয় দ্রব্য পাওয়া যায় নাই। জনাব মোহাম্মদ আলী খান বলেন, ঘটনাসহল থেকে উদ্ধারকৃত আলামত কোন বিষ্ফোরক বিশেষজ্ঞ দ্বারা রাসায়নিক পরীক্ষা করাইয়া প্রতিবেদন গ্রহন করা হয় নাই, যাহার আইনগত ফলাফল আপীলকারী পাইবে।

তিনি বলেন, বিজ্ঞ বিচারক রাষ্ট্র পক্ষের সাক্ষ্য গ্রহন শেষে দন্ডিত আসামীকে ফৌজদারী কার্যবিধির ৩৪২ ধারা মোতাবেক সঠিক ভাবে পরীক্ষা করেন নাই। যাহাতে উত্তু আইনের অবশ্য পালনীয় কর্তব্যের ব্যত্যয় ঘটিয়াছে, সেকারন দন্ডিত আসামী ন্যায় বিচার হইতে বঞ্চিত হইয়াছে। তিনি বলেন, নিমণ আদালতের বিজ্ঞ বিচারক মামলার ঘটনা, প্রাসঙ্গিকতা এবং প্রচলিত আইন অনুস্বরণ না করিয়া ভাবাবেগ দ্বারা তাড়িত হইয়া সম্পুর্ন দায় সারা ভাবে বিচারকার্য সম্পন্ন করিয়াছেন, অনুরতপ অবসহায় তর্কিত দন্ড ও সাজার রায় রক্ষনীয় নহে, তিনি ন্যায় বিচারের স্বার্থে তর্কিত রায় রদ-রহিতের জন্য প্রার্থনা করেন।

জনাব মোহামদ আলী খান তাহার বত্তুব্যের স্বপক্ষে এই আদালত সহ আপীল বিভাগের বেশ কিছু সংখ্যক মামলার নজির উপসহাপন করিয়াছে, যাহা ন্যায় বিচারের স্বার্থে এই রায়ের শেষাংশে প্রাসঙ্গিকতা ও প্রয়োজনীয়তা নির্ণয়ের জন্য আলোচনা ও আমাদের মতামত প্রদান করা হইবে।

জনাব ফজলুর রহমান খান, বিজ্ঞ ডেপুটি এ্যাটর্ণী জেনারেল, সঙ্গে জনাব ইউসুফ মাহ্মুদ মোর্শেদ ও কাজী এবাদত হোসেন বিজ্ঞ সহকারী এ্যাটর্ণী জেনারেল দ্বয় রাষ্ট্র পক্ষে উপসিহত হইয়া আপীলকারী পক্ষের বত্তুব্যের তিব্র বিরোধিতা করিয়া বলেন, অত্র মামলায় আপীলকারী সহ অন্যান্য আসামীগন পূর্ব পরিকল্পিতভাবে বিভিন্ন অসএ-সসএ ও বোমা বহন করিয়া এজাহারকারীর বাড়ীতে অনধিকার প্রবেশ করিয়া হামলা চালায় এবং আপীলকারী ওমর ফারতক ওরফে মন্টুর নিক্ষেপ করা বোমার আঘাতে এজাহারকারীর বাড়ীর কাজের মেয়ে নাসিমা ঘটনাসহলে নিহত হয়। ঘটনা সংঘটিত হওয়ার মাত্র ২ ঘন্টা ১৫ মিনিটের মধ্যে তিনি সংশ্লিষ্ট থানায় যাইয়া আপীলকারী সহ অন্যান্য ১৬ জন আসামীর বিরতদ্ধে মামলা দায়ের করিয়াছে। তিনি বলেন, পরীক্ষিত ৯ জন সাক্ষীর মধ্যে ৬ জনই ঘটনার প্রত্যক্ষ দেখা সাক্ষী। তাহারা সকলেই বৈদ্যুতিক আলোয়ে আসামীদের চিনিয়াছে এবং বোমা নিক্ষেপ করিতে দেখিয়াছে, তাহারা একে অপরের বত্তুব্য জোরালো ভাবে সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে এবং জব্দকৃত আলামত সহ আপীলকারীকে আদালতের কাঠগড়ায় সনাত্তু করিয়াছে।

জনাব ফজলুর রহমান খান বলেন, আপীলকারী নিহত নাসিমাকে নৃসংশভাবে বোমা বিষ্ফোরন ঘটাইয়া হত্যা করিয়াছে। বোমার আঘাতে নাসিমার মৃত্যু হইয়াছে, ইহা ময়না তদমত রিপোর্টে উল্লেখ থাকার কোন প্রয়োজন নাই বা ইহা সংশ্লিষ্ট ডাত্তুারের কাজও নয়। বিজ্ঞ ডেপুটি এ্যটর্ণী জেনারেল আরো বলেন, বোমা বিষ্ফোরনে নিহত হইলে বিষ্ফোরক দ্রব্য বা আলামত বিশেষজ্ঞ দ্বারা রাসায়নিক পরীক্ষা করার কোন প্রয়োজন নাই, কারন ইহা একটি হত্যা মামলা, বিষ্ফোরক দ্রব্যের মামলার ক্ষেত্রে উহা প্রয়োজন হইতে পারে। সংঘটিত হত্যাকান্ডের মামলাটি রাষ্ট্র পক্ষ পরষ্পর সমর্থনযোগ্য সাক্ষ্য দ্বারা (Corroborative evidence) বিচারিক আদালতে প্রমান করিয়াছে। জনাব ফজলুর রহমান খান Subsequent embellishment সম্পর্কে বলেন, এজাহারকারী ঘটনা সংঘটিত হওয়ার অব্যবহিত পরেই এজাহার করিয়াছে, তিনি সঠিক ভাবেই তাহার এজাহার সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে, যাহা অন্যান্য চাক্ষুস দেখা সাক্ষীগন জোরালো ভাবে তাহার বত্তুব্য সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে। ইহাতে মামলার গুনাগুনের (Merit) কোন ক্ষতি হয় নাই।

তিনি আপীলকারী পক্ষের বত্তুব্য প্রত্যাক্ষান করিয়া বলেন, এজাহারকারীর বিরতদ্ধে নিহত নাসিমার মা’ কোন হত্যা মামলা করেন নাই। নিমণ আদালতে বিজ্ঞ বিচারক কর্তৃক ফৌজদারী কার্যবিধির ৩৪২ ধারার বিধান মোতাবেক পরীক্ষা কালে দন্ডিত আপীলকারীকে প্রশণ করা হইলে তিনি কিছু বলিবেন না বলিয়া আদালতকে সুষ্পষ্টভাবে জানাইয়াছে, তাহাছাড়াও কথিত হত্যা মামলার কোন অসিতত্তব এই মামলায় বিচার কালে দৃশ্যত: হয় নাই। নিহত নাসিমার বাবা-মা ঘটনার প্রত্যক্ষ্য সাক্ষী না হওয়ায় এবং ঘটনা সহলে তাহারা উপসিহত না থাকার কারনে তদমতকারী কর্মকর্তা এই মামলায় তাহাদের আবশ্যকীয় সাক্ষী হিসাবে চার্জশীটে অমতর্ভুত্তু করেন নাই, ইহাতে মামলার গুনগত কোন ক্ষতি হয় নাই।

তিনি বলেন, দন্ডিত আপীলকারীর পরিবারের সাথে এজাহারকারী পূর্ব শত্রততা থাকার কারনেই তাহাদেরকে হত্যা করার উদ্দেশ্যে এজাহারকারীর বাড়ীতে আপীলকারী পরিকল্পিতভাবে অন্যান্য আসামীদের সহযোগীতায় বোমা হামলা চালাইয়াছে, যাহা পরীক্ষিত সাক্ষীগন একে অপরকে সমর্থন করিয়া বিচারিক আদালতে সাক্ষ্য প্রদানের মাধ্যমে সন্দেহাতীতভাবে মামলাটি প্রমান করিয়াছে।

জনাব ফজলুর রহমান খান বলেন, ফৌজদারী কার্যবিধির ৩৪২ ধারা মোতাবেক নিমণ আদালতের বিজ্ঞ বিচারক সঠিকভাবে আপীলকারীকে পরীক্ষা করিয়াছে। ইহাতে প্রচলিত আইনের কোন ব্যত্যয় ঘটে নাই। তিনি বলেন, দন্ডিত আপীলকারীর নিক্ষেপ করা বোমার আঘাতেই নাসিমা নিহত হইয়াছে, যাহা রাষ্ট্র পক্ষ সাক্ষ্য দ্বারা প্রকাশ্য আদালতে সন্দেহাতীত ভাবে প্রমান করিতে সক্ষম হইয়াছে। সেকারন তিনি তর্কিত রায়ের উপর এই আদালতের হসতক্ষেপ না করিয়া ন্যায় বিচারের স্বার্থে আপীলটি খারিজ করিয়া নিমণ আদালতের দন্ড ও সাজার রায় বহাল রাখার প্রার্থনা করেন।

বিজ্ঞ ডেপুটি এ্যাটর্ণী জেনারেল তাহার বত্তুব্যের সমর্থনে বাংলাদেশ, ভারত ও পাকিসহানের বেশ কিছু সংখ্যক মামলার নজির উপসহাপন করিয়াছে, সঠিক সিদ্ধামেত উপনিত হওয়ার জন্য উত্তু নজির সমূহের প্রাসঙ্গীকতা ও প্রয়োজনীয়তা নির্নয়ের জন্য এই রায়ের শেষাংশে আলোচনা ও আমাদের মতামত প্রদান করা হইবে।

অত্র আপীলটি শুনানী কালে রাষ্ট্র পক্ষের পরীক্ষিত সাক্ষ্য ও নিমণ আদালতের নথিতে সংরক্ষিত প্রাসঙ্গিক কাগজ-পত্র ন্যায় বিচারের স্বার্থে পর্যায়ত্রুমে নিবিড় ভাবে পরীক্ষা ও পর্যালোচনা করা হইল;

রাষ্ট্র পক্ষের ১নং সাক্ষী, শেখ মোঃ আনোয়ার হোসেন, এজাহার সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে। ঘটনার তারিখ, সময় এবং আসামীদের নাম সহ তাহাদের বৈদ্যুতিক আলোতে চেনার কথা বলিয়াছে। আপীলকারী মন্টু কর্তৃক ছোড়া বোমার আঘাতে তাহার কাজের মেয়ে নাসিমা নিহত হইয়াছে। সঙ্গীয় আসামী মনা, কালাম, টিটো, লোকমান, বাবু, রহমান, চান্দু ও ইসমাইলের নাম এবং তাহাদের বিরতদ্ধে সুনিদৃষ্ট অভিযোগ আদালতে বলিয়াছে। তিনি এজাহার, তাহার স্বাক্ষর প্রদর্শনী-১ ও ১/১ হিসাবে প্রমান করিয়াছে। জেরায়- আপীলকারী পক্ষে সাজেশন তিনি প্রত্যাক্ষান করিয়াছে, তবে স্বীকার করিয়াছে যে, প্রথমে মন্টু বোমা নিক্ষেপ করিয়াছে একথা এজাহারে বলেন নাই। জমি লইয়া বিরোধের কারনে আসামীরা পূর্বপরিকল্পিত ভাবে তাহাদের হত্যার উদ্দেশ্যে বাস ভবনে বোমা হামলা করিয়াছে, বোমার আঘাতে আহত এজাহারকারী ও তাহার দুই সহোদর ভাইয়ের রত্তু মাখা কাপড়, দারোগার কাছে দেয় নাই, ডাত্তুারী সনদ পত্র লইয়াছে, কিমও তাহা দারোগাকে দেয় নাই। নাসিমার মৃত্যুকে কেন্দ্র করিয়া তাহার মা’ এজাহারকারী সহ অপর দুই ভাই ও সাক্ষী ওবায়দুলের নামে একটি হত্যা মামলা করিয়াছিল, অনুরতপ সাজশন তিনি অস্বীকার করিয়াছে।

২নং সাক্ষী, ফুল মিয়া পুলিশের সিপাহী, নিহত নাসিমার মরদেহ ময়না তদমেতর জন্য মর্গে লইয়া যায় এবং উহা সনাত্তু করেন, তিনি অফিসিয়াল সাক্ষী মাত্র।

৩নং সাক্ষী, সারোয়ার হোসেন এজাহারকারীর সহোদর ভাই, বাংলাদেশ বিমান বাহিনীর ফ্লাইট সার্জেন পদে চাকুরী করেন, ঘটনার দেখা সাক্ষী, আসামী মন্টুকে বোমা নিক্ষেপ করিতে দেখিয়াছে, ঐ বোমার আঘাতে তাহাদের কাজের মেয়ে নাসিমা নিহত হয় এবং তিনি নিজেও আহত হন, আসামী মনা, রহমান সহ অন্যান্য আসামীদের বোমা নিক্ষেপ করিতে দেখিয়াছে এবং তাহাদের বৈদ্যুতিক আলোতে চিনিয়াছে। এই সাক্ষী এজাহারকারীর বত্তুব্য সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে। জেরায় বলেন, ১৫/১৬ জন আসামী এলাপাথাড়ী ভাবে বোমা মারে, নাসিমা রান্নাঘর হইতে বড় ঘরে যাইতেছিল, বিজলী বাতিতে আসামীদের চিনিয়াছে এবং মন্টু প্রথম বোমা মারে এসব কথা দারোগাকে বলিয়াছে।

৪নং সাক্ষী, মোঃ আসলাম হোসেন বিমান বাহিনীতে চাকুরী করেন, তিনি এজাহারকারীর সহোদর ভ্রাতা, ঘটনার সময় বাড়ীতে ছিলেন, দেখা সাক্ষী হিসাবে তিনি বলিয়াছে, “নাসিমা রান্না ঘর হইতে আসিতেছিল, তার গায়ে বোমা লাগে, আহত হয় এবং পরে মারা যায়। ওমর ফারতক, সাবু, মনা, রহমান, কালাম, টিটো, লোকমান, বাবু, ইসমাইল, জাহাঙ্গীর ও চান্দু সহ ১৫/২০ জন, তাহারা ৭/৮ টি বোমা ফাটায়, তার মধ্যে ওমর ফারতককে বোমা নিক্ষেপ করিতে আমি নিজে দেখিয়াছি।” তিনি নিহত নাসিমার সুরতহাল রিপোর্ট প্রদর্শনী-২ জব্দকৃত আলামত বসতু প্রদর্শনী-ক এবং খ সিরিজ এবং জব্দ তালিকা প্রদর্শনী-৩ তাহার স্বাক্ষর প্রদর্শনী-৩/১ হিসাবে প্রমান করিয়াছে। জেরায় বলেন, বাড়ীর মহিলারাও ঘটনা দেখিয়াছিল, তাহারা সহ তিন ভাই সাক্ষী দেই, তাহাদের বাড়ীর মেয়েদের পুলিশ সাক্ষী করিয়াছে কিনা জানে না। আসামী ওমর ফারতককে চিনতে পারিয়াছে, সে বোমা মারিয়াছে। তিনি পুনঃরায় বলেন, আসামী ওমর ফারতকদের সাথে তাহাদের দেওয়ানী মামলা চলিতেছে, সত্য নয় যে, ঐ শত্রততার কারনে নিজেরা বোমা ফাটিয়ে সত্য চাপা দেওয়া এবং জব্দ করার জন্য মিথ্যা মামলা করিয়াছে বা আজ যেসব আসামীর নাম বলিয়াছে তাদের নাম তদমতকালে পুলিশকে বলে নাই বা তাহার ভাইরাই নাসিমাকে খুন করিয়াছে। সেকারনে নাসিমার মা’কে তাহারা জোত জমির বিনিময়ে মামলা মিমাংসা করিয়াছে, এই সকল প্রশণ অস্বীকার করিয়াছে।

৫ নং সাক্ষী, মোঃ সামসুল হক পাটোয়ারী, প্রতিবেশী, তিনি বিমান বাহিনীতে চাকুরি করেন। বোমার শব্দ ও হৈ চৈ শুনিয়া ঘটনাসহলে গিয়া দেখে নাসিমা মৃত অবসহায় উঠানে পড়িয়া আছে। ঘটনাসহলে বোমা বিষ্ফোরনের চিহু দেখিয়াছে। তিনি নিহত নাসিমার শরীরে কয়েকটি বোমার জখম দেখিয়াছেন। তিনি বলিয়াছে- “I heard that these persons on the dock had exploded the bombs, there by causing death of Nasima but I don’t know why they did so.” এই সাক্ষী ঘটনার অব্যবহিত পরে ঘটনাসহলে যাইয়া যাহা দেখিয়াছে এবং ঘটনার পারিপার্শ্বিকতা আদালতে বর্ণনা করিয়াছে এবং আদালতের কাঠগড়ায় আসামীদের সনাত্তু করিয়াছে। তিনি জেরায় বলেন, “At the place of incident I did not hear the name of any accused after the case being started I came to know that these persons on the dock have been made the same statement to the I.O. It was perhaps on the day. I can not remember anothers.”

৬নং সাক্ষী ওবায়দুল হক ওরফে সাকিল, এজাহারকারীর প্রতিবেশী ও একজন দেখা সাক্ষী, তিনি শোরগোল শুনিয়া এগিয়ে যায়, তিনি আসামী মন্টু, মনা, টিটো, কালাম, শরিফ সহ ১২/১৪ জনকে দেখিয়াছে।“মন্টু বলল বোমা দে, বোমা দে, তারপর মন্টু ও কয়েক জনকে বোমা নিক্ষেপ করতে দেখি, মন্টুকে বোমা নিক্ষেপ করতে নিজে দেখিছি। সে আনোয়ারের উঠানে বোমা মারে। আসামীরা চলিয়া যাওয়ার পর বাড়ীর মধ্যে যাইয়া দেখে কাজের মেয়ে বোমার আঘাতে ছটফট করিতে করিতে ঘটনাসহলেই মারা যায়।” এই সাক্ষীর উপসিহতিতে নাসিমার বিচ্ছিন্ন হওয়া চুল, বোমার কৌটা, জালের কাঠি ইত্যাদি আলামত জব্দ করিলে তিনি জব্দ তালিকায় স্বাক্ষর করিয়াছে, যাহা আদালতে প্রদর্শীত হইয়াছে। জেরায় বলেন, আসামী মন্টু সহ অন্যদের বিদ্যুতের আলোতে দেখিয়াছে এবং বোমার আঘাতে নাসিমা, আনোয়ার, আসলাম আহত হয়। তিনি একটি অসএ মামলায় সাজা প্রাপ্ত আসামী, জনৈক চান্দুকে ছুরি মারা কেসের আসামী, নাসিমার মায়ের দায়ের কৃত হত্যা মামলায় আসামী ছিলেন, আপীলকারী পক্ষের উপরোত্তু সাজেশন তিনি সত্য নয় বলিয়া অস্বীকার করিয়াছে। তিনি ১,৩ ও ৪ নং সাক্ষীকে সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে।

৭নং সাক্ষী মোঃ হেমায়েত উদ্দিন প্রতিবেশী, বোমার শব্দ শুনিয়া তিনি ঘটনাসহলে যাইয়া দেখে নাসিমা মারা গিয়াছে এবং তাহার ঘাড়ের পিছনে এবং মাথার পিছনে বোমার আঘাতে উড়িয়া গিয়াছে। তিনি ঘটনাসহলে যাওয়ার সময় আসামী রহমান, মোত্তুার হোসেনকে চলিয়া যাইতে দেখিয়াছে। তিনি এজাহারকারী আনোয়ারের কাছে মন্টু, রহমান, মোত্তুার, কালাম, টিটো, চান্দু ও ইসমাইলের নাম শুনিয়াছে। জেরায় বলেন, “শুনিয়াছি যে, মৃত নাসিমার মা’ বাদী হইয়া এই ঘটনার পর আমার এবং আমার পুত্রদের বিরতদ্ধে মোকর্দ্দমা করিয়াছিল।”

৮নং সাক্ষী ডাঃ মোমতাজুল হক তিনি নিহত নাসিমার ময়না তদমত করিয়া রিপোর্ট দিয়াছে। ময়না তদমতকালে নিহতের শরীরে আঘাতের চিহু বর্ণনা করিয়াছে এবং মৃত্যুর কারন সম্পর্কে নিমেণাত্তু মতামত দিয়াছে- “Death in my opinion is due to intracranial hemorrhage and shock, resulting from above mentioned injury which is anty mortem and homicidal in nature.” তিনি আদালতে ময়না তদমত রিপোর্ট প্রদর্শনী-৪ এবং তাহার স্বাক্ষর প্রদর্শনী ৪/১ হিসাবে প্রমান করিয়াছে। জেরায় বলিয়াছে, আমি এইজ অব ইনজুরি উল্লেখ করি নাই। আমি মোদির জুরিস প্রতডেন্স অনুস্বরন করি, ফরমে নাই তাই লিখি নাই, আমি মৃতার শরীরে কোন পোড়া দাগ উল্লেখ করি নাই। আমার রিপোর্টে বোমার কোন উল্লেখ নাই।

৯নং সাক্ষী মোঃ আলাউদ্দিন, পুলিশ পরিদর্শক, তিনি মামলাটি সরেজমিনে তদমত করিয়া প্রাথমিকভাবে প্রমানিত হওয়ায় দন্ড বিধি ৩০২/৩৪ ধারায় ৫ জন আসামীর বিরতদ্ধে অভিযোগ পত্র দাখিল করিয়াছে। আদালতে এজাহার, তাহার স্বাক্ষর প্রদর্শনী-৫ এবং ৫/১, মানচিত্র ও সূচীপত্র প্রদর্শনী-৬,৭ তাহার স্বাক্ষর প্রদর্শনী-৬/১, ৭/১ জব্দ তালিকা প্রদর্শনী ৩/৩, সুরতহাল রিপোর্টে তাহার স্বাক্ষর ২/১ হিসাবে সনাত্তু ও প্রমান করিয়াছে, এজাহার নামীয় অন্যান্য আসামীদের বিরতদ্ধে প্রাথমিকভাবে অভিযোগ প্রমানিত না হওয়ায় তাহাদের মামলায় দায় হইতে অব্যাহতি প্রদান করিয়াছে।

উপরোত্তু সাক্ষীগনকে রাষ্ট্র পক্ষ বিচারিক আদালতে উপসহাপন ও পরীক্ষা করিয়াছে।

পরীক্ষিত সাক্ষীদের প্রদত্ত সাক্ষ্য পর্যালোচনায় দেখা যায় ১নং সাক্ষী এজাহারকারী, তিনি এজাহার সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে এবং আসামী পক্ষের দেওয়া সাজেশন অস্বীকার করিয়াছে। ২নং সাক্ষী পুলিশের সিপাহী, মৃতা নাসিমার লাশ ময়না তদমেতর সময় সনাত্তু করিয়াছে। ৩নং সাক্ষী মোঃ সারোয়ার এবং ৪নং সাক্ষী আসলাম হোসেন তাহারা এই মামলার ভিকটিম এবং দেখা সাক্ষী হিসাবে ১নং সাক্ষীকে সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে। ৫নং সাক্ষী সামসুল হক পাটোয়ারী, বাংলাদেশ বিমান বাহিনীর অডিটর, মামলার পারিপার্শ্বিকতা সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে। ৬নং সাক্ষী ওবায়দুল হক সাকিল প্রতিবেশী ও দেখা সাক্ষী, আপীলকারী মন্টু সহ অন্যান্যা আসামীদের বিদ্যুতের আলোতে বোমা নিক্ষেপ করিতে ও নাসিমাকে বোমার আঘাতে ছটফট করিয়া মৃত্যুবরন করিতে দেখিয়াছে এবং ১,৩ ও ৪নং সাক্ষীকে জোরালোভাবে সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে এবং আসামী পক্ষে দেয়া সাজেশন অস্বীকার করিয়াছে। ৭নং সাক্ষী মোঃ হেমায়েত উদ্দিন প্রতিবেশী, বোমার আওয়াজ শুনিয়া ঘটনাসহলে যান এবং আসামীদের দেখিয়াছে ও ঘটনা শুনিয়াছে। ৮নং সাক্ষী ডাঃ মোমতাজুল হক, নিহত নাসিমার ময়না তদমত সম্পন্ন করিয়া রিপোর্ট প্রদান করিয়াছে এবং উত্তু রিপোর্ট আদালতে সনাত্তু ও প্রমান করিয়াছে। জেরায়, কোন ধরনের অসেএর আঘাতে নাসিমা নিহত হইয়াছে তাহা উল্লেখ করে নাই। ৯নং সাক্ষী মোঃ আলাউদ্দিন তদমতকারী কর্মকর্তা হিসেবে তাহার তদমত কার্য সঠিক মর্মে সাক্ষ্য প্রদান এবং জেরায় দেওয়া সাজেশন অস্বীকার করিয়াছে।

উপরোত্তু আলোচনায় পরিলক্ষিত হয় যে, দন্ডিত আপীলকারী সহ অন্যান্য আসামীগন একই দলের সদস্য। এজাহারকারীর সঙ্গে পূর্ব হইতে সহায় সম্পত্তি লইয়া বিভিন্ন মামলা-মোকর্দ্দমা বিদ্যমান থাকায় পূর্ব শত্রততার আত্রেুাশে সুপরিকল্পিত ভাবে মারাত্মক অসএ-সসএ ও বোমা লইয়া স্বদলবলে এজাহারকারীর বাড়ীতে আত্রুমন চালাইয়াছে। আপীলকারীর হাতে থাকা বোমা নিক্ষেপ করিয়া এজাহারকারীর বাড়ীর গৃহপরিচারিকা নাসিমাকে হত্যা এবং এজাহারকারী ও তাহার অপর দুই সহোদর ভাইকে আহত করিয়াছে। ১,৩,৪ ও ৬ নং সাক্ষী বৈদ্যুতিক আলোয় ঘটনা স্বচক্ষে দেখিয়াছে এবং আদালতে একে অপরকে জোরালো ভাবে সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে। প্রতিবেশী সাক্ষীগন ঘটনার অব্যবহিত পরেই পূর্বাপর ঘটনাসহলে আসিয়াছে এবং ঘটনার পারিপার্শ্বিকতা বর্ণনা করিয়াছে।

নিমণ আদালতে নথি দৃষ্টে দেখা যায়, এজাহারকারী তার বাড়ীতে ঘটনা সংঘটিত হওয়ার মাত্র ২ ঘন্টা ১৫ মিনিটের মধ্যে সংশ্লিষ্ঠ থানায় মামলা দায়ের করিয়াছে। এজাহারকারী ও তাহার ভাই বোমার আঘাতে আহত হইয়াছে এবং তাহার বাড়ীর গৃহপরিচারিকা নিহত হইয়াছে, তিনি নিজ চোখে যাহা দেখিয়াছে, এজাহারের বর্ণনায় তাহারই প্রতিফলন ঘটিয়াছে।

বিজ্ঞ অতিরিত্তু দায়রা জজ, ৩য় আদালত, যশোর কর্তৃক প্রদত্ত গত ইং ১৭/০৫/১৯৯৯ তারিখের রায় পর্যালোচনা করিয়া দেখা যায় ১, ৩, ৪ ও ৬ নং সাক্ষীগন পরষ্পর একে অপরকে সমর্থন করিয়া রাষ্ট্র পক্ষের মামলা প্রমান করিয়াছে। বিশেষত দন্ডিত আপীলকারী সহ তাহার সহযোগী আসামীরা নাসিমা হত্যাকান্ডে সহযোগীতা করার বিষয় রায়ে পরিষ্ফুটিত হইয়াছে, কিমও তিনি সহযোগী আসামীদের অভিযোগের দায় হইতে অব্যহতি প্রদান করিয়া একমাত্র আপীলকারী মন্টুকে দন্ড ও সাজা প্রদান করিয়াছে বিষয়টি সঠিক ভাবে অনুধাবনের জন্য আদালতের প্রদত্ত রায়ের মতামত (observation) নিমেণ উদ্বৃত হইল;

“ঘটনার সময় পি,ডব্লিউ-১ বাড়ীতে ছিল। পি,ডব্লিউ-৩ এবং পি,ডব্লিউ-৪ বিমান বাহিননীতে চাকুরীরত অবসহায় বাড়ীতে ছিল বলিয়া প্রতিয়মান হইতেছে। উত্তু সাক্ষীদের ঘটনার সময় বাড়ীতে উপসিহতি সম্বন্ধে বিন্দুমাত্র সন্দেহ আসামীপক্ষ সৃষ্টি করিতে পারে নাই। এ মোকর্দ্দমায় ঘটনার বিষয় পূর্বে অনুমান করিয়া অন্য সাক্ষী ঘটনাসহলে উপসিহত থাকিবে ইহা অবাসতব ধারনা। যাহারা ঘটনাসহলের বাড়ীতে ছিল তাহারা ঘটনা দেখিবে ইহাই স্বাভাবিক। পি,ডব্লিউ-১, পি,ডব্লিউ-৩ এবং পি,ডব্লিউ-৪ ঘটনাসহলের বাড়ীতে উপসিহত থাকিয়া বৈদ্যুতিক বাতিতে আসামী সনাত্তু করন manner of occurrence সম্বন্ধে যে ভাষন দিয়াছে তাহা বিশ্বাসযোগ্য। পি,ডব্লিউ-১, পি,ডব্লিউ-৩ এবং পি,ডব্লিউ-৪ পরস্পর ভ্রাতা বলিয়া তাহাদের সাক্ষ্যকে খারিজ করিয়া দেওয়া যাইবে না।”

বিজ্ঞ বিচারক এরতপ ক্ষেত্রে পরীক্ষিত সাক্ষীগনকে বিশ্বাস করার স্বপক্ষে AIR ১৯৮৫ ১৩৮৪ পাতায় প্রকাশিত State of U.P. -vs- Ballabh Das and others মামলার নজির উল্লেখ করিয়াছে।

বিজ্ঞ অতিরিত্তু দায়রা জজ-৩য় আদালত, যশোর সাক্ষীগনের প্রদত্ত সাক্ষ্য বিশ্বাস করিয়াছে কিমও অভিযুত্তু অন্যান্য আসামীগন ফৌজদারী কার্যবিধির ৩৪ ধারার দায় হইতে অব্যহতি দিয়া একমাত্র আপীলকারীকে দন্ড বিধি ৩০৪ (প্রথম ভাগ) ধারায় দন্ড ও শাসিত প্রদানের ক্ষেত্রে তাহার রায়ে দেওয়া মতামতের (observation) সহিত সামঞ্জস্য পূর্ন নয়। এই মামলায় বিজ্ঞ বিচারক কেবল মাত্র পরীক্ষিত সাক্ষীদের পরষ্পর সমর্থন যোগ্য সাক্ষী (Corroborative evidence) মূল্যায়ন করিয়া ভাবাবেগ দ্বারা পরিচালিত হইয়াছে। যাহাতে ন্যায় বিচার বিঘিণত হওয়াই স্বাভাবিক। মামলার প্রাসঙ্গিকতার কারনে দন্ড বিধির ৩৪ ধারা নিমেণ উদ্বৃত হইল;

“৩৪ ধারাঃ যে ক্ষেত্রে কতিপয় ব্যত্তিু কর্তৃক সকলের একই অভিপ্রায় পুরনকল্পে কোন অপরাধ মূলক কার্য সম্পাদিত হয়, সেই ক্ষেত্রে অনুরতপ ব্যত্তিুগনের প্রত্যেকেই উত্তু কার্যের জন্য এরতপ দায়ী হইবেন যেন উত্তু কার্য উত্তু ব্যত্তিু কর্তৃক সম্পাদিত হইয়াছিল।”

একই অভিপ্রায় পুরনকল্পে একাধিক ব্যত্তিু যখন কোন একটা অপরাধমূলক কার্য করেন, তখন তাহাদের প্রত্যেক ব্যত্তিু সেই অপরাধের জন্য দায়ী হন, ইহাই দন্ড বিধির ৩৪ ধারা প্রতিপাদ্য বিষয়। নিমণ আদালতের বিজ্ঞ বিচারক তর্কিত রায়ে আসামী মনা, আব্দুর রহমান এবং ওমর ফারতক ওরফে মন্টু সম্পর্কে বলিয়াছেন;

“এই মোকর্দ্দমায় সাক্ষীরা আসামী কবির হোসেন এবং মোত্তুার হোসেনকে জড়িত করিয়া সাক্ষ্য প্রদান করে নাই। তবে পি,ডব্লিউ-১, পি,ডব্লিউ-৩, পি,ডব্লিউ-৪ এবং পি,ডব্লিউ-৬ এর সাক্ষ্যে উল্লেখ করা হইয়াছে আসামী মনা, রহমান ঘটনাসহলে বোমা নিক্ষেপ করিয়াছিল। কিমও সাক্ষীরা উল্লেখ করে নাই যে, আসামী মনা এবং আঃ রহমানের নিক্ষিপ্ত বোমায় কেউ আহত বা জখম হইয়াছে। এমতাবসহায় আসামী মনা, কবির হোসেন, আঃ রহমান এবং মোত্তুার হোসেনকে নাসিমা হত্যার জন্য দায়ী করা যায় না।
প্রসিকিউশনের সাক্ষ্য পর্যালোচনা করিয়া প্রমানিত হয় না যে, সকল আসামীরা একই অভিপ্রায় পুরন কল্পে অর্থাৎ নাসিমাকে হত্যার জন্য ঘটনাসহলে বোমা বিষ্ফোরন করিয়াছিল তবে আসামী পক্ষের সাথে এজাহারকারীর পূর্ব শত্রততা ছিল। আসামী গনের অভিপ্রায় ছিল বোমা বিষ্ফোরনের মাধ্যমে আতংক সৃষ্টি করিয়া এজাহারকারীকে একটি শিক্ষা দেওয়া, উপরোত্তু কারনে দন্ড বিধির ৩৪ ধারার বিধান মোতাবেক আসামী মনা, কবির হোসেন, আঃ রহমান এবং মোত্তুার হোসেনকে এই মোকর্দ্দমার ঘটনা সংঙ্গে সম্পৃত্তু করা যায় না।
আসামী ওমর ফারতক ওরফে মন্টু সহ যাহারা ঘটনাসহলে বোমা বিষ্ফোরনের ঘটনা ঘটাইয়াছে তাহাদের সকলেই জানে যে, বোমা বিষ্ফোরনের ফলে যে কোন লোক মারা যাইতে পারে। এইরতপ বিশ্বাস থাকা সত্বেও আসামী ওমর ফারতক ওরফে মন্টু ঘটনাসহলে বোমার বিষ্ফোরন ঘটাইয়াছিল। নিহত নাসিমাকে হত্যার কোন পূর্ব পরিকল্পনা বা উদ্দেশ্য আসামী ওমর ফারতক ওরফে মন্টুর ছিল না। বিধায় তাহাকে দন্ড বিধির ৩০২ ধারায় দোষী সাব্যসত করা যায় না। তবে এই আসামী পূর্ব জ্ঞান থাকা সত্বেও ঘটনাসহলে বোমা বিষ্ফোরন ঘটাইয়াছে যাহার ফলে জখম প্রাপ্ত হইয়া নাসিমার অকাল মৃত্যু ঘটিয়াছে। এমতাবসহায় এই আসামী দন্ড বিধির ৩০৪ (প্রথম খন্ড) ধারার অপরাধ করিয়াছে মর্মে প্রমানিত হইতেছে।”

বিজ্ঞ বিচারকের উপরোত্তু মতামতের প্রেক্ষিতে এবং মামলার প্রাসঙ্গিকতার কারনে দন্ড বিধির ৩০০, ৩০৪ (প্রথম ভাগ) নিমেণ উদ্বৃত করা হইল;

“৩০০। প্রথমঃ অতঃপর ব্যতিত্রুামত ক্ষেত্রসমূহ ব্যতিত দন্ডার্হ নরহত্যা খুন বলিয়া গন্য হইবে, যদি যে কার্যের ফলে মৃত্যু সংঘটিত হয় সেই কার্যটি মৃত্যু সংঘটনের উদ্দেশ্যেই সম্পাদিত হয়, অথবা
দ্বিতীয়তঃ যদি ইহা এইরতপ দৈহিক জখম করার উদ্দেশ্যে সম্পাদিত হয়, যাহা যে ব্যত্তিুর ক্ষতি সাধন করা হয় তাহার মৃত্যু ঘটাইতে পারে বলিয়া অপরাধকারীর জানা থাকে, অথবা
তৃতীয়তঃ যদি কোন ব্যত্তিুকে দৈহিক জখম করার উদ্দেশ্যে ইহা সম্পাদিত হয় এবং অভিষ্ট দৈহিক জখমটি প্রাকৃতিক স্বাভাবিক অবসহায় অনুরতপ মৃত্যু ঘটাইবার জন্য যথেষ্ট হয়, অথবা
চতুর্থতঃ যদি উত্তু কাযৃ সম্পাদনকারী ব্যত্তিু অবগত থাকে যে, ইহা এত আসন্ন বিপদজ্জনক যে, ইহা খুব সম্ভবতঃ মৃত্যু ঘটাইবে অথবা এইরতপ দৈহিক জখম ঘটাইবে যাহা মৃত্যু ঘটাইতে পারে এবং মৃত্যু সংঘটনের বা পুর্বোত্তু জখম ঘটাইবার ঝুঁকি নেওয়ার অজুহাতে ব্যতিরেকেই অনুরতপ কার্য সম্পাদন করে।
৩০৪। যে ব্যত্তিু খুন বলিয়া গণ্য নহে এইরতপ দন্ডার্হ নরহত্যা অনুষ্ঠান করে, সেই ব্যত্তিু কার্যের সাহায্যে মৃত্যু সংঘটিত হয় তাহা মৃত্যু ঘটাইবার সম্ভাবনা রহিয়াছে এমন গুরততর আঘাত প্রদানের উদ্দেশ্যে সম্পাদিত হইলে যাবজ্জীবন বা যে কোন বর্ননার কারাদন্ডে যাহার মেয়াদ দশ বৎসর পর্যমত হইতে পারে এবং তদুপরি অর্থদন্ডে দন্ডনীয় হইবে।
অথবা...................................................................................................................................................................................................................”

পরীক্ষিত সাক্ষীগন আসামীদের নাম এবং তাহাদের বোমাবাজী ও সমএাসী কর্মকান্ডে বর্ণনা করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে, যাহা বিজ্ঞ বিচারক তাহার রায়ে আমলে লইয়াছে, অনুরতপ অবসহায় বিচারিক আদালতের গঠিত চার্জ ও সাক্ষ্য অনুযায়ী অভিযুত্তুদের পূর্ব পরিকল্পনা প্রমানিত হয় নাই এরতপ মমতব্য গ্রহন যোগ্য নয়। দন্ড বিধির ৩৪ ধারার অভিযোগ সহযোগী আসামীদের বিরতদ্ধে সুস্পষ্টত তাহার দৃশ্যপটে আসা সত্বেও বিজ্ঞ বিচারক তাহাদের অভিযোগের দায় হইতে অব্যাহতি প্রদান করিয়া কেবল মাত্র আপীলকারীকে দন্ড বিধির ৩০৪-এ ধারায় দন্ড ও সাজা প্রদান করিয়াছে তাহা কোনভাবেই যৌত্তিুক ব্যাখ্যা বলিয়া প্রতিয়মান হয় না। এজাহারের বত্তুব্যের সমর্থনে পরীক্ষিত সাক্ষীগন তাহাদের সাক্ষ্যে স্পষ্টতই বলিয়াছে জমি-জমা লইয়া পূর্ব বিরোধের আত্রেুাশে পরিকল্পিত ভাবে এজাহারকারীর বাড়ীতে আসামীগন বোমা হামলা চালিয়ে নাসিমাকে হত্যা করিয়াছে এবং এজাহারকারী সহ অন্য দুই জনকে আহত করিয়াছে, যাহা সাক্ষীগন স্বচক্ষে দেখিয়াছে এবং আসামীগনকে বিদ্যুতের আলোতে চিনিয়াছে।

তর্কিত রায়ে যদি কেবল মাত্র ঘটনা ও পরীক্ষিত সাক্ষী দ্বারা মামলাটি সন্দেহাতীত ভাবে প্রমানিত হয় সে ক্ষেত্রে দন্ডবিধির ৩০২ ধারায় দন্ড ও শাসিত প্রদানের বিকল্প হিসাবে ৩০৪ ধারার (প্রথম ভাগ) এর বিধান মোতাবেক দন্ড ও ১০ বৎসর সাজা দেওয়ার স্বপক্ষে দেওয়া যুত্তিু আইনানুগ ভাবে গ্রহনযোগ্য কিনা, তাহা বিবেচনার দাবী রাখে।

জনাব মোহাম্মদ আলী খান, বিজ্ঞ আইনজীবি এই আদালতে আপীলকারীর পক্ষে যে সকল যুত্তিু ও নজির উপসহাপন করিয়াছে তাহা নিমেণ পর্যায়ত্রুমে আলোচনা করা হইল;

তিনি প্রশণ তুলিয়াছে যে, এজাহার নামীয় ১৬ জন আসামীর মধ্যে পুলিশ ৫ জনের বিরতদ্ধে অভিযোগ পত্র দাখিল করিয়াছে। অবশিষ্ট ১১ জনকে মামলার দায় হইতে অব্যহতি প্রদান করিলে এজাহারকারী অনুরতপ তদমেতর বিরতদ্ধে সংশ্লিষ্ট আদালতে কোন নারাজি আবেদন করেন নাই, পক্ষামতরে সাক্ষীগন আদালতে সাক্ষ্য প্রদানের সময় অভিযোগপত্রে উল্লেখিত (Sent up) আসামী মন্টু, মনা ও আব্দুর রহমান এবং অভিযোগপত্রে নাম নাই এরতপ (Not Sent up in charge sheet) আসামী কালাম, টিটো, লোকমান, বাবু, চান্দু ও ইসমাইলের বিরতদ্ধে আদালতে সাক্ষ্য প্রদান করিয়াছে, তর্কিত রায়ে বিজ্ঞ বিচারক উহা আমলে না লইয়া বিচারক সুলভ মনোভাব প্রদর্শন না করিয়া একমাত্র আপীলকারীকে দন্ড ও সাজা প্রদান করিয়াছে যাহার প্রেক্ষিতে তর্কিত রায়টি প্রশণবিদ্ধ হইয়াছে। সেকারন আপীলকারীর বিজ্ঞ কৌশুলী ইহাকে মিথ্যা ও ষড়মএমূলক মামলা হিসাবে দাবী করিয়াছে। তিনি তাহার দাবীর স্বপক্ষে কোন নজির বা আইন উপসহাপন করে নাই। তথাপিও বিজ্ঞ বিচারকের তর্কিত রায়ে উপরোত্তু বিষয়ে সুস্পষ্ট মতামত দেওয়া অাবশ্যকীয় ছিল, যাহা তিনি না করিয়া তথ্যগত ও আইনগত ভূল করিয়াছে।
পূর্ব শত্রততার জের হিসাবে উদ্দেশ্যমূলক ভাবে এজাহারকারী ও অন্যান্যরা নাসিমাকে হত্যা করিয়া তাহার দায় আপীলকারীর স্কন্ধে চাপানোর জন্য মিথ্যা মামলা করিয়াছে, এ প্রসঙ্গে তিনি সাক্ষীগনের জেরায় দেওয়া সাজেশন অত্র আদালতের দৃষ্টি আকর্ষন করিয়াছে। কিমও অনুরতপ সাজেশন সাক্ষীগন সত্য নয় বলিয়া অস্বীকার করিয়াছে, অন্যদিকে আসামী পক্ষের দেয়া সাজেশন প্রমানের জন্য দন্ডিত আপীলকারী পক্ষ হইতে নিহত নাসিমার মায়ের দায়েরকৃত কথিত হত্যা মামলার কোন সহিমোহরী নকল (Certified Copy) বা সাফাই সাক্ষী (Defence Witness) বিচারিক আদালতে উপসহাপন করে নাই, সেকারন আপীলকারী পক্ষের বিজ্ঞ কৌশুলীর উপরোত্তু বত্তুব্য বিবেচনায় লওয়ার ক্ষেত্রে আইনগত কোন ভিত্তি প্রতিষ্ঠিত হয় নাই।

বিজ্ঞ আইনজীবি সাক্ষীগনের গ্রহন যোগ্যতা নিয়ে প্রশণ তুলিয়াছে যে, এজাহারকারী সহ ৩ জন সাক্ষী সহোদর ভ্রাতা, অন্যান্যরা দলভুত্তু লোক, তাই তাহাদের সাক্ষ্য বিশ্বাস করা যায় না। পরিবারের কোন মহিলা বা নিরপেক্ষ প্রতিবেশী বা নিহত নাসিমার পিতা-মাতা এই মামলায় সাক্ষী হিসাবে পরীক্ষিত না হওয়ায় মামলাটি সন্দেহাতীত ভাবে প্রমানিত হয় নাই বলিয়া তিনি দাবী করেন।

একমাত্র আত্মীয়তা বা এক গোত্রীয়তার কারনে ঘটনার প্রত্যক্ষ সাক্ষীকে বিশ্বাস করা যাবে না, এইরতপ বত্তুব্য আইন সঙ্গত নয় ২ ও ৪নং সাক্ষী সহোদর ভ্রাতা, ঘটনাসহলটি এজাহারকারীর বসত বাড়ী, তাহারা সকলেই ঘটনা প্রত্যক্ষ্য করিয়াছে এবং বোমার আঘাতে আহত হইয়াছে বলিয়া দাবী করিয়াছে, অনুরতপ অবসহায় তাহারা মামলার সাক্ষী হইবে ইহাই স্বাভাবিক। ঘটনার অব্যবহিত পর প্রতিবেশীদের মধ্যে যাহারা ঘটনাসহলে আসিয়াছে এবং ঘটনা দেখিয়াছে, তাহারাও মামলার প্রয়োজনীয় সাক্ষী হিসাবে আদালতে সাক্ষ্য প্রদান করিয়াছে। এলাকার সকল প্রতিবেশীকে আদালতে সাক্ষ্য প্রদান করিতে হইবে এরতপ বত্তুব্যের আইনানুগ কোন ভিত্তি নাই, সাক্ষীগনের পরষ্পর সমর্থন যোগ্য সাক্ষ্য (Corroborative evidence) আদালতের নিকট বিশ্বাসযোগ্য মনে হইলে সে ক্ষেত্রে সাক্ষীর সংখ্যাও বিবেচ্য বিষয় নহে, ইহাই সাক্ষ্য আইনের প্রতিপাদ্য বিষয়।
নিহত নাসিমার পিতা-মাতা ঘটনাসহলে ছিল না, পরবর্তীকালে কন্যার মৃত্যুর সংবাদ শুনিয়াছে, মামলা প্রমানের ক্ষেত্রে তাহাদের সাক্ষ্য প্রদান অত্যাবশ্যকীয় নয়, তবে পিতা-মাতা হিসাবে তদমতকালে পুলিশ তাহাদের নাম সাক্ষীর তালিকায় সন্নিবেশীত করিয়া আদালতে সাক্ষী হিসাবে উপসহাপন করিলে অনুরতপ প্রশণ উথুাপিত হইত না। এইরতপ ক্ষেত্রে মামলার কোন ক্ষতি হইবে কিনা, বিষয়টি আইনানুগভাবে নিষ্পত্তির জন্য প্রাসঙ্গিক কোন আইন বা নজির আপীলকারী পক্ষ হইতে আদালতের সামনে উপসহাপন করা হয় নাই। কেবলমাত্র আত্মীয়তা এবং ঘটনার অপ্রত্যক্ষ সাক্ষী হিসাবে নাসিমার পিতা-মাতা সাক্ষ্য প্রদান না করায় মামলাটি সন্দেহাতীত ভাবে প্রমানিত হয় নাই এই কথা বলা যৌত্তিুক নহে। সেকারন বিজ্ঞ কৌশুলীর অনুরতপ বত্তুব্য বিবেচনা লওয়ার দাবী রাখে না।

এ প্রসঙ্গে In the case of Yogeshwar Gope -Vs-The State reported in 58 DLR (AD) 73 প্রাসঙ্গিক অংশ নিমেণ উদ্বৃত করা হইল;

“Only because of relationship of witnesses evidence cannot thrown away unless the evidence is found to be untrue or tainted by motive.”

এজাহারকারী সাক্ষ্য প্রদানকালে বলিয়াছে- “আসামী মন্টু প্রথমে যে বোমা নিক্ষেপ করে, উহাতে তাহার বাড়ীর কাজের মেয়ে নাসিমা তাহার মাথার পিছনে আঘাত পায় এবং হাতে যখম হয়। উত্তু বোমার আঘাতে নাসিমা ঘটনাসহলেই মারা যায়।” যাহা তিনি এজাহারে বলে নাই, ইহাকে Subsequent embellishement or departure from FIR বলিয়া আপীলকারী বিজ্ঞ কৌশূলী উল্লেখ করিয়া নিমেণাত্তু নজির উপসহাপন করিয়াছে;

In the case of Harun Sheikh @ Harunur Rashid and another Vs. The State reported in 8 BLD 425 (HCD) 1988 প্রাসঙ্গিক অংশ নিমেণ উদ্বৃত্ত করা হইল;

“The First Information Report, Ext. shows that the informant did not state anything in that report about recognition of the assailants by P.Ws.2-5 P.W.1, the informant however stated before the court that P.Ws.2-5 also recognised the assailants. The learned Advocate for the appellants submits that the subsequent story about recognition the assailants by P.Ws.2-5 was an embellishment. On this point he placed reliance on The State Vs. Basirullah reported in 16 D.L.R. 189 and Mafu alias Mafizuddin Gazi Vs. The State reported in 31 D.L.R. 16 in the later case it was held that the First Information Report being the earliest record of a case it has not musch importance. It enables the court to see what the prosecution case was when it was started and to check up any subsequent embellishment or any departure therefrom as the case preceeds through different stages. In the case of the State Vs. Basirullah the following observation was made:
“It is true that a first information report cannot be used to contracdict any witness other then the informant but the court can and should take notice of the earlies recorded statement with regard to the prosecution case in the context of the circumstances which made this particular report of vital importance in the assessment of prosecution evidence.” It was further observed: “The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two of such versions of the case is not only permissible, but imperative in the context of the circumstances set out above.”

আপীলকারীর বিজ্ঞ কৌশুলী রাষ্ট্র পক্ষের ১ নং সাক্ষী তাহারা সাক্ষ্যে এজাহারের (FIR) বর্ণনা হইতে সরিয়া আসার প্রশেণ নিমেণাত্তু নজির উপসহাপন করিয়াছেন, যাহা In the case of Md. Isahaque Ali and others -Vs- The State reported in 16 BLT 69 (HCD) 2008 প্রাসঙ্গিক অংশ উদ্বৃত হইল;

“Here the FIR case is that the informant Mozammel Hoque and other witnesses namely Ibrahim, Alauddin, Erfan and Mojibur saw that the accused persons caused injuries in the person of the victim Aftabuddin but in the trial they flatly denied that they did not see the occurrence. Here we find serious contradictions and inconsist-encies between the contents of FIR and evidence on record
It is true that FIR is not a substantive piece of evidence but as the earliest recorded version, the same may be looked into for the purpose of comparing the same with the statement made. Subsequently during trial by prosecution witnesses, any deviation from the FIR story makes the prosecution case boubtful casting serious doubt as to the credibility of prosecution witnesses. Here in this case, we find total departure of the FIR case from the evidence on record and thus has made the prosecution case shaky.”

উপরোত্তু নজির ২টি পর্যালোচনায় দেখা যায় উহার ঘটনা ও পারিপার্শ্বিকতা এই মামলার সাথে সামঞ্জস্যপূর্ন নয়। উল্লেখিত 16 BLT 69 (HCD) এর মতামত, “We find total departure of the FIR case from the evidence on record and thus has made the prosecution case shaky.” তর্কিত মামলার এজাহারের বত্তুব্যকে রাষ্ট্র পক্ষের ১, ৩, ৪ ও ৬নং সাক্ষীর প্রদত্ত সাক্ষ্য পরষ্পর সমর্থন করিয়া মামলা (corroborative evidence) প্রমান করিয়াছেন। এই ক্ষেত্রে ১নং সাক্ষীর বত্তুব্যকে এজাহার হইতে সরিয়া আসা (Total departure of the FIR) বলা বাসতব সঙ্গত নয়।

জনাব মোহাম্মদ আলী খান আরো প্রশণ তুলিয়াছে যে, বিজ্ঞ বিচারক কর্তৃক দন্ডিত আপীলকারীকে ফৌজদারী কার্যবিধির ৩৪২ ধারায় গ্রহনকৃত পরীক্ষা যথাযথ আইনী প্রত্রিুয়ায় সম্পন্ন করা হয় নাই। কেবল মাত্র দায়সারা ভাবে ইহা সম্পন্ন করিয়াছে, উত্তু বর্ণনার শেষাংশের প্রশেণ দন্ডিত আপীলকারী ওমর ফারতক ওরফে মন্টু নিজেকে নির্দোষ দাবী করিয়াছে, সাফাই সাক্ষী দিবে না এবং অন্য কোন কিছু বলিবে না মর্মে আদালতকে জানাইয়াছে তাহাও যথাযথ নয়।

তিনি তাহার বত্তুব্যের সমর্থনে কয়েকটি নজির উপসহাপন করিয়াছে, যাহা নিমেণ আলোচিত হইলঃ

প্রথমত; In the case of State Vs. Monu Meah reported in 6 BLC 402 (HCD) 2001 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“Referring to the statements as recorded under section 342 of the Code of Criminal Procedure the learned Advocate for the appellants has referred series of decisions to show that the statement have been made without the minimum compliance of section 342 of the Code of Criminal Procedure as neither substance of the evidence was put to the accused nor the incriminating material appearing were brought to their notices and therefore they have been seriously prejudiced in their defence. In this connection the learned Advocate for the appellants has referred to the case of State vs Badshah Mollah reported in 41 DLR 11 and the case of Mizazul Islam alias Dablu vs The State reported in 41 DLR (AD) 157. In the later case sandal which was the incriminating circumstance sought to connect the accused but since attention of the accused was not drawn to the sandal during his examination under section 342 of the Code of Criminal Procedure it was left out of consideration. Incriminating evidence or circumstances sought to be proved by the prosecution must be put to the accused during examination under section 342 of the Code of Criminal Procedure. In such view of the matter we hold that the examination of the appellants under section 342 of the Code of Criminal Procedure have been perfunctory and this has caused serious prejudice to the accused persons causing mis-carriage of justice.”

দ্বিতীয়ত; In the case of Nurul Islam alias Nur Islam Vs. The State reported in 18 BLD 695 (HCD) 1998 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“Let us now come to consider the soundness of the second branch of contention which is with respect to the examination of the accused-appellant under section 342 of the Code of Criminal Procedure. The fundamental principles underlying in section 342 of the Code of Criminal Procedure is that the accused should be afforded a full and fair opportunity for explaining the circumstances and the evidence against him. It is the duty of the court to put question to the accused properly and fairly bringing to his mind in clear and simple language the exact case he has to meet in each material point. Section 342 provides that attention of the accused persons be drawn to all incriminating evidence and circumst-ances appearing in the evidence against him and failure to do so vitiates the conviction.”

তৃতীয়ত; In the case of Mizazul Islam @ Dablu Vs. The State reported in 41 DLR (AD) 157 (1989) প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“The learned Judges of the High Court Division relied on the testimony of P.W.2 Ahsanul Kabir that the sandal was left behind by accused Dablu and concluded “Therefore, the recovery of the plastic sandal links appellant Dablu with the crime.” The learned Sessions Judge, however, omitted to mention the implication of the sandal. The trial Court proceeded relying on the confessional statement and noticed that in 342 statement the accused made no grievance about his torture alleged to have been made by the police for obtaining a confessional statement. While the trial court kept 342 Cr.P.C. in view it is unfortunate that one of the important items for linking up the accused with the crime, namely, the sandal was not at all put to the accused as a circumstance appearing in the case against him. In the similar case In Sarwan Singh Rattan Singh Vs. State of Pubjab reported in A.I.R 1957 (SC) 637, the Indian Supreme Court considered the implication of such omission. It was observed “Unfortunately, in his examination under section 342 of the Code, no question had been put to Sarwan Singh about these shoes. It is not unlikely that Sarwan Singh may have offered to demonstrate that the shoes did not fit in with his feet”. In any event, failure to give him an opportunity to explain the circumstances in his examination 342 jusfifies the defence argument that this circumstance should not be used against him.”

উপরে উল্লেখিত মামলার কাহিনী ভিন্ন হইলে গৃহীত সিদ্ধামত এই মামলার ক্ষেত্রে কতুটুকু প্রযোজ্য উহা বিবেচনার জন্য ফৌজদারী কার্য বিধির ৩৪২ ধারা মোতাবেক পরীক্ষিত বর্ণনা নিমেণ উদ্বৃত হইল;

“আপনার বিরতদ্ধে এই মর্মে সাক্ষ্য প্রমান আসিয়াছে যে, অত্র জেলার কোতয়ালী থানার অধীন নুরপুর গ্রামের পূবালী ব্যাংকের পূর্ব পার্শ্বে অত্র মামলার এজাহারকারী শেখ মোঃ আনোয়ার হোসেনের বসত বাড়ীতে গত ইং ১২/০৯/১৯৯৪ তারিখে ২২.০০ ঘটিকার সময় আপনারা বেআইনী জনতায় দলবদ্ধ হইয়া মারাত্মক অসএ, বোমা লইয়া পূর্ব শত্রততার জের হিসাবে খুন করিবার উদ্দেশ্যে বোমার বিস্ফোরন ঘটাইয়া এজাহারকারীর বাড়ীতে কাজের মেয়ে নাছিমার (১৬) মাথায় ও ঘাড়ে গুরততর জখম করেন এবং ঘটনাসহলেই সে মারা যায়। উত্তু বোমার আঘাতে ও আপনারা বাদীকে, তাহার ভ্রাতা ছরোয়ার এবং আসলামকে যখম করেন। সে কারনে আপনারা দন্ড বিধির ৩০২/৩৪ ধারা মোতাবেক ধর্তব্য ও শাসিতযোগ্য অপরাধ করিয়াছেন।
উপরোত্তু অভিযোগ প্রমানের জন্য প্রসিকিউশন পক্ষ মোট ৯ (নয়) জন সাক্ষীর সাক্ষ্য গ্রহন করিয়াছেন। আপনি আদালতের ডকে হাজির থাকিয়া সমসত সাক্ষীদের জবানবন্দি ও জেরা শ্রবন করিয়াছেন।
১।আপনার জবাব কি? উঃ- নির্দোষ।
২। সাফাই সাক্ষী দিবেন কি? উঃ- না।
৩। আর কিছু বলিবার আছে কি? উঃ- না।”

উল্লেখিত বর্ণনা (Statement) পর্যালোচনায় দেখা যায় আপীলকারীর বিরতদ্ধে সাক্ষীগন আদালতে কি বত্তুব্য রাখিয়াছেন, যাহাতে অভিযুত্তু ব্যত্তিুর দন্ডিত হওয়ার যথেষ্ট সম্ভাবনা আছে, তাহা সুনিদৃষ্টভাবে তাহাকে অবগত করা হয় নাই, বিজ্ঞ বিচারক কেবলমাত্র পরীক্ষিত সাক্ষীর সংখ্যা উল্লেখ করিয়াছে মাত্র। ইহাতে দন্ডিত আপীলকারী ন্যায় বিচার হইতে বঞ্চিত হইয়াছে। এই প্রসঙ্গে সুপ্রতিষ্ঠিত নীতি হইল; “No one should be condemned unheard. And it is utmost duty of the Court to give an opportunity to an accused to defence himself.”

অন্যদিকে দন্ডিত আপীলকারীকে প্রশণ করিলে তিনি নিজেকে নির্দোষ দাবী করিয়াছে এবং কোন সাফাই সাক্ষ্য প্রদান করিবে না এবং আর কিছু বলিবে না বলিয়া আদালতকে জানাইয়াছে।

বিজ্ঞ বিচারক যথাযথ প্রত্রিুয়ায় ফৌজদারী কার্য বিধির ৩৪২ ধারায় দন্ডিত আপীলকারীকে পরীক্ষ না করিয়া পদ্ধতিগত আইনের প্রয়োগের ক্ষেত্রে মারাতণক ভূল করিয়াছে, পক্ষামতরে সাক্ষ্য গ্রহনের সময় আপীলকারীর পক্ষে লওয়া এলিবাই প্রমানের জন্য এই পর্যায়ে সাফাই সাক্ষী (D.W.) প্রদান ও প্রয়োজনীয় কাগজ পত্র আদালতে উপসহাপন ও প্রমান করিবার সুযোগ সৃষ্টি হইলেও আপীলকারী তাহা গ্রহন করে নাই।

এই প্রসঙ্গে আপীলকারী পক্ষের বিজ্ঞ কৌশুলী কর্তৃক উপরে উল্লেখিত বিভিন্ন মামলার নজির সমূহের মর্মার্থ আমরা যথাযথ ভাবে অনুধাবন করিয়াছি। ঐ সকল মামলার ঘটনা ভিন্ন হইলেও সংশ্লিষ্ট বিষয়ে এই আদালত সহ সুপ্রীম কোর্টের আপীল বিভাগের দেওয়া মতামতের (observation) সাথে আমরা সম্মানের সাথে একমত পোষন করিতেছি, যাহা এই মামলায় সঠিক সিদ্ধামত গ্রহনের ক্ষেত্রে সহায়ক হইবে।

আপীলকারী পক্ষের বিজ্ঞ কৌঁশুলী জব্দকৃত আলামত ও নিহত নাসিমার ক্ষতসহানের রাসায়নিক পরীক্ষা (Chemical Examintaion), ময়না তদমতকারী মেডিক্যাল অফিসারের সাক্ষ্য, সর্বপরি বিশেষজ্ঞের মতামত (Expert Opinion) সম্পর্কে নিমেণ উল্লেখিত নজির সমূহ উপসহাপন করিয়াছে;

প্রথমত: In the case of Aminul Islam alias Ranga and others -Vs- The State reported in 5 BLC (AD) 179 (2000) প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“As regards conviction and sentence under section 3 of the Explosive Substance Act it appears that though the local witnesses deposed that appellant Mustafizur Rahman caused injury by using an explosive substance but this has not been supported by the evidence of PW 8-Dr Shah Md Akhtaruzzaman. He has not stated that injury No.2 was caused by any explosive substance. He stated that the injury could be caused probably by a chemical substance. From his evidence it cannot be found that PW 1 sustained injury by any explosive substance. The Investigating Officer also failed to get the injury and the shirt of PW.1 examined by an expert to find out whether PW 1 sustained injury by explosive substance. Unless that is proved it cannot be found that appellant No.2 Mustafizur Rahman alias Reza caused injury on the person of PW 1 by any explosive substance.
The trial Court as well as appellate court failed to appreciate the evidence properly and legally and came to an erroneous finding that these appellants are guilty of the charge under section 326 of the Penal Code and under section 3 of the Explosive Substance Act and, as such, it requires interference.
Accordingly, it is ordered that the appeal of appellant No.2 Mustafizur Rahaman alias Reza is allowed in part. His conviction and sentence under section 3 of the Explosive Substance Act is set aside and he is acquitted of the charge under this section but his conviction under section 148 of the Penal code is maintained and his conviction under section 326 is altered to conviction under secion 324 of the Penal code and he is sentenced to suffer imprisonment already undergone under sections 148/324 of the Penal Code.”

দ্বিতীয়ত: In the case of Mohammad Ali and another -Vs- The State represented by the Deputy Commissioner, Bakergonj reported in 1 BLC 164 (HCD) 1996, প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“Upon considering the overall evidence it appears to us that prosecution has hopelessly failed in bringing home the case beyond reasonable doubt. The alleged recovery of explosive substance cannot be established simply because the said material substance were not at all chemically tested by expert and furthermore the seizure list witness No.5 Sukur Howlader even did not know the contents of the polythene bag and thereby he could not support the prosecution case. In fact, no explosive substance was recovered from the possession of the accused appellants.
In the result the appeal is allowed and the order of conviction and sentence passed upon the accused appellants Mohammad Ali and Md. Anisur Rahman are here by set aside.”

তৃতীয়ত: In the case of Halim Sheikh and other -Vs- The State reported in 13 BLC 102 (HCD) 2005 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“In the present case no evidence has been adduced to show that the explosion of bomb was due to explosive substance act the nature of injury was such as likely to cause injury to endanger life or property. No chemical examination of the remains of the bomb or any other substance was conducted as admitted by P.W,14, the Investigating Officer of the case. Even the doctor who examined the victim for his injury, has stated categorically that he has not mentioned in his medical certificate report What chemical substances were present in the bombd that caused the injuries.
From the evidence of the doctor it is not possible to know whether chemical substance was at all present ill the injuries allegedly caused by a bomd. Not only that the explosive substance must be of such extent and quantity that is likely to endanger a person or property. In the present case no such test was made to ascertain that fact and without such test it cannot be said with certainty that the alleged occurrence comes within the mischief of Section 3 of the said Act.
The learned Advocate for the accused appellant has referred to the case of Aminul Islam @ Ranga and other Vs the State reported in 5 BLC (AD) 2000 179.

চতুর্থত: In the case of Zamir Ali (Md) and others -Vs- The State reported in 59 DLR 433 (HCD) 2007, প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“From a bare reading of the depositions of the PWs 1 to 5, it appears that the damage to property has been caused by the arson which has been set on the residential house through spraying petrol and igniting by match stick. The allegation which has been made as to the use of explosive substance only related to throwing of cocktail or petrol bomb, which is also lump allegation, which admittedly could not cause any fire or explosion of such a nature that endangered life or property. Therefore, we hold that even if it is taken that the convict/ appellant threw cocktail or petrol bomb that does not come under the mischief of section 3 of the Explosive Substances Act 1908, not to speak of that, no such evidence adduced by the PWs 3,4 and 5 which is reliable, upon which the conviction of the convict/appellant could be sustained. The doubt as has crept up from the testimony of PWs 2,3,4 and 5 must go as benefit to the convict/ appellants. Therefore, the arguments of the learned Deputy Attorney General fails and we found sufficient substance in the argument of the learned Advocate Mr. Subrata Chowdhury that the tribunal Judge did not consider the evidence on record in its true perpective. Upon meticulous examination of the aforesaid aspects of the case we are of the considerate view that the impugned judgment suffers from legal and factual infirmity as the same failed to consider that the prosecution could not bring home the charge under section 3 of the Explosive Substances Act 1908 beyond reasonable doubt against the convict-appellants for which the convict-appellants are entitled to the benefit of doubt.”

উল্লেখিত মামলার নজির সমূহের ঘটনাবলী তর্কিত মামলার সাথে মিল না হইলেও আলোচনা ও সিদ্ধামত অনুস্বরণ করা যাইতে পারে। জব্দকৃত আলামত যথাযথ ভাবে আদালতে প্রদর্শন ও সনাত্তু হইয়াছে, কিমও উহাতে বিষ্ফোরক দ্রব্যের অসিতত্ব ছিল কিনা বা নাসিমার শরীরের ক্ষতসহানের অংশ রাসায়নিক পরীক্ষার মাধ্যমে বিষ্ফোরক দ্রব্যের অসিতত্ব ছিল কিনা তাহা আইনানুগ প্রত্রিুয়ায় অনুসন্ধান করা হয় নাই।

উপরোমও ময়না তদমতকারী মেডিকেল অফিসার মৃতার শরীরে কোন্ ধরনের অসেএর দ্বারা আঘাত করা হইয়াছিল তাহা তিনি বলিতে পারে নাই। এইরতপ অবসহায় ন্যায় বিচারের স্বার্থে উপসহাপিত নজিরগুলি বিবেচনায় লওয়ার দাবী রাখে। বিশেষ করিয়া সুপ্রীম কোর্টের আপীল বিভাগের সিদ্ধামত এই আদালতের জন্য অবশ্য পালনীয় (Mandatory)।

বোমা বিষ্ফোরনের দ্বারা আঘাত সংঘটিত হইলে মানবদেহে কি ধরনের আঘাত দৃশ্যমান হইবে তাহা বিবেচনায় লওয়ার জন্য আপীলকারীর বিজ্ঞ কৌশুলী Medical Jurisprudence থেকে expart opinion উপসহাপন করিয়াছেন, যাহা নিমেণ উদ্বৃত হইল;

The injuries from explosions are mainly due to four factors viz (1) blast (2) flame or hot gases (3) flying missiles, and (4) asphyxia.
Postmortem appearances: When the body is badly shattered, there will be problems of identification. Apart from the injuries due to burns, flying missiles, falling debris, and the effects of the poisonous gases liberated by the explosive, the blast wave produces scattered foci of small haemorrhages in brain, lungs, bowel and mesentery. Passive hyperaemia and/or oedema cause serious secondary brain and lung lesions. Intracranial haemorrhage, contusion of the brain, heart and aortic injuries, pneumothorax, ruptured stomach and bowel, and bladder injuries have been described.
In the investigation of injuries or deaths as a result of explosive device, it is necessary to have good photographs and sketches of the scene. Complete body x-raying of the victims is imperative before the clothing is removed. Gragments of the bomb may be trapped within the clothing or the body tissues. Clothing, and foreign material removed from the clothes or from the body should be carefully preserved for laboratory examination.
Medicolegal Aspects: Injuries from explosions are mainly accidental. Homicidal cases infrequently occur. A time bomb may be left at some place to coincide with someone’s arrival at a particular time when it may explode. Alternatively, an impact bomb may be thrown or left at a venue of a meeting or nearby where it may explode as a result of friction, when some one walks over it or a car passes over it. When a material suspected to be an explosive is discovered, the area should at once be cordoned off and examination of the material including de-fusing undertaken by an expert.
The deliverate destruction of commercial aircrafts in flight has important medicolegal implications. The main difficulty facing the investi-gators is to distinguish sabotage from explosive decompression due to structural failure. In the event of sabotage being shown to be the cause of the accident, the responsibility for insurance passes from the “All Risk” insurers to those under writing “War Risks”

জনাব ফজলুর রহমান খান, বিজ্ঞ ডেপুট এ্যাটর্ণী জেনারেল আপীলকারী পক্ষের উপসহাপিত নজির সমূহ এই মামলার ক্ষেত্রে প্রযোজ্য নয় মর্মে তীব্র বিরোধিতা করিয়াছে, তিনি রাষ্ট্রপক্ষের মামলার সমর্থনে এবং আপীলকারী পক্ষের বিজ্ঞ কৌশুলীর উপসহাপিত বিষয় ভিত্তিক নজির সমূহের বিপরীতে বাংলাদেশ সহ উপমহাদেশের ৬টি মামলার নজির উপসহাপন করিয়াছে, যাহার আইনানুগ অবসহা বিবেচনায় লওয়ার জন্য নিমেণ পর্যায়ত্রুমে আলোচনা করা হইল;

ফৌজদারী কার্যবিধির ৩৪২ ধারা মোতাবেক দন্ডিত আপীলকারীকে আইনানুগ ভাবে পরীক্ষা করা হইয়াছে, মর্মে তাহার বত্তুব্যের সমর্থনে বিজ্ঞ ডেপুটি এ্যটর্ণী জেনারেলের উপসহাপিত নজির সমূহ উদ্বৃত হইল;

প্রথমত: In the case of Mohammad Shafi -Vs- The Crown reported in 6 DLR 104 (AD) West Pakistan 1954 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“Criminal Procedure Code (V of 1898), Ss. 342 and 537-Accused examined by committal Court on all relevant circumstances-before Sessions Court accused was not examined on circumstances appearing against him but on being asked admitted that his examinations as recorded by committal Court was correct and stated that he did not want to add anything-Whether it is a sufficient compliance with S.342 If not whether trial is vitiated.
Criminal Procedure Code (V fo 1898, Ss. 378 and 429-Case on different of opinions between two Judges referred to third Judge-Reference by third Judge on question of law to Full Bench-Competent.
Where the evidence in the Committal court and in Sessions Court is materially the same and the accused has been examined in the Committal Court upon all relevant circumstances appearing against him and in the Sessions Court the accused has replied to questions that his statement in the lower Court was correct and that he knew nothing about the incident.
Held,- This is not sufficient compliance with the provisions of section 342 of the Criminal Procedure Code.
Failure to comply with the provisions of section 342 in this case has not, however, vitiated the trial since not every contravention of section 342 constitutes a departure from the mode of the trial. It was, however, the duty of the appellate court to consider whether the contravention of the provisions of the section had occasioned a failure of justice.”

দ্বিতীয়ত: In the case of Md. Baharuddin Mia -Vs- The State reported in 9 DLR 209 (HCD) 1957, প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“Failure to examine the accused about his confession will not render the conviction illegal, if there is other evidence to support it.
The fact that the accused was not examined about his extra-judicial confession under section 342, Cr. P.Code, will not render the trial invalid, if there are other evidence besides the extra-judicial confession on record to support the conviction of the accused on the charge framed.”

তৃতীয়ত: In the case of Mezanur Rahaman and others -Vs- The State reported in 16 BLD 293 (AD) 1996 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“We have heard md. Nowab Ali, learned Advocate-on-Record, in support of the leave petition and gone through the impugned judgment carefully, Mr. Nowab Ali has not been able to make out any point of substance assailing the correctness or propriety of the impugned judgment. He has merely pointed out that during examination of the accused petitioners under section 342 of the Code of Criminal Procedure the confessional statements, which were the main evidence in the case, were not specifically mentioned in the summary of evidence and attention of the accused was not drawn thereto and as such the accused have been prejudiced. This argument, we find, was also made in the High Court Division which was rightly rejected upon good reasons. The learned Judges noticed that although the learned Sessions Judge did not mention anything about the confessional statements at the time of examination of the accused as aforesaid, they (the accused), in whose presence the evidence was recorded, in their reply stated that the confessions were obtained from them by the Police by torture and inducement. They were thus aware of their confessional statements which they had claimed to be involuntary and thus the omission on the part of the learned Sessions Judge to draw their attention to the confessional statements had neither caused any prejudice to them nor vitiated the trial. The learned Judges, therefore found no cogent reason to send the case on remand for a proper examination of the accused under section 342 CrPc.”

চতুর্থত: In the case of Mezanur Rahaman and others -Vs- The State reported in 2 BLC 27 (AD) 1997, প্রাসঙ্গিক অংশ উদ্বৃত করা হইল না, কারন সুপ্রীম কোর্টের আপীল বিভাগ হইতে নিষ্পত্তিকৃত এই মামলাটির প্রাসঙ্গিক অংশ উপরে উপসহাপিত হইয়াছে, 16 BLD 293 (AD) 1996 বিজ্ঞ ডেপুটি এ্যটর্ণী জেনারেল (D.A.G.) অসাবধানতাবসতঃ এই নজিরটি দুই বার উপসহাপন করিয়াছে।

বিজ্ঞ ডেপুটি এ্যটর্ণী জেনারেল (D.A.G.) কর্তৃক উপসহাপিত পাকিসহান এবং আমাদের সুপ্রীম কোর্টের আপীল ও হাইকোর্ট বিভাগের নজির নমূহের উল্লেখিত মামলার ঘটনা ও বিষয় বসতু এই মামলা হইতে ভিন্নতর এবং আদালতের মতামত (observation) ও গৃহীত নীতি তর্কিত মামলায় বিচারের ক্ষেত্রে রাষ্ট্র পক্ষের জন্য সহায়ক না হইলেও উল্লেখিত নজির সমূহে আমাদের জ্ঞানের পরিধি বিসতৃতি লাভ করিয়াছে বলা যায়, তর্কিত মামলায় ঐ সকল নজির অনুস্বরন করার সুযোগ নাই।

রাসায়নিক পরীক্ষার (Chemical test) বিষয়ে রাষ্ট্র পক্ষে ডেপুটি এ্যটর্ণী জেনারেল (D.A.G.) কর্তৃক উপসহাপিত নজির নিমণরতপ;

প্রথমত: In the case of The State -Vs- Altazur Rahaman reported in 2 BCR 264 (AD) 1982 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“The judgment of the High Court Division in setting aside the judgment of the trial Court does not appear to be based on cogent reasons liquid on evidence. Absence of chemical examination of the contained in the bottle produced before the Thana and viscera of the deceased, did not in any way render the trial defective. In the face of sufficient evidence to land support to the prosecution case chemical examination as stated by the learned Judge was not at al necessary. In our opinion the prosecution case has been proved, that Parul was killed by throttling by her husband respondent No.1. In that view of the matter the judgment of the High Court Division reversing that of the trial Court is against the weight of the evidence, and as such cannot be sustained.”

দ্বিতীয়ত: In the case of Gamdoor Singh -Vs- The State reported in 1981 CRL. LJ. 1912 (Criminal Law Jurnal) মামলাটি ভারতের পাঞ্জাব এবং হরিয়ানা রাজ্যের হাইকোর্টে নিষ্পত্তি হইয়াছে, প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“The definition as reproduced above is inclusive and by no means exhaustive. Any contrivance by itself, or with the help of another, which would go to make an explosive substance would be covered by the definition. Thus the hand grenades recovered from the possession of the petitioner would be explosive substances within the meaning of the definition despite the fact that in order to explode them, the igniter set had to be fitted to such types. It is noteworthy that the Deputy Controller of Explosives in his report, Exhibit P.5, opined that each of the hand grenades was capable of endangering life on explosion after being suitably initiated with the igniter set or otherwise. There thus is no substance in the first contention raised which merits rejection.”

রাসায়নিক পরীক্ষা সংত্রুামত রাষ্ট্র পক্ষের প্রথম নজিরটি এই মামলার জন্য প্রযোজ্য নয়, কারন উহা একটি সএী হত্যা মামলা ছিল, স্বামী কর্তৃক শ্বাস রোধ করিয়া তাহার সএীকে হত্যা করার বিষয়টি সাক্ষ্য প্রমানে প্রতিষ্ঠিত হওয়ায় ঘটনার অব্যবহিত পরে (subsequent) বিষ প্রয়োগে নিহত হওয়া সম্পর্কে সুপ্রীম কোর্টের আপীল বিভাগ মমতব্য করিয়াছে যে, “In the face of sufficient evidence to land support to the prosecution case chemical examinition as stated by the learned Judge was not at all necessary. In our opinion the prosecution case has been proved the Parul was killed by throattling by her husband.” সুতরাং তর্কিত মামলার ক্ষেত্রে নজিরটি প্রাসঙ্গিক নয়।

Chemical Explosive Substance এর সংত্রুামেত ভারতের পাঞ্চাব ও হরিয়ানা প্রদেশের হাইকোর্ট মমতব্য করিয়াছেন যে, “Thus the hand grenades recovered from the possession of the petitioner would be explosive substances within the meaning of the defination despite the fact that in order to exploded them, the igmiter set had to be filled to such typer.” তর্কিত মামলায় ব্যবহদত হাত বোমাটি প্রসতুত সহানীয় জর্দার কৌটায়, সেকারনে মামলাটি প্রমানের জন্য উত্তু জর্দার কৌটায় প্রকৃত পক্ষে বিষ্ফোরক দ্রব্য (Explosive Substances) ছিল কিনা, তাহা নির্নয়ের জন্য রাসায়নিক পরীক্ষা (Chemical Examination) সহ বিশেষজ্ঞ মতামত (Expert opinion) অপরিহার্য। যাহা তর্কিত মামলায় রাষ্ট্র পক্ষ না করিয়া তদমতকারী কর্মকর্তা গুরততর উদাসীনতার পরিচয় দিয়াছে।

জনাব ইউসুফ মাহমুদ মোর্শেদ, বিজ্ঞ সহকারী এ্যাটর্ণী জেনারেল রাষ্ট্র পক্ষের মামলা সমর্থনে Subsequent embelishment or departure of the FIR প্রশেণ এই আদালতে ২টি নজির এবং বোমার আঘাতে মানব দেহে কোন ধরনের আঘাতের চিহু পরিলক্ষিত হয় তাহা এই মামলায় রাষ্ট্র পক্ষে বিবেচনার জন্য Modis Medical Jurisprudence and Toxicology গ্রমেহর প্রাসঙ্গিক অংশ উপসহাপন করিয়াছে;

প্রথমত: In the case of Al-Amin and 5 others -Vs- the State reported in 51 DLR 154 (HCD) 1999 প্রাসঙ্গিক অংশ উদ্বৃত হইল;
“In this context it must be reme-mbered that the First Information Report is not the encyclopaedia. It is neither the beginning nor the ending of every case. It is only a complaint to get the law or order in motion. It is only an initiative to move the machinery and to investigate into a cognizable offence. It is only at the investigation stage that all the details can be gathered and filled up. The First Information Report, thus, cannot be treated as the first and the last word of a prosecution case. (Emphasis ours). So, to reject the case of commission of rape upon victim A on the ground of non-mentioning the fact First Information report is to record an inadequate appreciation of the criminal investigation and weight is to attached to the legal evidence in the case itself. Legal evidence is that evidence which is adduced by a witness before the Court at the time of trial and not the statement made in the First Information Report. (Emphasis ours). P.W.2 categorically stated that Nantu, Mithun, Reaz, Biplob and Al Amin committed rape upon her. The conduct of the Victime A in not laying the Report of the traumatic experience she undergone immediately after the incident and not disclosing the commission of rape in the said Report taking into considera-tion of honour and dignity of herself and herfamily appears to be most natural and the same is the normal course of human conduct. It is only at the investigation stage commission of rape had been disclosed by making statement recorded under section 164 of the Code of Criminal Procedure and the matter is in accord with the natural human conduct of an unmarried female. The Bishes Adalat was not justified in discarding the prosecution for victim As non-disclosure of the Commission of rape upon her.”

দ্বিতীয়ত: In the case of Al-Amin with 5 others appellant in several Criminal Appeal reported in 19 BLD (HCD) 1999.

প্রাসঙ্গিক অংশ উদ্বৃত করা হইল না, কারন উল্লেখিত মামলাটি ২টি ল’ জার্নালে একই নজির প্রকাশিত হওয়ায় বিজ্ঞ সহকারী এ্যাটর্ণী জেনারেল অসাবধান বসত: উহা আদালতে উপসহাপন করিয়াছে।

প্রথমত: উল্লেখিত নজিরে আদালতের অভিমত এই যে, First Information Report is not the encyclopaedia. It is neither the beginning nor the ending of every case. It is only a complaint to get the law or order in motion. It is only an initiative to move the machinery and to investigate into a cognizable offence. It is only at the investigation stage that all the details can be gathered and filled up. The First Information Report, thus, cannot be treated as the first and the last word of a prosecution case. মামলার ঘটনা ভিন্ন হইলেও উপরোত্তু সিদ্ধামেতর মৌলিক নীতি তর্কিত মামলার ক্ষেত্রে প্রাসঙ্গিক, সেকারন ন্যায় বিচারের স্বার্থে ইহা গ্রহন যোগ্য।

বোমা বিষ্ফোরনে আঘাত সংঘটিত হইলে মানবদেহে কোন ধরনের আঘাত দৃশ্যমান হইবে তাহা বিবেচনার জন্য বিজ্ঞ সহকারী এ্যাটর্ণী জেনারেল Modis Medical Jurisprudence and Toxicology গ্রমেহর ৫৪৭ পৃষ্ঠায় প্রকাশিত Expart opinion নিমেণ উদ্বৃত হইল;

“Post mortem- The primary role of the medical investigation of explosive trauma is to document the injuries and collect evidence that will assist with the investigation of the nature and source of explosion. The examination and documentation of injuries sustained by victims of explosions is essentially similar, whether or not the victim dies.
Even though, the causes of the death appear to be explosion, it should be ascertained to rule out ante-mortem death.
The post-mortem examination in cases of explosive injury can be divided into six separate phases:

identification;
radiological examination;
collection of surface evidence;
eocumentation of injuries;
identification of natural disease; and
collection of internal samples.

During post-mortem, the non-human tissue should be identified and discarded. A naked-eye examination or an antigen-antibody reaction can give the difference. Pieces of scalp, skin, jaw, joints, spine, pelvis, hands of feet can be helpful to establish the number of victims. The hair on the scalp is compared according to colour, length and texture. The pieces of skin are separated according to colour. The joints are identified and separated into right and left. The hands and feet compared for size, general configuration and skin colour and texture. Examination of visceral organs for uterine cervixes, prostate glands, external genitilia can help to fix the sex and the number of victims. Clothing of the victims, fingerprinting, dentition and dentures, scars, tattoos, deformities, X-rays of the victims that show old fractures, bony changes and stones help in the identification of the bodies.
X-rays also help to detect radiopaque objects that might facilitate in tracing the manufactures of the bomb. Further, it will assist in detecting lethal missiles not visible from the surface. In victims who have been in close proximity to the explosive device, small fragments of trace metal that had formed part of the bomb mechanism can be identified and recovered. X-ray examination may also reveal evidence of other injuries such as gun shot wounds sustained prior to the explosion, since in many cases of terrorist explosions, the victims may have been murdered or tortured prior to death.
All injuries can be classified into five general groups.

blunt impact injuries;
incised wounds;
penetrating injuries;
burns;
fractures.”

এজাহার, চার্জসীট, ময়না তদমত রিপোর্ট, পরীক্ষিত সাক্ষ্য, ফৌজদারী কার্যবিধির ৩৪২ ধারা মোতাবেক আপীলকারীকে পরীক্ষা, নিমণ আদালতের তর্কিত রায় এবং উভয় পক্ষের বিজ্ঞ আইনজীবীগনের বত্তুব্যের স্বপক্ষে উপসহাপিত বিষয় ভিত্তিক উচ্চ আদালতের নজির সমূহ আমরা নিবিড় ভাবে পর্যবেক্ষন ও পর্যালোচনা করিয়াছি।

আপীলকারী পক্ষের বিজ্ঞ আইনজীবী এজাহার, চার্জসীট এবং তর্কিত রায়ে দন্ডিত আসামীর সংখ্যা নিয়ে প্রশণ তুলিয়া ইহাকে মিথ্যা মামলা বলিয়া অবিহিত করিয়াছে, সংখ্যার তারতম্যের কারনে দন্ডিত আসামী অভিযোগের দায় হইতে মুত্তিু পাবে কিনা সে মর্মে তিনি কোন আইন বা নজির উপসহাপন করেন নাই। নথি দৃষ্টে একথা বলা যায় যে, যথাযথ আইনী প্রত্রিুয়ায় তদমতকারী কর্মকর্তা মামলাটির তদমত কার্য সম্পাদন করিতে যথেষ্ট অবহেলা ও দায়ীত্বহীনতার পরিচয় দিয়াছে। বোমা বিষ্ফোরন সংঘটিত হইলে বা কেহ আহত বা নিহত হইলে মামলাটি সংশ্লিষ্ট আইনে প্রমানের জন্য জব্দকৃত আলামত অবশ্যই রাসায়নিক পরীক্ষা (Chemical test) করিয়া বিশেষজ্ঞের মতামত (Expert opinion) সংগ্রহ করা তদমতকারী কর্মকর্তার (Investigating Officer) দাীয়ত্ব ছিল, বিষ্ফোরক দ্রব্যের (Explosive substance) মামলা প্রমানের জন্য ইহা আইনানুগভাবে অবশ্য পালনীয় কার্য (Mandatory Provisions of Law) এ প্রসঙ্গে উপসহাপিত সুপ্রীম কোর্টের আপীল বিভাগের সিদ্ধামত যাহা 5 BLC (AD) 179 (2000) প্রকাশিত হইয়াছে উহা আমাদের জন্য অবশ্য পালনীয় নির্দেশনা। সেকারন ইহা দৃঢ়তার সাথে বলা যায় পুলিশ কর্মকর্তাগনের ইচ্ছাকৃত বা অজ্ঞতা জনিত কারনে মামলাটির অপুরনীয় ক্ষতি হইয়াছে, যাহার দায়ভার তদমতকারী কর্মকর্তা কোনভাবেই এড়াইতে পারে না।

ময়নাতদমত রিপোর্টে দেখা যায়, সংশ্লিষ্ট ডাত্তুার নিহত নাসিমার শরীরে আঘাতের চিহুগুলি কোন ধরনের অসএ দ্বারা সংঘটিত হইয়াছে, তিনি তাহা উল্লেখ করে নাই। অনুরতপ অবসহায় তদমতকারী কর্মকর্তা মৃতার শরীরের যখম গুলি কোন জাতের অসএ দ্বারা সংঘটিত হইয়াছে তাহা চিঠি দ্বারা (স্মারক মারফত) জানিতে চাহিলে সংশ্লিষ্ট ডাত্তুারের ব্যাখ্যাও সমেতাষজনক নয়। তিনি রেডিওলোজিষ্টের মাধ্যমে মতামত দিয়াছেন যে, উল্লেখিত জখমের ভিতর কোন স্পিলিন্ট বা বিষ্ফোরক জাতীয় দ্রব্য পাওয়া যায় নাই।

প্রত্যক্ষ্য দেখা সাক্ষী হিসেবে ১, ৩, ৪ ও ৬ নং সাক্ষী একে অপরকে জোরালো ভাবে সমর্থন করিয়া সাক্ষ্য প্রদান করিয়াছে। ৫ ও ৭ নং সাক্ষী বোমা বিষ্ফোরনের শব্দ শুনিয়া অব্যবহিত পরে ঘটনাসহলে আসিয়া নাসিমাকে মৃত দেখিয়াছে এবং এজাহারকারী (Informant) সহ অন্যান্যদের নিকট ঘটনা শুনিয়াছে। পারিপার্শ্বিক সাক্ষ্য হিসাবে তাহারা রাষ্ট্র পক্ষের মামলা সমর্থন করিয়া আদালতে সাক্ষ্য প্রদান করিয়াছে। ৮ ও ৯ নং সাক্ষী যথাত্রুমে ডাত্তুার ও তদমতকারী কর্মকর্তা, নাসিমার মৃত্যু আঘাত জনিত কারনে হইয়াছে মর্মে তাহারা ঘটনার প্রাথমিক সত্যতা প্রমান করিয়াছে। পক্ষামতরে ৭ নং সাক্ষী জেরায় বলিয়াছে “নাসিমার মায়ের দায়েরকৃত হত্যা মামলায় তিনি ও তাহার পুত্রগন আসামী ছিল বলিয়া শুনিয়াছেন।” এই সাক্ষী অনুরতপ সাজেশন স্বীকার করায় হত্যা মামলা সম্পর্কে সামান্যতম হইলেও সন্দেহের সৃষ্টি হওয়া অস্বাভাবিক নয়।

ফৌজদারী কার্যবিধির ৩৪২ ধারায় বিজ্ঞ বিচারক দন্ডিত আপীলকারীকে পরীক্ষা করিয়াছে, উত্তু পরীক্ষিত বর্ণনা (Statement) অত্র রায়ের পূর্বাংশে আমরা পরীক্ষা ও পর্যালোচনা করিয়াছি। যাহাতে সংশ্লিষ্ট বিধিবদ্ধ আইনের নির্দেশনা যথাযত ভাবে প্রতিপালন করা হয় নাই। আপীলকারী পক্ষের উপসহাপিত সুপ্রীম কোর্টের আপীল বিভাগের সিদ্ধামত এই আদালতের জন্য অবশ্য পালনীয় (Mandatory)। নিমণ আদালতে বিজ্ঞ বিচারকের অনুরতপ ভূলের সুবিধা আপীলকারীর অনুকুলে মিমাংসীত হইবে ইহা উচ্চ আদালতের নির্দেশনা।

পূর্ব শত্রততার বিষয়টি উভয় পক্ষে সমান ভাবে বিবেচনা করা যায়। কারন পূর্ব শত্রততার কারনে প্রতিপক্ষের বিরতদ্ধে যেমন মিথ্যা মামলা হইতে পারে। অপর দিকে সহায়-সম্পত্তি লইয়া পূর্ব বিরোধের কারনে প্রতিপক্ষ দ্বারা এজাহারকারীর বাড়ীতে বোমা হামলার বিষয় উড়িয়ে দেওয়া যায় না। সেকারন পূর্ব বিরোধের প্রশণটি বিবেচনায় না লইলেও এই মামলার ফলাফলের ক্ষেত্রে কোন বিশেষ প্রভাব পড়িবে না।

নাসিমার মৃত্যু সংত্রুামেত তাহার মা’ বাদী হইয়া দায়েরকৃত পৃথক হত্যা মামলাটি এই মামলায় বিবেচনা করার আইনানুগ সুযোগ সৃষ্টি হয় নাই। কারন আপীলকারী পক্ষ হইতে সাফাই সাক্ষ্য (D.W.) প্রদান বা কথিত হত্যা মামলার সহিমোহরী নকল (Certified Copy) এই মামলায় বিবেচনার জন্য সুযোগ সৃষ্টি হওয়া সত্বেও আপীলকারী বিচারিক আদালতে উহা উপসহাপন করে নাই।

বোমার আঘাতে নাসিমার মৃত্যু হইয়াছে, এইরতপ কোন তথ্য ময়না তদমত রিপোর্টে উল্লেখ করা বা বোমা বিষ্ফোরনে নিহত হইলে বিষ্ফোরক দ্রব্যের রাসায়নিক পরীক্ষার প্রয়োজন নেই মর্মে রাষ্ট্র পক্ষের বিজ্ঞ ডেপুটি এ্যাটর্ণী জেনারেলের এইরতপ বত্তুব্যের আইনানুগ কোন ভিত্তি নাই। পারষ্পরিক সমর্থনযোগ্য সাক্ষ্য (Corroborative evidence) দ্বারা মামলাটির সত্যতা সম্পর্কে দেয়া বত্তুব্যের যথার্থতা আছে এবং ইহা গ্রহন যোগ্য তবে ফৌজদারী কার্যবিধির ৩৪২ ধারায় দন্ডিত আপীলকারীকে সঠিকভাবে পরীক্ষা করা হইয়াছে, রাষ্ট্র পক্ষের এইরতপ বত্তুব্য গ্রহন যোগ্য নয়। ঐ বিষয়ে উপসহাপিত নজির সমূহও এই মামলার ক্ষেত্রে প্রযোজ্য নয়।

তর্কিত রায়ে বিজ্ঞ বিচারক সংশ্লিষ্ট বিধিবদ্ধ আইনের মর্মার্থ সঠিকভাবে উপলব্ধি না করিয়া তাহার স্বপ্রনোদিত ব্যাখ্যা উত্তু রায়ের গ্রহনযোগ্যতা নিয়ে অহেতুক প্রশেণর জন্ম দিয়াছে। বিজ্ঞ বিচারকের বিচারক সূলভ মনোভাব লইয়া বিবেচনা করিয়া সংশ্লিষ্ট আইনের আলোকে মামলাটির তদমতকালীন ত্রতটি সংশোধনের ব্যবসহা গ্রহন করিতে পারিত, যাহা তিনি করে নাই। তর্কিত রায় প্রদানের সময় তিনি মামলা প্রমানের গুরতত্বপূর্ন ও জরতরী উপাদান সমূহ দৃষ্টিগোচরে আনয়ন না করিয়া মামলাটি সন্দেহাতীত ভাবে প্রমানের ক্ষেত্রে প্রশণবিদ্ধ করিয়াছে।

বিষ্ফোরক দ্রব্য (Explosive Substacne) রাসায়নিক পরীক্ষা (Chemical test) করিয়া বিশেষজ্ঞ মতামত (Expert opinion) গ্রহন না করিয়া বোমা বিষ্ফোরনে হত্যার বিষয়ে যে প্রশণ সৃষ্টি হইয়াছে, তাহা ময়না তদমতকারী ডাত্তুারের মতামতে সুপ্রতিষ্ঠিত হইয়াছে। অভিযুত্তু আসামীর বিরতদ্ধে গঠিত অভিযোগ প্রমানে সন্দেহের সৃষ্টি হইলে তাহার ফলাফল (Benefit of doubt) আইনানুগ ভাবে আপীলকারীর পক্ষে নিষ্পত্তি হইবে। ইহাই সুপ্রীম কোর্টের আপীল বিভাগের প্রতিষ্ঠিত নীতি।

এই প্রসঙ্গে সুপ্রীম কোর্টের আপীল বিভাগ নূরতল ইসলাম এবং অন্যান্য বনাম রাষ্ট্র মামলায় সিদ্ধামত যাহা 10 BCR (AD) 339 (1990) এ প্রকাশিত হইয়াছে। ফৌজদারী মামলার ক্ষেত্রে আমাদের সর্বোচ্চ আদালত Benefit of doubt দন্ডিত আপীলকারী পক্ষে মিমাংসা করিয়াছে, যাহা এই আদালতের জন্য অবশ্য পালনীয় (Mandatory) হিসাবে বিবেচিত হইবে।

নিহত নাসিমার শরীরে আঘাতের চিহু সম্পর্কে আপীলকারী পক্ষের বিজ্ঞ কৌশুলী এবং রাষ্ট্র পক্ষের বিজ্ঞ সহকারী এ্যাটর্ণী জেনারেল ২টি পৃথক বিশেষজ্ঞ মতামত (Expert opinion) উপসহাপন করিয়াছে। উত্তু মতামত (opinion) ২টি আমরা পর্যালোচনা করিয়া দেখিলাম বিশেষজ্ঞ (Expert) দ্বয় এই ক্ষেত্রে ভিন্ন ভিন্ন মতামত প্রদান করিয়াছে। অনুরতপ অবসহায় ইহা অত্র মামলায় বিবেচনায় না লইলেও সঠিক সিদ্ধামত গ্রহন করিতে কোন প্রতিবন্ধকতার সৃষ্টি হইবে না।

নিমণ আদালতের নথিতে সংরক্ষিত প্রাসঙ্গিক কাগজপত্র উভয় পক্ষের বওুব্য এবং পক্ষগনের উপসহাপিত নজির সমুহ পর্যালোচনা করিয়া আমরা এই মর্মে একমত পোষন করিয়াছি যে, বিজ্ঞ অতিরিওু দায়রা জজ, ৩য় আদালত, যশোর তর্কিত হত্যা মামলাটি বোমা বিস্ফোরনে সংঘটিত হওয়ায় উহার তথ্য-উপাত্ত, গুরতত্বপূর্ন উপাদান এবং আইনানুগ ফলাফল মনোযোগের সহিত আইনানুগ ভাবে মুল্যায়ন না করিয়া ভাবাবেগের বসবর্তিতে ভ্রমাত্মক সিদ্ধামেত উপনিত হইয়া আপীলকারীকে উল্লেখিত দন্ড ও সাজা প্রদান করিয়াছে। যাহা প্রচলিত আইন ও প্রতিষ্ঠিত নজির সমূহ কোনভাবেই সমর্থন করে না। সেকারন সার্বিক অবসহা বিবেচনায় মামলাটি সন্দেহাতীত ভাবে প্রমানিত না হওয়ায় নিমণ আদালত কর্তৃক প্রদত্ত দন্ড ও সাজার রায় রক্ষনীয় নয়।

এমতাবসহায় আমরা মনে করি আপীলটি মঞ্জুর করার জন্য আইনানুগ ও যথেষ্ট যুওিু সঙ্গত হেতুবাদ বিদ্যমান রহিয়াছে।

অতএব ন্যায় বিচারের স্বাথে অত্র ফৌজদারী আপীলটি মঞ্জুর করা হইল।

বিজ্ঞ অতিরিত্তু দায়রা জজ, ৩য় আদালত, যশোর কর্তৃক দায়রা মামলা নং-৬৮/১৯৯৬ যাহা কতোয়ালী থানার মামলা নং-২৪ তারিখ ১৩/০৯/১৯৯৪ এবং জি,আর, নং-১০৭৩/১৯৯৪ ধারা ৩০২/৩৪ দন্ডবিধি হহ~তে উদ্ভূত, উহাতে আপীলকারী ওমর ফারতক ওরফে মন্টু, পিতা-সানাউল্লা পাটোয়ারী ওরফে সানাউল্লা, সাং-নূরপুর, থানা-কতোয়ালী, জেলা-যশোর কে গত ইংরেজী ১৭/০৫/১৯৯৯ তারিখে প্রদত্ত দন্ড ও সাজার রায় রদ-রহিত করা হইল।

আপীলকারী ওমর ফারতক ওরফে মন্টুকে অত্র মামলার দায় হইতে অব্যহতির (খালাস) আদেশ দেওয়া হইল।

আপীলকারীর জামিনের মুচলেকা প্রত্যাহার করা হইল।

এই রায়ের কপি সহ| নিমণ আদালতের নথি এই মু‎হুর্তে সংশ্লিষ্ট আদালতে প্রেরনের জন্য অফিসকে আদেশ দেওয়া হইল।

Ed.

One Bank Ltd. Vs. Chaya Developer (Pvt.) Ltd. & another, 4 LNJ AD (2015) 292

Case No: Civil Appeal No. 175-176 of 2011

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mahmudul Islam,,

Citation: 4 LNJ AD (2015) 292

Case Year: 2015

Appellant: One Bank Ltd.

Respondent: Chaya Developer (Pvt.) Ltd. & another

Subject: Artha Rin,

Delivery Date: 2015-10-23

APPELLATE DIVISION
(CIVIL)

Md. Muzammel Hossain, CJ.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Hasan Foez Siddique, J
AHM Shamsuddin Chowdhury, J.

Judgment on
23.10.2015

One Bank Ltd.
... Appellant
(In C.a. No. 175 of 2011)
Versus
Chaya Developer (Pvt.) Ltd. and others
. . . Respondents
And
Chaya Developer (Pvt) Ltd. and others
. . . Appellant
(In C. A. No. 176 of 2011)
Versus
Government of People’s Republic of Bangladesh and others.
. . . Respondents

Artha Rin Adalat Ain (VIII of 2003)
Section 4(5)(7)
Regarding the appointment of Judges of the Artha Rin Adalat, Section 4(5) of the Ain envisages that the Government shall in consultation with the Supreme Court, appoint Judges of the Artha Rin Adalats from amongst the Joint District Judges and the Joint District Judges appointed in the aforesaid manner shall not be able to adjudicate any other civil or criminal cases except the Artha Rin Suit. Section 4(7) of the Ain provides that if a Judge of the Artha Rin Adalat has temporarily been unable to perform his duty owing to leave, illness or any other reason then the District Judge may appoint a Joint District Judge under his jurisdiction and control to perform the functions and duties of a Judge of Artha Rin Adalat for the time being on full time basis or in addition to his own duties. . . . (12)

Artha Rin Adatal Ain (VIII of 2003)
Sections 6(5) and 26
Code of Civil Procedure (V of 1908)
Order I, Rule 10
Section 26 provides that as regards execution of decree passed under this Ain the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain. In the instant case, the provisions of Order 1 Rule 10 of the Code are not in conflict with those of the Ain, 2003 inasmuch as the former is very much in conformity with the provisions of section 6(5) of the Ain and as such the former is applicable in the instant suit. . . . (12)

Artha Rin Adatal Ain (VIII of 2003)
Section 4 and 4(7)
From the scheme of the Artha Rin Adalat Ain, 2003 and the provisions of Section 4 of the Ain it is clear that the only persons legally competent to be appointed to act as Judges of the Artha Rin Adalat are Joint District Judges. In view of Section 4 (7) of the Ain even those who are performing the functions of Judges–in-Charge of the Artha Rin Adalat shall have to be appointed from amongst the Joint District Judges. Therefore, the High Court Division rightly set aside those orders which were passed by the learned Judge-in-Charge who was holding the rank of Additional District Judge but part of the impugned Order No. 1 dated 23.01.2008 relating to the registration of the suit was kept valid as that was an admini-strative order. The learned Additional District Judge has no jurisdiction to pass any judicial order in Artha Rin Suit in view of the provisions of Section 4 of the Artha Rin Adalat Ain, 2003. . . . (13)

Artha Rin Adatal Ain (VIII of 2003)
Section 4(4)(7)
The learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub-Sections (4) and (7) of Section 4 of the said Ain, 2003. In view of the above observations and findings we are of the view that the impugned order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being Coram non judice has been passed without lawful authority and jurisdiction. . . . (13)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Who is a necessary party and a proper party and distinction between them—The established principle of law is that either a necessary party or a proper party may be added in the suit. A necessary party is one in whose absence no effective decree can be passed. Whereas a proper party is one whose presence is not necessary for passing an effective decree. The presence of proper party facilities more effectual and complete adjudication of all the disputes and avoid multiplicity of proceeding between the parties. A proper party is one who is legally interested in the suit. A legally interested party is one whose rights has been adversely affected by any order of a court. It appears that order No.1 dated 23.01.2008 and order No. 13 dated 6.4.2008 of the Artha Rin Suit were passed for attachment of the property in question before judgment and order No. 33 dated 11-09-2008 and order No. 36 dated 18-09-2009 were passed restraining the appellant in Civil Appeal No. 176 of 2012 by an order of temporary injunction from carrying on with any construction work on the property in question which have adversely affected the rights of the appellant as a developer. In that view of the matters the appellant- developer being a proper party is entitled to be added as a party to the said Suit and as such Order No. 49 dated 19.1.2009 is illegal and without lawful authority for not allowing it to be added as a party in the suit. . . . (14)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Artha Rin Adatal Ain (VIII of 2003)
Section 6(5)
The High Court Division while making the Rule absolute upon setting aside the order No., 49 dated 19.05.2009 committed illegality by not allowing the appellant-developer to be added as a party in the suit under Order 1 Rule 10 of the Code of Civil Procedure inasmuch as Section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the aforesaid Order. In that view of the matter the appellant-developer is entitled to be added as a party in the suit in the category of defendant. Therefore we find merit in Civil Appeal No. 176 of 2011.... (14)

Code of Civil Procedure (V of 1908)
Order I, Rule 10
Artha Rin Adatal Ain (VIII of 2003)
Section 6(5)
An adversely affected person can be added as defendant in Artha Rin suit--It appears that the appellant-developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute insofar as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant. There is no provision in the Artha Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. . . . (15)

For the Appellant (In C.a. No. 175 of 2011): Mr. Kamal-Ul- Alam, Senior Advocate, instructed by Mr. Shamul Alam, Advocate-on-Record.
For the Appellant (In C.a. No. 176 of 2011): Mr. Mahmudul Islam, Senior Advocate, instructed by Ms.Sufia Ahamed, Advocate-on-Record.
For the Respondent (In C.a. No. 175 of 2011): Mr. Mahmudul Islam, Senior Advocate, instructed by Ms.Sufia Ahamed, Advocate-on-Record.
For the Respondent (In C.a. No. 176 of 2011): Mr. Kamal-Ul- Alam, Senior Advocate, instructed by Mr. Shamul Alam, Advocate-on-Record.

Civil Appeal No. 175—176 of 2011

JUDGMENT

Md. Muzammel Hossain, CJ:

These appeals by leave are directed against the judgment and order dated 19.01.11 passed by a Division Bench of the High Court Division in Writ Petition no. 1376 of 2009 making the Rule absolute and thereby setting aside Part of Order No. 1 dated 23-01-2008 except the registration of the Title Suit No. 7 of 2008, Order Nos. 13 dated 06-04-2008 and 49 dated 19-01-2009 passed by the Artha Rin Adalat, 1^st Court, Chittagong in Artha Rin Suit No. 7 of 2008.

The facts for disposal of these appeals, in short, are that the respondent No. 1 in Civil Appeal No. 175 of 2011 and the appellant in Civil Appeal No. 176 of 2011 as petitioner, filed Writ Petition No. 1376 of 2009 before the High Court Division challenging the above mentioned three orders passed by the Artha Rin Adalat in Artha Rin Suit No. 7 of 2008 on the ground that they were passed without lawful authority and jurisdiction. The writ petitioner being a private limited company incorporated under the Companies Act, 1994 deals with the business of property development. The Writ petitioner company proposed to develop the land at plot No. 8, Road No. 104, Gulshan Model Town, Dhaka by constructing multistoried building thereon. The land belonged to Writ respondent No. 4, Mohammad Yahya, who got the same from RAJUK in 1996 vide a deed of lease agreement dated 22.07.1996 for 99 years. The Writ respondent No. 4 informed the writ petitioner that the title deed of his land had been deposited with the Trust Bank, Gulshan Corporate Branch, Dhaka as equitable mortgage to secure credit facilities. By executing tripartite agreement between the Writ Petitioner, Writ respondent No. 4, Mohammad Yahya and the Trust Bank, the sale price of the land had been settled. As per such agreement the writ petitioner made payment of Tk. 6,00,000,00 (six crores) to the Trust Bank to make the land owner free from liability. The Writ petitioner also paid Tk. 14,00,000,00 (fourteen lacs) to the land owner. On receipt of the said amount the Trust Bank handed over the title deed of the land to the Writ petitioner. Subsequently, the land owner executed a General power of Attorney on 25.09.2007 in favour of the Writ petitioner in order to facilitate the construction work of multistoried building over the said land and also for exercising his right relating to that land. The Writ respondent No.3 appellant, One Bank Limited, on 23.01.2008, as plaintiff, filed Artha Rin Suit No. 7 of 2008 before the Artha Rin Adalat, 1^st Court, Chittagong against the Writ respondent No. 4, Mohammad Yahya, claiming Tk. 9,00,000.00 (nine crores). On the same date the plaintiff- One Bank Limited, filed an application under Order, XXXVIII Rule 5 of the Code of Civil Procedure for attachment before Judgment. On that application show cause notices were issued upon the defendants, and pending hearing, by an ad-interim order passed on the same date (order No. 1 dated 23.01.2008) the said land had been attached. In January, 2009 the Writ petitioner filed an application under Order 1, Rule 10 of the Code of Civil Procedure for addition of party in the Artha Rin Suit which was rejected by the Court vide Order No. 49 dated 19.01.2009 on the ground that the petitioner had no locus standi under section 6(5) of the Artha Rin Adalat Ain, 2003. The Writ petitioner Chaya Developer (Pvt.) Limited challenging the authority of the concerned Judge (respondent No.2) in passing the said orders filed the Writ petition and obtained the Rule. To oppose the Rule, the Writ respondent No. 3, One Bank Limited, filed Affidavit-In-Opposition stating, inter-alia, that the petitioner has got no locus standi to file the Writ petition since the petitioner is no more the Attorney of the land owner as well as not yet acquired any title over the land.

A Division Bench of the High Court Division after hearing both the parties by the Judgment and Order dated 19.0.2011 made the Rule absolute upon setting aside the part of Order No. 1 dated 23.01.2008 except the registration of the suit, order No. 13 dated 06.04.2008 and Order No. 49 dated 19.01.2009 passed by the Artha Rin Adalat, 1^st Court, Chittagong in Artha Rin Suit No. 7 of 2008 and further holding the view that part of Order No. 1 dated 23.01.2008 relating to registration of the suit can remain valid as that was an administrative order.

Being aggrieved by the impugned Judgment and Order passed by the High Court Division, the Writ respondent No. 3 preferred Civil Appeal No. 175 of 2011 and Writ petitioner preferred Civil Appeal No. 176 of 2011 by leave before this Division.

In respect of Civil Appeal No. 175 of 2011 leave was granted to consider the following grounds:-

Whether the High Court Division was in error in nullifying the proceeding conducted by the Additional District Judge, inasmuch as the law does not say that trial by an Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid because of this lacuna;
Whether the writ petition itself suffers from incurable defect, inasmuch as the writ petitioner impugned order Nos. 1, 13 and 49 passed by the Artha Rin Adalat, although at no point of time he was a party to the suit. After his application to be added as a party was rejected by order No. 49 he filed the writ petition and took the liberty of impugning all three orders, although the first two orders impugned were passed before the writ petitioner came into the scene; and whether the High Court Division erred in entertaining the writ petition inasmuch as the writ petitioner had no locus standi to file the same;
Whether the High Court Division erred in setting aside Order No. 49 dated 19-01-2009 passed by the Joint District Judge, Artha Rin Adalat, as suffering from lack of jurisdiction;
Whether the High Court Division acted illegally in setting aside the orders passed by the Artha Rin Adalat, inasmuch as any bank, in order to recover a loan, would file an Artha Rin Suit, in the Artha Rin Adalat and the suit filed by a bank in the Artha Rin Adalat for recovery of loan does not impute any knowledge upon the bank as to whether the Artha Rin Adalat suffers from lack of jurisdiction.”

In respect of Civil Appeal No. 176 of 2011 leave was granted to consider the following grounds:-

Whether the High Court Division committed illegality by not allowing the petitioner to be added as defendant under Order 1 Rule 10 of the Code of Civil Procedure, the provision not being in conflict with provisions of Section 6(5) of the Artha Rin Adalat Ain, 2003;
Whether the High Court Division and the Artha Rin Adalat committed illegality by not considering the provision of section 6(5) of the Ain which is an enabling provision providing guidelines as to how the defendants can be impleaded in the proceedings of an Artha Rin Suit and there is no limitation regarding who may or may not be made parties in the Artha Rin proceedings; and whether the order of the High Court Division declaring order No. 49 dated 19-01-2009 to be illegal without directing the petitioner to be added in the category of defendant in the suit should be interfered by this Division;
Whether the petitioner is entitled to be added as party in the suit in the category of defendant since it acquired right, title, interest and possession by constructing a multi-storied building on the disputed land by operation of law by way of redemption of equitable mortgage in respect of debt of the respondent No. 4 with Trust Bank Limited by making payment to release the land owner from the bank’s liability long before filing of the suit and the order of attachment before judgment passed on 23-01-2008.

Mr. Kamal-Ul- Alam, the learned Senior Advocate, appearing for the appellant in the Civil Appeal No. 175 of 2011 submits that the High Court Division erred in law in nullifying the proceedings conducted by the learned Additional District Judge, inasmuch as the law does not say that trial by the learned Additional District Judge who was entrusted with the trial of Artha Rin Suit would be invalid because of this lacuna. Moreover, one of three impugned orders, namely, the Order No. 49 dated 19.o1.2009 was passed by the learned Joint District Judge acting as Judge, Artha Rin Adalat and therefore, his order does not suffer from lack of jurisdiction, and yet the High Court Division declared his order as corum non-judice. He further submits that the Writ petitioner had no locus standi to file the Writ petition challenging Order Nos. 1 and 13 when he was not a party to the suit. Finally, he submits that a bank’s only option for recovery of loan money is to move the Artha Rin Adalat, as provided by Artha Rin Adalat Ain, 2003 but a bank ought not to be expected to be aware of whether an Artha Rin Adalat suffers from lack of jurisdiction and therefore, a bank should not be made to suffer because of any alleged lack of jurisdiction of the concerned Judge.

Mr. Mahmudul Islam, the learned Senior Advocate, appearing for the respondent in Civil Appeal No. 175 of 2011 submit that under the Artha Rin Adalat Ain, 2003 the District Judge has neither any authority to appoint the Judge for Artha Rin Adalat nor any Judge either below or above the rank of Joint District Judge can ever be entitled to be appointed as a Judge of the said Court and that it is only the Government in consultation with the Supreme Court can appoint the Judge for the said Court from those Judges belonging to the rank of Joint District Judge. Mr. Islam contends that in absence of any Judge in the Artha Rin Adalat the District Judge may appoint a substitute Judge only from the rank of Joint District Judge to act as the presiding Judge in the said Adalat and that in the instant case the learned District Judge of Chittagong knew his limitation to this effect under law and thereby he appointed the said erstwhile Additional District Judge for the administrative work only of the said court and certainly not for performing any judicial function thereon, but in excess of that jurisdiction the said Judge entertained the suit and performed several judicial functions thereon including passing the Order Nos. 1-13 (23.01.2008-6.04.2008) and that subsequently though the matter was tried by the competent Judge of competent Court but as the matter suffers lack of jurisdiction (corum-non judice) since its inception hence the later proceedings are also nonest in law. Then he submits that the writ petitioner company has obtained the land for development and transfer in due course and thereafter, the same was transferred in the name of the Chairperson of the Company vide registered Sale Deed No. 8401 dated 27.10.2008 and the same was duly mutated in her name and the company has invested huge amount of money to construct a multi-storied building thereon and that the land was neither given mortgage nor committed to give mortgage against any loan as demanded by the bank. He finally submits that the impugned order of attachment before judgment passed by the learned Additional District Judge being Judge-In-Charge of the Artha Rin Adalat is illegal and without lawful authority and the appellant’s submissions in respect of the said attachment order before judgment is incorrect and misconceived and as such the appeal is liable to be dismissed.

Mr. Mahmudul Islam, the learned Senior Advocate, appearing for the appellant in Civil Appeal No. 176 of 2011 submits that the High Court Division committed illegality by not allowing the Writ petitioner to be added as a party in the Artha Rin Suit No. 7 of 2008 under Order No. 1 Rule 10 of the Code of Civil Procedure which is not in conflict with the provisions of Section 6(5) of Artha Rin Adalat Ain, 2003 inasmuch as Section 6(1) of the said Ain provides that the provisions of the Code of Civil Procedure, 1908 is made applicable to the Artha Rin proceedings if it is not in conflict with the provisions of the said Ain.   He then submits that the High Court Division and the Artha Rin Adalat committed illegality without considering the provisions of Section 6(5) of the Ain which is an enabling provision providing guidelines as to how the defendants can be impleaded in the proceedings of an Artha Rin Suit and as such the Order No. 49 dated 19.01.2009 which was declared illegal by the High Court Division without passing any order as to the addition of party of the petitioner in the category of defendant in the said suit should be interfered with by this Division . He further submits that the principle of law is that either a necessary or a proper party may be added in a suit and that a proper party is one who is legally interested in the suit. He finally submits that the Order No. 1 dated 23.02.2008 and Order No. 13 dated 06.04.2008 of the Artha Rin Suit No. 7 of 2008 for attachment of the property of the appellant and the Order No. 33 dated 11.09.2008 read with Order No. 36 dated 18.09.2009 restraining the appellant from carrying on with any construction work have adversely affected the rights of the appellant as a developer and in that view of the matter the Order No. 49 dated 19.01.2009 is illegal and without lawful authority and the appellant is entitled to be added as a proper party to the suit.

Mr. Kamal-Ul-Alam, the learned Senior Advocate, appearing for the respondent No. 3 in Civil Appeal No. 176 of 2011 submits that there is no illegality in the impugned judgment and order dated 19.01.2011 passed by the High Court Division and as such no interference is called for by this court. He then submits that the Artha Rin Adalat Ain is a special law which takes priority over ordinary law, and section 6(5) of the Artha Rin Adalat Ain clearly lays down that only three kinds of persons may be the defendants in an Artha Rin Suit, namely, principal debtor, third party mortgagor and third party guarantor but the appellant, not belonging to any of these three categories, cannot be added as a defendant. He finally submits that Order 1 Rule 10(2) of the Code of Civil Procedure lays down the general rule when a person may be added as a party; but for the purpose of recovery of loan liabilities by the financial institutions Artha Rin Adalat Ain, 2003 was enacted which is a special law and which makes special provisions regarding parties in an Artha Rin suit: section 6(5) is unambiguous in its description of parties, and hence section 6(5) will prevail over Order 1 Rule 10 of the Code of Civil procedure which has no manner of application in an Artha Rin Suit and as such the appeal is liable to be dismissed.

We have heard the learned Senior Advocates for both the parties and perused the impugned judgment and order of the High court Division, concise statements submitted on behalf of all the parties and also other materials available on record.

It appears that while deciding the case the High Court Division found that the impugned orders were passed by the learned Additional District Judge, Chittagong and by a portion of the Order No. 1 the suit was registered as an Artha Rin Suit and by another portion of the said order (an ad-interim order) the land in question was attached till hearing of the matter by the learned Additional District Judge who presided over the Sessions of the Artha Rin Adalat. The portion of the said order attaching the land was passed as the Judge-In-Charge of the Artha Rin Adalat which is not an administrative order rather it is a judicial order. Such judicial order cannot be passed by a Judge without having any lawful authority. The Artha Rin Adalat Ain, 2003 is a special law providing for special measures to realize loans given by financial institutions. The preamble of the Artha Rin Adalat Ain, 2003 declares that the Ain, 2003 has been enacted with a view to further consolidate and amend the existing law (Artha Rin Adalat Ain, 1990) for speedy recovery of loan of the financial institutions. Section 4 of the Artha Rin Adalat Ain, 2003 provides for the establishment of Artha Rin Adalats. Therefore, it is pertinent to discuss the relevant provisions of Section 4. Under section 4(3) of the Ain, where no Artha Rin Adalat has been established as such any suit for the recovery of dues owed to financial institutions has to be filed with the concerned Court of the Joint District Judge having territorial jurisdiction and it will be deemed that the Court of the Joint District Judge has been in fact established/declared as an Artha Rin Adalat under the provisions of the Ain, 2003. Section 4(4) of the Ain provides that for implementation of the objective of this section the Government shall by Notification in the Official Gazette declare a Court of Joint District Judge as the Artha Rin Adalat and after such declaration the functions of the said Court of Joint District Judge would be closed or stayed and the learned District Judge shall by an order transfer all pending cases from this Court to any other Court of Joint District Judge under his jurisdiction. Regarding the appointment of Judges of the Artha Rin Adalat, Section 4(5) of the Ain envisages that the Government shall in consultation with the Supreme Court, appoint   Judges of the Artha Rin Adalats from amongst the Joint District Judges and the Joint District Judges appointed in the aforesaid manner shall not be able to adjudicate any other civil or criminal cases except the Artha Rin Suit. Section 4(7) of the Ain provides that if a Judge of the Artha Rin Adalat has temporarily been unable to perform his duty owing to leave, illness or any other reason then the District Judge may appoint a Joint District Judge under his jurisdiction and control to perform the functions and duties of a Judge of Artha Rin Adalat for the time being on full time basis or in addition to his own duties. Section 5 (1) of the Ain contemplates that notwithstanding anything contained in any other law and subject to the provisions of Sub-Sections (5) and (6), a financial institution may institute a suit in connection with the realization of loan in the Artha Rin Adalat under the Ain. From the scheme of the Ain as contemplated in the different sections of the Ain more particularly sections 4,5,6,26,28 and 47 it can be construed that Artha Rin Adalat is not a full-fledged Civil Court with all the powers and jurisdiction of a Civil Court. Rather it is a Civil Court of a defined and limited jurisdiction as contemplated in different provisions of the Ain. In view of the provisions of section 6(1) of the Ain holding of trial and disposing of any suit filed in an Artha Rin Adalat the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain, 2003. Moreover, Section 26 provides that as regards execution of decree passed under this Ain the provisions of the Code of Civil Procedure, 1908 are applicable if these are not in conflict with the provisions of the Ain. In the instant case, we are of the view that the provisions of Order 1 Rule 10 of the Code are not in conflict with those of the Ain, 2003 inasmuch as the former is very much in conformity with the provisions of section 6(5) of the Ain and as such the former is applicable in the instant suit.

The High Court Division also found that the Order No. 13 dated 06.04.2008 and Order No. 49 dated 19.01.2009 are not related to the administration of the Court and these orders cannot be passed by the learned Judge-In-Charge having the rank of an Additional District Judge. From the scheme of the Artha Rin Adalat Ain, 2003 and the provisions of Section 4 of the Ain it is clear that the only persons legally competent to be appointed to act as Judges of the Artha Rin Adalat are Joint District Judges.   In view of Section 4 (7) of the Ain even those who are performing the functions of Judges–in-Charge of the Artha Rin Adalat shall have to be appointed from amongst the Joint District Judges. Therefore, the High Court Division rightly set aside those orders which were passed by the learned Judge-in-Charge who was holding the rank of Additional District Judge but part of the impugned Order No. 1 dated 23.01.2008 relating to the registration of the suit was kept valid as that was an administrative order. The learned Additional District Judge has no jurisdiction to pass any judicial order in Artha Rin Suit in view of the provisions of Section 4 of the Artha Rin Adalat Ain, 2003. There is no illegality in the order of the High Court Division in nullifying the proceedings presided over by the learned Additional District Judge in the Artha Rin suit. As per provisions of Section 5 of the Ain any suit for recovery loan of any financial institution shall be filed and tried by Artha Rin Adalat. Section 5(1) of the Artha Rin Adalat Ain provides that notwithstanding anything contained in any other provisions of law and subject to the provisions of Sub-Sections (5) and (6), any suit for realization of any loan shall be filed in the Artha Rin Adalat established, created or deemed to have been created and the suit shall be disposed of in the said Adalat. We have already opined that the learned Additional District Judge cannot be a Judge of Artha Rin Adalat as per provisions of Sub-Sections (4) and (7) of Section 4 of the said Ain, 2003. In view of the above observations and findings we are of the view that the impugned order of attachment before judgment passed by the learned Additional District Judge acting as a Judge of Artha Rin Adalat without having any power and jurisdiction being Coram non judice has been passed without lawful authority and jurisdiction. We are in full agreement with the views taken by the High Court Division to the extent that the learned Additional District Judge who is in charge of the Artha Rin Adalat cannot pass any judicial order in relation to Artha Rin Suit. Therefore, we do not find any merit in the Civil Appeal No. 175 of 2011 and as such the appeal is liable to be dismissed.

In Civil Appeal No. 176 of 2011 on perusal of the record we find that Order No. 49 dated 19.01.2009 was not issued by the learned Additional District Judge, Chittagong rather it was passed by the learned Judge of the Artha Rin Adalat No. 1 Chittagong, who in fact being a Joint District Judge has been appointed legally in accordance with the provisions of law. It is regrettable to note that the High Court Division lost sight of this fact in deciding the case. The established principle of law is that either a necessary party or a proper party may be added in the suit. A necessary party is one in whose absence no effective decree can be passed. Where as a proper party is one whose presence is not necessary for passing an effective decree. The presence of proper party facilities more effectual and complete adjudication of all the disputes and avoid multiplicity of proceeding between the parties. A proper party is one who is legally interested in the suit. A legally interested party is one whose rights has been adversely affected by any order of a court. It appears that order No.1 dated 23.01.2008 and order No. 13 dated 6.4.2008 of the Artha Rin Suit were passed for attachment of the property in question before judgment and order No. 33 dated 11-09-2008 and order No. 36 dated 18-09-2009 were passed restraining the appellant in Civil Appeal No. 176 of 2012 by an order of temporary injunction from carrying on with any construction work on the property in question which have adversely affected the rights of the appellant as a developer. In that view of the matters the appellant- developer being a proper party is entitled to be added as a party to the said Suit and as such Order No. 49 dated 19.1.2009 is illegal and without lawful authority for not allowing it to be added as a party in the suit. Moreover, it has been asserted by the appellant that the agreement dated 26.7.2007 between the appellant-developer and the respondent No. 4 along with the power of attorney dated 25.09.2007 were executed after receiving Tk.6,14,00,000/- as consideration money long before filing of the suit on 23.01.2008. The appellant-developer further asserted that the property was transferred to the Chairman of the appellant company by sale deed No. 8401 dated 27.10.2008 and in view of the order of the attachment before judgment the property in question of Schedule-A to the writ petition no longer belonged to the respondent No.4. The appellant further asserted that its rights has been affected by order Nos.1, 13 (attachment before judgment), 33 and 36 (temporary injunction) passed by the respondent No.2 in the said suit and as such the appellant is a proper party to the suit. The appellant further stated that it acquired right, title, interest and possession in the disputed land by operation of law by way of redemption of equitable mortgage in respect of debt of the respondent No. 4 with Trust Bank Limited by making payment of Tk.6(six) crones vide cheque No. 02100139 dated 25.07.2007, i.e. long before filing of the suit and the appellant-developer was put into possession in the said property and that the appellant had been clothed with the status of subrogee, mortgagee in possession, acquiring all the rights and obligations of the subrogator Trust Bank Ltd. On the other hand, it has been asserted that for the payment of mortgage money and sale price of beneficial interest of the Respondent No. 4 in the property, charge has already been created infavour of the appellant-developer much earlier than passing the order of attachment before judgment on 23.01.2008 and as such the appellant-developer is a proper party in the suit. Therefore, Order No. 49 dated 19.01.2009 is not sustainable in law. The High Court Division while making the Rule absolute upon setting aside the order No., 49 dated 19.05.2009 committed illegality by not allowing the appellant-developer to be added as a party in the suit under Order 1 Rule 10 of the Code of Civil Procedure inasmuch as Section 6(5) of the Ain which provides guidelines as to how the defendants can be impleaded in the proceedings of Artha Rin Suit is in conformity with the provisions of the aforesaid Order. In that view of the matter the appellant-developer is entitled to be added as a party in the suit in the category of defendant. Therefore we find merit in Civil Appeal No. 176 of 2011.

It appears that the appellant-developer of the Civil Appeal No. 176 of 2011 has been adversely affected by the judgment and order dated 19-01-2011 passed by the High Court Division making the rule absolute so far as it relates to setting aside of the Order No. 49 dated 19-01-2009 passed by the respondent No. 2 in Artha Rin Suit No. 7 of 2008 without passing any necessary order for making it as an added party in the suit in the category of defendant. There is no provision in the Artha Rin Adalat Ain, 2003 which debars a person adversely affected by the decision in an Artha Rin Suit from being added as a party to the suit. We find substance in the arguments put forward by the learned Senior Advocate for the appellant in Civil Appeal No. 176 of 2011.

In view of the above observations and findings Civil Appeal No. 175 of 2011 is dismissed and Civil Appeal No. 176 of 2011 is, however, allowed. There is no order as to costs.

Ed.

Oram Limited Vs. Commissioner of Customs Excise and VAT Commissionerate, Dhaka, 53 DLR (2001) 373

Case No: Writ Petition No. 4891 of 2000

Judge: Md. Abdul Wahhab Miah,

Court: High Court Division,,

Citation: 53 DLR (2001) 373

Case Year: 2001

Appellant: Oram Limited

Respondent: Commissioner of Customs

Subject: Fiscal Law,

Delivery Date: 2000-12-4

Supreme Court
High Court Division
(Special Original Jurisdiction)

Present:
Md. Fazlul Karim J
Md. Abdul Wahhab Miah J

Oram Limited
………………….Petitioner
Vs.
Commissioner of Customs Excise and VAT Commissionerate, Dhaka
…………………Respondents

Judgment
December 4, 2000.

Value Added Tax Rules, 1991
Rule 3(2)
The specific case of the petitioner being that the declaration submitted by them was accepted by the authority and they paid VAT regularly have not been denied by the respondent in the affidavit-in-opposition we have no hesitation but to accept the case of the petitioner.

Lawyers Involved:
MR Hasan, Advocate—For the Petitioners.
Md. Bazlur Rahman, Deputy Attorney-General with, Mostafa Zaman Islam, Assistant Attorney-General —For the Respondents.

Writ Petition No. 4891 of 2000

JUDGMENT

Md. Abdul Wahhab Miah J.

This Rule Nisi was issued calling upon the respondent to show cause as to why the impugned decisions and demand contained in letter dated 7-7-97 and 14-7-1997 (Annexures-C and C-1) and also in letter dated 11- 4-2000 (Annexure-H) should not be declared to have been made without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this court may seem fit and proper.

2. In the writ application it has been stated, inter alia, that the petitioner a private Limited Company is engaged in the business of Manufacturing Mosquito Coil under the contracts of manufacture signed between the petitioner and the brand owners of the products namely Reckitt and Colman Bangladesh Limited, as well as for it self. The petitioner is also registered as manufacturer under the relevant provision of the Value Added Tax (VAT) Act, 1991 and is doing business on regular payment of VAT as required under and in compliance with the provisions of VAT Act 1991 and the VAT Rules 1991, both of which were enacted in the year 1991. For the purpose of assessing and paying VAT the petitioner in 1991 submitted declaration on the basis of price as required by Rule 3(1) of the VAT rules 1991 in respect of 2 (Two) brands of the Mosquito Coils manufactured by it under the contract of manufacture signed with the respective brand owners namely Mortein Mosquito Coil of Reckitt and Colman BD Ltd. and Flyban Mosquito Coil of Flyban Insecticides Ltd. as well as, in respect of its own brand namely Sunflower Mosquito Coil and had been regularly assessing and paying VAT on the basis of the price thus declared by the petitioner in 1991 as per Rule 3(1) of the VAT Rules, 1991. Rule 3(2) of the VAT Rules, 1991 permits the registered person in this case the petitioner to submit a new declaration on the basis of the price if the registered person (not the authority) considers it necessary to change the basis of the price declared by it as per rule 3(1) of the VAT Rules 1991 and to pay VAT on the basis of the price newly declared by the registered person. Rule 3(2) does neither authorise the VAT authority to revise the price declared nor require any approval of the VAT authority in respect of the price declared or amended by the registered person as per Sub-rule (2) of Rule 3, but the said Rule 3(2) only casts upon the VAT authority a clear duty to immediately communicate the newly declared price to the circle superintendent and the computer cell of the Commissioner’s office. As permitted by Rule 3(2) of the VAT Rules, 1991, the petitioner considered it necessary to submit new declaration on the basis of the price of aforesaid 3(three) brands of Mosquito Coils, and accordingly submitted new declaration on the basis of price in Form Mushak 1 on 11-4-1994 along with cost analysis, and have been regularly assessing and paying VAT on basis of the price thus declared on 11-4-1994. There was no need to change the basis of the price declared on 11-4-1994 until June 1997, hence the petitioner has been regularly paying VAT and the authority was also accepting VAT on account of aforesaid 3(three) brands of mosquito coils since 11-4-1994 to 30th June 1997 on the basis of the price declared on 11-4-1994 as per Rule 3(2) of the VAT Rules, 1991. The VAT authority makes inspection and audit from time to time through their own audit team and they also raised no objection about the basis of the price declared and maintained since 11-4-1994 to June 1997. The petitioner needed to declare a new basis of price and accordingly stated new price in form Mushak-1 on 9-6-1997 as per provisions of Rules 3(2) of the VAT Rules, in respect of the aforesaid 3(three) brands of Mosquito Coils namely, Mortein, Flyban and Sunflower and submitted the same on 1-7-1997 along with separate cost analysis for each product enclosed with their letter under Ref Oli/Ka/Mushak/97(1) dated 29-6-1997 addressed to the Assistant Commissioner, Customs Excise and VAT Division, Mymensingh. The price declared on 11-4-1994 and the new prices submitted on 1-7-1997 were as follows:

Name of the brands (per carton of 600 pieces)	Price declared on 14-4-1994	New price declared as per Rule 3(2) and submitted on 1-7-1997.
1. Mortein	Taka 442.10	Taka 547.83
2. Flyban	Taka 469.56	Taka 573.91
3. Sunflower	Taka 417.39	Taka 417.39

VAT is to be paid by the petitioner as per the price declared by it as provided in Rule 3(2). After receiving the declaration of price on 1-7-1997 the Respondent No.3 by his letter under Ref Nathi No.4-A(218) VAT/Misc/94/p-1 3632 dated 7-7-97 refixed the price at Taka 678.00 in place of the price declared at Taka 547.83 on account of Mortein Taka 869.00 in place of the price declared at Takas 573.91 on account of Flyban and Taka 540.0 place of the price declared at Taka 417.39 on account of Sunflower and given effect to the price thus refixed by him from August 1995 on the alleged basis of the price approved in August 1995 for ARS and Cock brand Mosquito Coil of the other manufacturer of Gazipur area in purported exercise of power under Rule 3(2) of the VAT Rules 1991. The respondent No.3 again issued another letter under Ref 4-A(1)22 Mosquito Coil/VAT/93/3719 dated 14-7-1997 alleging that the price per carton (600 pieces) Taka 442.10 of Mortein, Taka 469.56 Flyban and Taka 417.39 as declared by the petitioner and approved on 11-4-1994 by the VAT authority were inconsistent compared to the price of Globe and Cock brand Mosquito Coils manufactured within Gazipur Jurisdiction and that the basis of price of the Mosquito Coils of the petitioner should be the price as fixed in respect of ARS and Cock brand mosquito Coils with effect from August 1995 and accordingly directed the petitioner to pay VAT amounting Taka 1,14,688.70 alleged to be paid less due to the price fixed by it with effect from August, 1995 to May, 1997. In fixing a price higher than that declared on 1-7-1997 retrospectively from August 1995 by issuing the letter dated 7-7-1997 and 14-7-1997 (Annexure C) and C (1) the respondents No. 3 has exercised a jurisdiction not vested in him by Rule 3(3) of the VAT Rules 1991 which does not authorise fixing basis of price from a date previous to the date of declaration. By issuing aforesaid two letters dated 7-7-1997 and 14-7-1997 fixing price basis with effect from August, 1995 the Respondent No.3 has clearly exceeded the authority vested in him under Rule 3(3) of the VAT Rules, 1991 which permits to fix the price basis only from the date of declaration of price, which was 1-7-1997 in this case, but not retrospectively. In issuing his letters dated 7-7-1997 and 14-7-1997 the respondent No.3 has disregarded the fact that admittedly he received declaration of price on 1-7-1997 and that he has no legal authority to fix price prior to the date of declaration i.e. 1-7-1997 and that the direction dated 14-7-1997 given after 10(Ten) working days from the date of declaration of price given on 11-4-1994 and also from the date of declaration of price given on 1-7-1997 was in clear violation of the proviso to Rule 3(3) as incorporated by SRO No.133- Ain/95/150/VAT dated 12-6-1997 and that no declaration being given by the petitioner on August 1995, the Respondent No.3 had no authority to fix any basis of price with effect from August 1995 in purported exercise of power under Rule 3(3) of the VAT Rule. The Respondent No. 3 has also disregarded the cost analysis dated 29-6-1997 submitted on 1-7-1997 as well as he could not assign any reason as to why he should not agree with the cost analysis submitted on 1-7-1997. The Respondent issued the impugned letters without hearing the petitioner as required by Rule 3(3) of the VAT Rules, 1991. The decision of the Respondent No.3 as communicated in his letter dated 7-7-1997 and 14-7-1997 in fixing price from August 1995 is a colourable exercise of power, unreasonable, for collateral purpose, malice in law, based on extraneous consideration. Against the aforesaid decision dated 7-7-1997 of the Respondent No.3 the petitioner filed an application to the Commissioner on 10-7-1997 stating that fixation of price by the Respondent No.3 above the rate at which the commodities are sold by the petitioner its buyer was baseless. The petitioner submitted all relevant contracts as proof of the price at which it sells its products. The Mosquito coils manufactured by ARS and Cock brand owners were made of different chemicals and formula than the petitioner. Due to the location of the factory, production planning and management skill of the petitioner it was capable to manufacture coils at the most cheap and competitive price in the world and the petitioner is the only member of the International Mosquito Coil Manufacturers Association. The petitioner being the manufacturer of the machines used for manufacturing the coil the cost of production of the petitioner was at least 30% less than similar other company manufacturing coil by machineries brought or imported from outside. As result of this unreasonable and unlawful decision the buyer stopped purchase from the petitioner and unemployment problem has arisen and the Government would be deprived of about 1.25 crore of Taka revenue earning per year if the petitioner’s factory is closed.

3. It has further been stated that after the completion of the audit by the VAT audit team without any objection the abrupt and illegal demand was made after 3 years only to destroy the factory. The Respondent No.1 having not given any decision settling the price basis upon the application dated 10-7-1997 within 10 working days the same is deemed to have been allowed by him as per provisions of the proviso to Rule 3(7) of the VAT Rules 1991 as amended on 12-6-1997. The petitioner addressed the copy of its application dated 10-7-1997 to the Member VAT National Board of Revenue on 10-7-1997, whereupon, the National Board of Revenue vide letter under reference: নথি নং ১ মুষক বাস্তবায়ন পণ্য/৯৭/১৩৫(১) তাং ৩১/৭/১৯৯১ ইং directed the Respondent No.1 to supply specimen of the Mosquito Coils of different brands manufactured by the petitioner, so that the correctness of the petitioners contention could be ascertained, but no specimen was supplied to the National Board of Revenue and thus the respondents have failed to discharge their responsibilities. The declaration of price submitted on 1-7-1997 being submitted as per provision of Rule 3(2) of the VAT Rules, the petitioner, as the registered person was entitled and obliged to assess and pay VAT on the basis of the price declared by it and have been assessing and paying VAT on the basis of the price thus declared by it on 1-7-1997 and the authority had been accepting VAT accordingly and allowed to supply and/or deliver the concerned goods on payment of VAT at that price. The petitioner in the aforesaid circumstance had been paying VAT since July 1997 on the basis of the price declared by it on 1-7-1997 until the petitioner considered it necessary to submit a new declaration on 15-4-1998 along with cost analysis in Mushak- 1 in respect of the 3 brands which were as follows:

Brand name(per carton of 600 pieces)	Price declared on 1-7-1997	New price declared as per Rule 3(2) on 15-4-1998.
1. Mortein	Taka 547.83	Taka 688.70
2. Flyban	Taka 573.91	Taka 630.00
3. Sun flower	Taka 417.39	Taka 540.00

No objection was received in respect of this declaration of price within 10 working days as provided in the proviso to Rule 3(3) of the VAT Rules, hence the price declared on 15-4-1998 became final and binding on the VAT authority on and from 25-4-1998. The divisional authority of the VAT, having received the new declaration on the basis of the price along with the cost analysis submitted on 15-4-1998 raised objection in respect the price of Flyban by their letter Ref. Nathi No.4A(1)22/Mosquito Coil/Mushak/93/94 dated 5-5-1998 and called upon the petitioner to appear for hearing on 13-5-1998 in support of the basis of price declared and accordingly the factory manager of the petitioner appeared for hearing on 13-5-1998 who submitted a written representation before the divisional officer of the VAT in support of declaration of price and cost analysis dated 15-4-1998. The authority showed disagreement in respect of the basis of the price of Flyban Mosquito Coil. Hence, based on the same cost analysis dated 15-4-1998 the factory Manager of the petitioner proposed to increase Taka 50.00 to the basis of the price declared in respect of Flyban mosquito coil. Since the declaration of price submitted on 15-4-1998 was given in the old form of Mushak-1 the petitioner representative was therefore also advised to subsoil the declaration of price of all the 3 brands of mosquito coils in new Form of Mushak 1, and accordingly on 22-4-1998 the petitioner submitted declaration of price in new Form Mushak.1 in respect of Mortein and Sunflower Mosquito Coils showing the same price as declared on 15-4-1991 being Taka 688.70 in respect of Mortein Coil and Taka 541.00 in respect of Sunflower. The petitioner filed another declaration of price in new form Mushak on 22-6-1998 in respect of Flybas Mosquito Coil showing the earlier declared price at Taka 630.00 as the previous price and the new print declared on 22-6-1998 at Taka 680.00 i.e. increasing Taka 50/per carton. The price thus declared on 22-4-1998 in respect of Mortein and Sunflower and on 22-6-1998 in respect of Flyban in new form Mushak 1 was approved by the VAT authority by their let Ref. Nathi No.4 (A) I 22 Mosquito Coil/Mushak/93/ 1492(2) dated 30-6-1998. Besides no objection raised within 10 working days in respect of the price declared on 22-4-1998 and 22-6-98 respectively the same has also become final as per proviso to Rule 3(3) of the VAT Rules 1991. The impugned letters dated 7-7-1997 and 14-7-1997 have lost its validity and have become a nullity as well in view of the approval of the basis of the price in 1998 and acceptance of VAT at that price since 1998. Even then the respondent No.2 issued several letters under the same reference dated 30-6-2000, 25-6-2000, 23-8-2000, 29-8-2000, and finally under Ref Nathi No. 4-A(I) 22/Mosquito/VAT/93/4756 dated 11-9-2000 all in the same language claiming payment of VAT due to fixation of price from August 95 to May 1997 as per letter dated 14-7-1997 of the Respondent No.1 thereby creating immediate threat to close down the factory and to detain the commodities i.e. mosquito Coils Manufactured by the petitioner. The Respondent No.2 issued the said letters without taking into consideration the material fact that the letter dated 14-7-97 was ultra vires and of Rule 3(3) and that the price declared by the petitioner on 1-7-1997 was ultimately accepted and approved and acted upon by the authority in 1998. Besides, these letters of Respondent No.2 had been issued at a time when the entire country was and is undergoing the epidemic of Dengue Fever spread by ADIS mosquito and claiming lives of hundreds of the people and exposing Millions of human lives to death. In such circumstances raising a time barred, artificial, illegal and ultra vires claim as stated above, particularly when the petitioner accepted orders for manufacturing Coils and is engaged in the performance of its contractual obligation is nothing but colourable exercise of power for collateral purpose and malice in law and these letters of demand are without lawful authority and are of no legal effect. Under the above circumstances there being no other equally efficacious remedy provided by law, the petitioner moved this court and obtained the present Rule.

4. The petitioner has also filed a supplementary affidavit stating, inter alia, that it submitted a new declaration of price on 15-4-1998 in the old form of Mushak 1 which has already been annexed to the petition as Annexure-F, but the said Mushak 1 being in old form the petitioner had to submit the said declaration again in new form of Mushak 1 enclosed with the petitioners’ letter dated 22-4-1998, which the respondents received on 22-4-98, the respondent No.4 addressed his letter Ref Nathi No.4A(i) mosquitoes Coil/Mushak/93/994 dated 5-5-96 which has already been annexed to the petition as Annexure-G.

5. The Rule has been contested by the respondent No.1 by filing an affidavit-in-opposition stating inter alia, that the petitioner has misconstrued and misinterpreted the provision of law. As per the amendment made in Rule 3 Vide SRO No.99 dated 15-6-1995 the authority can verify the value by comparing the same with the similar products and in the present case the respondents after verifying the value of the similar products and after hearing the petitioner have determined the correct value, under the law the department can take steps for realising the unpaid amount of VAT if any. In the present case a departmental team verified the price of various brands of Mosquito coils available in the market and submitted a comparative report to the departmental authority. In the said report the enquiry committee has mentioned about the price of the similar products. At the time of enquiry they found that the price of Globe mosquito coil is Taka 678.00 per cartoon (600 pieces) ARS Coil is Taka 869.00 per cartoon(600 pieces) and Cock brand mosquito Coil is Taka 640.00 per cartoon (600 pieces) and those coils are similar in nature and quality with the petitioner’s product. Thereafter the respondent gave notice to the petitioner company and after hearing the new price was fixed. The petitioner was given chance to show its causes and it appeared before the authority on 30-4-1997, 11-5-1997 and 1-6-1997 and showed its causes but since the same was not satisfactory the respondent did not accept the same. The petitioner declared the value of his product on 11-4-1994, and as per law the value fixed by the respondent is to be effective from that date but the respondents by showing lenience to the petitioner have fixed the value of the petitioner’s products from August 1995 instead from the date of his declaration on 11-4-1994. The petitioner has filed the instant writ petition against an order passed by the Assistant Commissioner (VAT) without exhausting the alternative remedy available to it by way of filing an appeal to the Commissioner as provided in section 42 of the VAT Act and hence the writ petition is not maintainable in law.

6. An affidavit-in-reply has been filed by the petitioner to the affidavit-in-opposition filed by the respondent No.1 reiterating the facts stated in the writ application and stating further that there was no basis before the respondents to hold that the product of the petitioner was similar to other products as alleged, rather the respondents omitted to send sample of the concerned products as directed by NBR, vide Annexure-E dated 31-7-1997. The grounds for interference made available to the authority in clause (Ka) Gha) of Rule 3(3) as added by SRO No. 99 dated 15-6-1995, cannot be resorted to arbitrarily nor those grounds can be availed of unconditionally. The grounds stated in clause (Ka) (Gha) of Rule 3(3) can be resorted to only upon a finding that the declaration of price is not supported by the cost analysis submitted therewith that is in case of discrepancy between the price declared and the cost analysis submitted in support thereof, but in this case there was no audit objection nor any finding to the effect that the price declared by the petitioner was not supported by the cost analysis, Besides, there is no authority to review the price declared after the expiry of 10(ten) days from the date of receipt of the declaration of price vide proviso to Rule 3(3) of the VAT Rules, 1991, without hearing the petitioner or to fix price from a date prior to the date of declaration of price, which was on 1-7-1997 in this case as admitted in the impugned Annexure C dated 7-7-1997. After the expiry of 10 days from 11-4-94, the respondent No. 3 under Rule 3(7) did not make a request to the respondent No. 1 to fix the basis of the price while he himself had no authority to fix the basis of the price in respect of the price declared on 11-4-1994 after the expiry of 10(ten) working days and as such the impugned letters dated 7-7-97 and 14-7-1997 have been issued without lawful authority. If the direction of the National Board of Revenue to send the sample would have been followed then it would have shown that the contention of respondent No. 3 to the effect that the Globe, ARS or Cock brand Mosquito Coils were similar to the coils of the petitioner in nature was wrong. It is false that the respondents gave any notice of hearing to the petitioner after receiving the declaration of price on 1-7-1997. The respondent No.3 did not give any hearing to the petitioner which was a precondition for exercising authority under rule 3(3) of the VAT Rules 1991. The contention of the respondent that the petitioner appeared before the authority on 30-4-97, 11-5-97 or 1-6-97 are all relating to the dates prior to 1-7-97 that is the date of declaration and as such admittedly the respondent No. 3 did not issue any notice nor gave any hearing after receiving declaration of new price on 1-7-97 as required by rule 3(3) of the VAT Rules. After the expiry of 10(ten) working days from 11-4 -94 of the previous date of declaration of price, the only authority to refix price is vested in the Commissioner (Respondent No. 1) as per rule 3(7) which he could have exercised at the request of the respondent No. 3 but the respondent No. 3 did not make any request under the said Rule 3(7) to refix the price. Rule 3(7) of the VAT Rules having not vested any authority in respondent No. 3 to review the price declared the impugned letters dated 1-7-97 and 7-7-97 (Annexures-C and C-1) were issued without lawful authority and the letters dated 11-9-2000 (Annexure-H) based on those letters is also without lawful authority. The respondents have no document to show that the petitioner made declaration in August 1995 and as such had no authority to fix any price from August 1995, more so, after the expiry of the time limit prescribed in proviso to rule 3(3) of the VAT Rules 1991. The questions raised in the writ petition are whether the VAT authority can refix the basis of price retrospectively or can resort to rule 3(3) of the Rules without any subjective basis and without hearing the petitioner are purely questions of law and as such the bar of not availing the alternative remedy does not apply to the instant case and in the facts and circumstances of this case writ petition is maintainable in law.

7. Mr. MR Hasan, learned Advocate appearing for the petitioner submits that rule 3 of the Value Added Tax Rules, 1991 (VAT) has provided the procedure as to the filing of declaration of price of the products of an Industrial concern manufacturer registered under the VAT Act 1991. As per the provision of section 5 of the VAT Act the petitioner submitted its original declaration of price of its products in 1991 and then new declaration of price was submitted on 11-4-94 as per rule 3(2) of the VAT Rules, 1991 which was accepted and it had assessed and paid VAT regularly and thereafter felt the necessity for filing fresh price declaration and accordingly filed the same on 29-6-97 along with separate cost analysis for each product which was received by the VAT authority on 1-7-1997 and as per Rule 3(3) for the VAT Rules 1991 no objection having been taken by the respondents within 10 working days from the date of receiving the new declaration the same was deemed to have been accepted and accordingly the petitioner had paid VAT and other charges regularly, the respondent No. 3 acted illegally and without jurisdiction issuing demands vide his letter under Nathi No. 4-A(2 18) VAT/Misc/94/P-I/3632 dated 7-7-97 (Annexure-C) and letter under Nathi No.4-A(1)22/Mosquito Coil/Mushak/93/3719 dated 14-7-97 (Annexure-I) refixing the price at Taka 678.00 in place of the price of the price declared at Taka 547.83 for Mortein Taka 869.00 in place of the price declared at Taka 573.91 for Flyban and 540.00 in place of the price declared at taka 417.39 for Sunflower giving retrospective effect from August 1995 to May 1997 total claim being for Taka 1,14,28,688.70 as well as the respondent No.2 in making demand for the said amount for the said period vide demand under Nathi No.4-A(1)22/Mosquito Coil/93/21142 dated 11-9-2000 (Annexure-H) and as such the same are liable to be declared to have been issued without lawful authority and of no legal effect.
8. Mr. MR Hasan, submits that the VAT authority could not but refix the price of the petitioner’s product only following the procedure as laid down in rule 3(3) of the VAT rules 1991 and they having accepted the price declaration of the petitioner submitted on 11-4-1994 and 1-7-1997 respectively could not in any way charge VAT against the petitioner’s product by fixing price of their own giving retrospective effect from August 95 to May 1997 that is the date on which no price declaration was submitted, impugned demands made by Annexures C, C-1 and H are liable to be. Declared to have been issued without lawful authority and are of no legal effect. Mr. Hasan further submits that the decisions contained in Annexures C and C-I are contrary to the proviso to rule 3(3) of the VAT Rules 1991 and based on extraneous consideration in total disregard of the cost analysis submitted by the petitioner on 29-6-1997 and officially accepted on 1-7-1997 and as such the demands made therein are without jurisdiction. Mr. Hasan lastly submits that the impugned. demands fixing the price of the petitioners product other than the price declared by it duly supported by cost analysis have been made In clear violation of Rule 3(3) of the VAT Rules, 1991 and the principle of natural justice as no hearing was given to the petitioner prior to such fixation of price.

9. Mr. Md. Bazlur Rahman learned Deputy Attorney-General appearing with Mr. Mustafa Zaman Islam, learned Assistant Attorney-General for the Commissioner of Customs Excise of VAT Dhaka (North) on the other hand, submits that in view of the provision of rule 3(3) of the VAT Rules, 1991 as amended on 15-6-1995 the VAT authorities could verify the price of the product products declared by the registered industrial concern manufacturer by comparing the same with the similar products and fix the price of its own and in the instant case the VAT authorities through its department having verified the price of the similar products in the market and after giving the petitioner show cause notice and hearing fixed the price of the products in question and in doing so the respondents acted within their jurisdiction and rightly made the demands for the unpaid VAT against the price of the products fixed by them. Learned Deputy Attorney-General lastly submits that there being provision for appeal to the Commissioner as provided in section 42 of the VAT Act, 1991 against the demand of VAT made by the Respondent No. 3 and respectively but the petitioner having not availed the same the writ petition is not maintainable in law.

10. At the very outset it is necessary to mention that at the time of hearing of the Rule the learned Deputy Attorney-General produced the departmental file before us from where it appeared that the declaration of price submitted by the petitioner about its products as per rule 3(2) of the VAT Rules, 1991 on 11-4-94 was accepted by the relevant authority.

11. VAT Rules, 1991 have been framed for the purpose of carrying out the provision of VAT Act, 1991 and for levying and collecting VAT from the industrial concern/manufacturer and also from the persons rendering service. Rule 3(1) of the said rules provides that the registered person shall submit a declaration in form Mushak 1 to the Divisional Officer declaring the price of its product/products and from the date of declaration of the said price the registered person shall have to pay VAT on the product. Sub-Rule (2) of Rule 3 of the VAT Rules further provides that in case of necessity to change the declaration of price, the Registered person may file a new declaration before 7 working days to the Divisional Officer declaring the new price for the product and the Divisional Officer of VAT would immediately inform the concerned circle superintendent and the computer cell of the Commissioner’s office about the particulars of the change of price of the product, Sub-rule 3 of Rule 3 further provides that the Divisional Officer, Circle Superintendent or any other VAT Officer empowered by the Commissioner after investigating and on surveying the market and on the basis of the materials if finds that the price declared by the registered industrial concern/person is much less than the price of the other similar products for which VAT has been paid less, then the divisional officer after giving reasonable opportunity of hearing to the registered industrial concern manufacturer may fix reasonable price of the product on the basis of the materials and in that case the VAT will be payable from the date of declaration of the price submitted by the registered manufacturer. In the instant case as we find from Annexures-C and C-1 that declaration of price as provided in sub-rule 2 of rule 3 of the VAT Rules, 1991 was submitted on 11-4-1994 and then on 1-7-1997 and the specific case of the petitioner is that as per declaration filed by it on the said dates it had assessed and paid VAT regularly and the payment of VAT was audited but no objection was raised at any time. During the hearing of the case we also asked the learned Deputy Attorney-General to ascertain as to whether except the declaration submitted by the petitioner on 11-4-1994 and on 1-7-1997 as admitted by the Department in the demand notices vide Annexures-C, C-1 and H, whether any other declaration was submitted by the petitioner but the learned Deputy Attorney-General has failed to produce any paper before us to show that except the declaration submitted by the petitioner on 11-4-1994 and 1-7-97 any other declaration under Sub-Rule 2 of Rule 3 of the VAT rules 1991 was submitted. Rather as stated earlier we found that declaration submitted by the petitioner in 1994 was accepted by the VAT authority. Since the respondents have failed to produce any paper to show that except the declaration submitted by the petitioner on 11-4-1994 and on 1-7-1997 any other declaration was submitted and furthermore, the specific case of the petitioner in the writ application being that the declaration submitted on 11-4-94 was accepted by the authority and they paid VAT regularly have not been denied by the respondent in the affidavit-in-opposition we have no hesitation but to accept the case of the petitioner that no declaration was filed by the petitioner in August 1995 under the provision of sub-rule 2 of Rule 3 of the VAT Rules, 1991, and accordingly we do not find any factual and legal basis for the demands of VAT made by the respondents by the impugned notice vide Annexures-C, C-1 and H from August 1995 to May 1997. Furthermore, although the respondent No.1 in his affidavit-in-opposition stated that the petitioner was given chance of hearing by giving show cause notice and it appeared before the authority on 30-4-1997, 11-5-1997 and 10-6-1997 but the said exercise is long after the declaration of price submitted on 11-4-1994 and such exercise can not justify the fixation of price of the petitioner’s product other than the price declared by it relating back to a date/period on which date or in which period no declaration of price was submitted by the petitioner as per provision of sub-rule 2 of Rule 3 of the VAT Rules, 1991.

12. Thus, we are of the view that the demands of VAT made by the respondents to the tune of Taka 1,14,28,688.75 for the period from August May 1997 vide Annexures-C, C-1 and H fixing the price of the petitioner’s product at the enhanced rate other than the rate declared by it are ex facie illegal and without jurisdiction. As to the submission made by the learned Deputy Attorney-General on the maintainability of the writ petition, in view of the provision of appeal as provided in rule 42 of the VAT Act, 1991, we are of the view that since the respondents did not dispute the fact that the declaration of price was filed on 11-4-1994 and the same was accepted by the authority and that the petitioner had paid VAT regularly on the basis of said declaration no further fact is required to be determined and furthermore, the question involved in this application as discussed above being purely questions of law and the impugned demands being ex facie illegal we hold that in the facts and circumstances of this case this writ petition is maintainable. So far the declaration of the price of the petitioners product dated 1-7-1997 and 15-4-98 and the price fixed by the VAT authority are concerned as submitted by the learned Advocate for the petitioner, we are not at all required to decide anything upon the same as no Rule has been issued concerning the declaration of price of the products as per the said declarations and the fixation of the price by the VAT authorities. From the Rule issuing order it is apparent that Rule has been issued about the demands of VAT made by the VAT authority for period from August, 1995 to May 1997 vide Annexure-C, C-1 and H that is the letters issued by the Assistant Commissioner VAT, Mymensingh dated 7-7-97 and 14-7-97 and the letter dated 11-9-2000 issued by the Deputy Commissioner, Customs, Excise and VAT, Mymensingh respectively. However, if the petitioner has any grievance about the fixation of price of its products by the VAT authority other than the rate of price declared by it on 1-7-97 and 15-4-98 it may seek appropriate relief as per law. In the result, the Rule is made absolute without any order as to costs and the impugned decisions and demands of VAT as contained in the letters dated 7-7-97 and 14-7-97 (Annexure-C and CI) and the letter dated 11-4-2000 (Annexure-H) from the petitioner to the tune of Taka 1,14,28,688.00 for the period from August, 1995 to May, 1997 are declared to have been made without lawful authority and are of no legal effect.

Ed.

Oram Limited Vs. Reckitt Benckiser (Bangladesh) Limited (Borhanuddin, J.)

Case No: Arbitration Appeal No. 03 OF 2014

Judge: Borhanuddin, J. And Sardar Md. Rashed Jahangir, J.

Court: High Court Division,

Advocate: Mr. M. Moyeen A. Firozee with Mr. Muhammad Rafiul Islam and Mr. Md. Muazzem Hossain, Advocates,

Citation: 2020(1) LNJ

Case Year: 2019

Appellant: Oram Limited

Respondent: Reckitt Benckiser (Bangladesh) Limited

Subject: Arbitration Act (I of 2001) Section 55(1)

Delivery Date: 2020-07-13

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

Borhanuddin, J.

And

Sardar Md. Rashed Jahangir, J.

Judgment on

27.10.2019

}

Oram Limited

. . . Appellant

-Versus-

Reckitt Benckiser (Bangladesh) Limited

. . . Condemned-Convict

Arbitration Act (I of 2001)

Section 55(1)

Any claim made beyond the period of limitation prescribed by the Limitation Act will be barred by limitation and the arbitral tribunal will have to reject such claim as barred by limitation. ...(25)

Arbitration Act (I of 2001)

Section 27

The purpose of section 27 of the Act is to determine the date of commencement of arbitration proceedings relevant mainly for deciding whether the claim of the claimant is barred by limitation or not. Statement of claim is not a reference. Statement of claim is elaboration and narration of evens initiated by the notice for arbitration. ...(27)

Arbitration Act (I of 2001)

Sections 12 and 27

A dispute arises where there is a claim and a denial and repudiations of the claim. The existence of dispute is essential for appointment of an arbitrator under section 12 or a reference under section 27 of the Arbitration Act. There should be dispute and there can only be dispute when a claim is asserted by one party and denied by other on whatever grounds. ...(30)

Arbitration Act (I of 2001)

Section 43(1)(b)(iii)

Impugned award passed by the majority Arbitrators of the Tribunal is not legal and binding upon the parties in view of the fact that one of the Arbitrator was completely left out of the process of consultation before making, finalizing and even delivering/passing the award. The spirit and intent of the Arbitration Act, 2001, is to ensure that the arbitration proceeding including the making, signing and passing of the award is conducted by effective participation of all the members of the Tribunal but in the instant case there was a clear deviation there from. There may be an award by the majority but such an award has to be made after taking due consideration of the views and opinion of the dissenting arbitrator. The award dated 12.10.2014 is not a valid award because the arbitrators did not act in a concerted manner nor there was any unanimous and effective participation in consulting and deliberating upon the award to be made, which is against the intent and purport of the Arbitration Act and the respondent’s arbitrator was totally and completely excluded from the process of deliberations before the award was made and thus the majority arbitrators failed to do justice to the parties which is against the public policy of Bangladesh and thus this has vitiated the entire award and as such the impugned award has been set aside by the court below considering the provision of section 43 (1)(b)(iii) of the Arbitration Act, 2001. ...(36)

State of Orissa vs. Kalinga Const. Co. (P) Ltd AIR 1971 SC 1646, State of trading Corp. of India Ltd. vs. Toepfer Int. Asia Pte Ltd (2014) (5) RAJ 301 (Del)(DB), Rising Sun Traders Ltd. vs. Chittagong Port Authority (1991) 43 DLR1, Helm Dungenmittel Gmbh vs. BCIC (2011) 16 BLC 783, Puri Construction Co vs. Union of India AIR 1989 SC 777, I.O.C Ltd. vs. Devi Constructions, Engineering Contractors 2009(4) (RAJ) 584 (Mad)(DB), Santa Sila Devi vs. Dhirendra Nath Sen AIR 1963 SC 1677, Sundarshan Trading Co. vs. Govt. of Kerala AIR 1989 SC 890, Himachal Pradesh State Electricity Board vs. R.J. Shah (1999) 4 SCC 2014, Saudi Airlines vs. Saudi Services Co. 15 BLD (AD) 2010, Natha Subramanayam Chettey vs. Menta Subramaniah AIR 1959 AP 1999 (DB), Virendra Singh Co. vs. Central Warehousing Corp (1989)(1) Arb.L.R 27, R.S. Builders vs. Delhi Development Authority AIR 1995 Del 10, M.P.Housing Board vs. Progressive Writers & Publishers (2009) 5 SCC 678, Municipal Corp. of Delhi vs. Jagan Nath Ashok Kumar AIR 1987 (SC) 2316, State of Rajsthan vs. Puti Constructions Engineers (1994) 6 SCC 485,Organising Committee Commonwealth Games 2010 vs. Pico Deepali Overlays Consortium and another 2016 (2) Arb. L.R 209, Msk Projects (I) (JV) Ltd. vs. State of Rajasthan and another 2011 (3) Arb. L.R 119 (SC), David Taylor & Son Ltd. vs. Barnett Trading Co. (1953) 1 WLR 562, Nathani Steel Ltd. vs. Associated Constructions 1995 Supp (3) SCC 324, Goyal MG Gases Ltd vs. Double Dot Finance Ltd 2009 (2) Arb. L.R. 655, Ennore Port Limited vs. Skanska Cementation India Limited and others 2008 (2) Arb LR 598 (Madras), State of Tripura vs. Sabitri Salt Supplier 2007 (3) Arb. L.R 519 (DB), Chief Engineer, Military Engineer Services, Chennai vs. K.V. Narayann and another 2000 (supp) Arb. L.R 504 (Madras), Indian Oil Corporation vs. LLOYDS Steel Industries Ltd 2007 (4) Arb L.R 84(Delhi) and the case of Ennnore Port Limited vs. Skanska Cementation India Limited and others 2008 (2) Arb. L.R 598 (Madras), Milkfood Ltd vs. GMC Ice Cream (P) Ltd, Chittagong Port Authority vs. Ananda Shipyard and Slipways Ltd 63 DLR 234, Saudi (BD) Services Ltd vs. Saudi Airlines ref.

Mr. M. Moyeen A. Firozee with

Mr. Muhammad Rafiul Islam and

Mr. Md. Muazzem Hossain, Advocates

. . . For the Appellant

Mr. Ahsanul Karim with

Mr. Aminul Hoque with

Ms. Farzana Khan with

Mr. Majibul Haque Bhuiyan and

Mr. M. Abdul Qaium, Advocates

. . . For the Respondent

JUDGMENT

Borhanuddin, J. This appeal is directed against the judgment and order dated 04.03.2014 passed by the learned District Judge, Dhaka, in Arbitration Miscellaneous Case no. 661 of 2007 setting aside the arbitral award dated 12.10.2006 passed by the majority decision of the arbitral Tribunal.

2. Facts relevant are that the parties of the appeal executed two agreements on 30.10.1991, one for Joint Venture and another for Manufacturing; By executing agreement for Joint Venture, the parties agreed that they shall enter into a separate agreement for manufacturing and purchasing of Mosquito Coils, 2^nd party shall offer and 1^st party shall buy 5000 ordinary shares at a face value of TK. 100 per share to a total of TK. 500,000.00 from the 1^st party’s retaining earnings and further agreed that the 2^nd party shall guarantee a minimum of 10% dividend per annum on the shares that shall be purchased by the 1^st party, production and purchase of the products shall be governed as per provision of the manufacturing agreement, said agreement contained arbitration clause; Accordingly, the parties executed manufacturing agreement as buyer and supplier for the product containing the provision for arbitration; On 27.05.2004 the appellant herein i.e. 2^nd party supplier of the manufacturing agreement served a legal notice through it’s lawyer to the 1^st party buyer claiming loss of Tk. 15,51,41,000/- for the period between 2001 to March, 2004; Respondent 1^st pay replied to the notice denying claim of the appellant 2^nd party on 02.06.2004; Then the appellant 2^nd party through it’s lawyer served notice for arbitration on 03.07.2004 claiming the amount mentioned in the legal notice dated 27.05.2004; Thereafter both the parties appointed their arbitrator and the arbitrators nominated Chairman of the Tribunal. In the Tribunal, the appellant 2^nd party as claimant filed statement of claim asserting (a) Loss of Earnings at Tk.15,55,12,975.00 from the year 1993 to June, 2005 (b) Loss of Investment for the period between 1993 and 2003 at Tk. 3,25,26,656.00 (c) Loss of Opportunity at Tk. 4,00,00,000/- (d) Consequential Loss at Tk. 2,25,00,000/-, (e) Loss of Goodwill at Tk. 7,50,00,000/- and Interest pendalite at the rate of 18% on the total amount of Tk. 32,55,39,631/-.

3. The respondent 1^st party filed defence to the statement of claim stating that claim is time barred and frivolous one and also beyond the jurisdiction of Tribunal since the reference by way of notice for arbitration is for the period from 2001 to 2004 for an amount of Tk. 15,50,41,000/- including interest @ 18% per annum; After hearing the parties and perusing the evidence, arbitral tribunal awarded loss of earnings at Tk. 9,91,09,150/- from the year 1993 to 2005 based on lifting plan agreed upon by the parties and also awarded Tk. 20,00,000/- as loss of investment for the period 1993 to 2003 with pendalite interest @ 15% from the date of reference i.e. 01.07.2005 till realization of the amount by majority decision dated 12.10.2006 discarding other claims of the appellant-claimant. Dissenting award has been passed by another arbitrator on 19.12.2006 rejecting claim of the claimant.

4. Challenging majority decision of the arbitral-tribunal, the respondent as petitioner filed Arbitration Miscellaneous Case No. 661 of 2007 in the court of learned District Judge, Dhaka, under section 42 read with section 43 of the Arbitration Act for setting aside the award dated 12.10.2006 passed through majority decision. The claimant-respondent contested the suit by filing written statement. Upon hearing the parties and assessing evidence on record, learned District Judge set aside the award dated 12.10.2006 vide his judgment and order dated 04.03.2014.

5. Having aggrieved by and dissatisfied with the judgment and order, opposite party of the miscellaneous case as appellant moved before this court under section 48 of the Arbitration Act.

6. Mr. M. Moyeen A. Firozee, learned advocate appearing for the appellant submits that the judgment and order passed by the learned District Judge is solely based on merit of the award which is beyond the scope of section 42 and 43 of the Arbitration Act and as such the same is liable to be set aside. He also submits that the court below passed the impugned judgment and order by setting aside the arbitration award considering the legal notice as the terms of reference and thus arrived at an erroneous finding that the Tribunal passed it’s award beyond the terms of reference which is a complete misconstruction and misconception of law since the terms of reference for arbitration is always set by the Tribunal as such impugned judgment and order is liable to be set aside. He next submits that the court below passed the impugned judgment and order holding that the majority arbitrators of the Tribunal passed the award without discussing and consulting with the dissenting arbitrator and thus arrived at a wrong finding that the award is against the public policy which is not based on law and fact as such impugned judgment and order is liable to be set aside. He again submits that the court below erroneously arrived at a finding that the Tribunal did not provide an opportunity to the respondent to cross examine witnesses and thereby respondent failed to present it’s case properly without considering the law that the Tribunal is well within it’s capacity to decide the procedural and evidential issues as such impugned judgment and order is liable to be set aside. He also submits that learned District Judge set aside the award on the finding that in absence of any breach of contact the award is contrary to the provisions of section 73 of the Contract Act without taking into consideration that the Tribunal by a majority decision after detailed discussions determined respondent is in breach of contract which is final and determination of correctness of Tribunal’s finding on the issue of breach of contract is beyond the scope of the court below under section 42 and 43 of the Arbitration Act as such impugned judgment and order is liable to be set aside. He further submits that court below set aside the arbitral award erroneously holding that the award is barred by limitation without considering that the plea of limitation raised by the respondent was rejected by the Tribunal after thorough and meticulous discussions as such finding of the court below is beyond the scope of section 42 and 43 of the Arbitration Act and liable to be set aside. He lastly submits that impugned judgment and order is otherwise bad in law as the arbitration is an alternative process meant for faster dispute resolution but due to delay and reconsideration of settled issues in frivolous manner deliberately destroying the purpose of Arbitration Act, 2001 as such impugned judgment and order is liable to be set aside. In support of his submissions, learned advocate referred to the case of State of Orissa-Vs- Kalinga Const. Co. (P) Ltd., reported in AIR 1971 SC 1646; the case of State trading corp. of India Ltd. –Vs- Toepfer Int. Asia Pte Ltd., reported in (2014)(5) RAJ 301(Del)(DB); the case of Rising Sun Traders Ltd. –Vs- Chittagong Port Authority (1991), reported in 43 DLR1; the case of Helm Dungenmittel Gmbh-Vs- BCIC, reported in (2011) 16 BLC 783; the case of Puri Construction Co.-Vs- Union of India, reported in AIR 1989 SC 777; the case of I.O.C. Ltd. -Vs- Devi Constructions, Engineering Contractors, reported in 2009(4) (RAJ)584(Mad)(DB); the case of Santa Sila Devi-Vs-Dhirendra Nath Sen, reported in AIR 1963 SC 1677; the case of Sundarshan Trading Co.-Vs- Govt. of Kerala, reported in AIR 1989 SC 890; the case of Himachal Pradesh State Electricity Board –Vs- R.J. Shah, reported in (1999) 4 SCC 214, the case of Saudi Airlines-Vs- Saudi Services Co., reported in 15 BLD(AD) 2010; the case of Natha Subramanayam Chettey-Vs- Menta Subramaniah, reported in AIR 1959 AP 1999 (DB); the case of Virendra Singh Co.-Vs- Central Warehousing Corp., reported in 1989(1) ArbLR 27; the case of R.S. Builders -Vs- Delhi Development Authority, reported in AIR 1995 Del 10; the case of M.P. Housing Board -Vs- Progressive Writers & Publishers, reported in (2009) 5 SCC 678; the case of Municipal Corp. of Delhi -Vs- Jagan Nath Ashok Kumar, reported in AIR 1987 (SC) 2316 and the case of State of Rajsthan -Vs- Puti Constructions Engineers, reported in (1994)6 SCC 485.

7. On the other hand, Mr. Ahsanul Karim learned advocate appearing for the respondent submits that the court below framed the issue that whether the award is correct and lawful and be sustained, the very purpose of the issue is to determine whether the award is correct and lawful within the grounds permissible under sections 42 and 43 of the Arbitration Act and the court has jurisdiction and power to see that whether the Arbitral Tribunal is wrong in it’s conclusion and to arrive at a correct finding the court can see the materials on record. In support of the impugned judgment and order, learned advocate submits that the learned District Judge after assessing the evidence on record correctly arrived at a finding that the claim is time barred and beyond the scope of the submission to arbitration, against the public policy since the award passed without discussion by all the arbitrators, there is nothing in the manufacturing agreement that the buyer is bound to place an order for certain quantity of the product in a year and the award passed contrary to the provisions of section 73 of the Contract Act. He again submits that by notice for arbitration the claimant-appellant referred the dispute to the arbitral tribunal for the period between 2001-2004 for an amount of taka 15,51,40,000/- but the tribunal dealt with dispute not contemplated by or not following the terms of the arbitration and contains decision on matters beyond the scope of submission to arbitration as such the award is liable to be set aside under section 43(1)(b)(ii)(iii). He next submits that legal notice of the claimant-appellant dated 27.05.2004 is the basis of dispute as spelt out in the notice for arbitration under section 27 of the Arbitration Act which claimed for the period between 2001 to June, 2004 and the claimant served the notice for the period knowing fully well that any claim before 2001 is time barred as such the learned District Judge arrived at a correct finding that the award passed by the Tribunal treating the period from 1993 to 2005 is barred by limitation. Continuing his argument, learned advocate submits that under section 55 of the Arbitration Act, the Limitation Act 1908 shall apply to the arbitration proceedings as it applies in the proceedings before a civil court and for the purpose of Arbitration Act, arbitration shall be deemed to have commenced upon issuance of notice under section 27 of the Arbitration Act as such there is nothing to interfere with the impugned judgment and order. He again submits that the Joint Venture Agreement had no relation whatsoever with the manufacturing agreement and each of the agreement was distinct and for separate purpose and relationship between the parties so far the manufacturing agreement is concern shall be governed by the terms and conditions as contained in the manufacturing agreement and thus the majority arbitrators illegally on their own set out new terms in the agreement since the Joint Venture Agreement being an independent agreement for all purpose by no means can be said to be collateral or supplemental or dependent to the manufacturing agreement as such learned District Judge justly and legally set aside the award. He further submits that neither the Joint Venture Agreement nor the manufacturing agreement impose any obligation on the respondent to take supply of any specific quantity of goods or any goods at all unless required by the respondent as such findings of the majority arbitrators that the nature of the present case is one of continuing contract and limitation act is not applicable in the present case is not correct proposition of law. He also submits that it is apparent from the majority decision as well as dissenting one that there was no discussions amongst the arbitrators before the award was made and as such learned District Judge correctly arrived at a finding that the award is in conflict with the public policy of Bangladesh and liable to be set aside under section 43(1)(b)(iii) of the Arbitration Act. In support of his submissions, learned advocate referred to the case of Organizing Committee Commonwealth Games 2010-Vs- Pico Deepali Overlays Consortium and another, reported in 2016(2)Arb LR209; the case of Msk. Projects (I)(JV) Ltd. -Vs- State of Rajasthan and another, reported in 2011(3)Arb LR 119 (SC); David Taylor & Son Ltd. -Vs- Barnett Trading Co. (1953) I WLR 562; the case of Nathani Steel Ltd. -Vs- Associated Constructions-1995 Supp (3) SCC 324; the case of Goyal MG Gases Ltd. -Vs- Double Dot Finance Ltd, reported in 2009(2) Arb. L.R. 655; the case of Ennore Port Limited –Vs- Skanska Cementation India Limited and others, reported in 2008 (2) Arb LR 598(Madras); The case of State of Tripura -Vs- Sabitri Salt Supplier, reported in 2007(3) Arb LR 519(DB); The case of Chief Engineer, Military Engineer Services, Chennai -Vs- K.V. Narayann and another, reported in 2000(supp) Arb LR 504(Madras); the case of Indian Oil Corporation -Vs- LLOYDS Steel Industries Ltd., reported in 2007(4)Arb L.R. 84(Delhi) and the case of Ennore Port Limited-Vs- Skanska Cementation India Limited and others, reported in 2008(2)Arb LR598(Madras).

8. In support of their contention, learned advocate for the parties file separate written submission.

9. Heard learned advocate for the appellant and the respondent. Perused paper books and the papers/documents contained therein as well as citations referred by learned advocates for the parties.

10. Admittedly, both the parties executed two agreement on 30.10.1991. At first, executed an agreement of Joint Venture and thereafter the agreement for manufacturing.

11. Salient features of the Joint Venture Agreement are:

I. Oram was not in a position to utilize its full installed capacity of its manufacturing plant for want of necessary working capital and lack of modern manufacturing and marketing techniques.

II. The parties to enter into a separate agreement for manufacturing and purchasing of MMC.

III. Oram to transfer 5,000 preferential shares at the face value of TK.100/- per share to Reckitt.

IV. Oram to pay guaranteed minimum 10% dividend per annum on the shares purchased by Reckitt.

And Salient features of the Manufacturing Agreement are:

a. The buyer has obtained from its parent company and in possession of the formula and manufacturing process of Mortein Mosquito Coil.

b. The buyer is the Registered user of the trademark “Moretin”

c. The Supplier has a registered manufacturing plant for Mosquito Coil at BSCIC Industrial Estate, Mymensingh.

d. The buyer has agreed with the Supplier that the supplier shall manufacture MMC in its factory and sell to the buyer upon the terms and conditions of the agreement.

12. It is clear from the conditions set forth in the agreements that Oram was under obligation to manufacture, process and pack the product in accordance with specification of manufacturing and packing formula from time to time supplied to them by the Reckitt which was the property of the Reckitt, Oram was prohibited to manufacture or pack the product without consent of the Reckitt and the Oram would provide all base materials specified in schedule 1 of the agreement and the Reckitt would provide the active/additives as mentioned in the schedule II. Amongst the conditions, clause 2 of the manufacturing agreement is vital which is reproduced below:

“2. The Buyer and the Supplier shall from time to time discuss the Buyer’s future requirements of the products specifying quantities and delivery dates. The Buyer and the Supplier shall then negotiate and mutually agree prices and terms of payment. The Buyer and the Supplier shall then confirm the order and acceptance in writing. The existing agreed prices and terms of payment is mentioned in schedule-III.”

13. The core object/ingredient of the manufacturing agreement is order and supply by the buyer and supplier. Contents of clause 2 shows that the supplier comply with the order from time to time as and when order would be placed by the buyer. This conduct of the contracting parties occupy the central stage through clause 2 of the agreement.

14. The offer to buy through placement of order and the acceptance by the manufacturer to supply is intervened by modalities of placement of order and acceptance of supply in clause 2 of the manufacturing agreement. The modalities enumerate several volitional reciprocal events. Sequence wise those events are (A) buyer and seller discuss (i) from time to time (ii) future requirement (iii) specifying quantities and (iv) delivery date. (B) Buyer and seller then negotiate and mutually agree (i) price (ii) terms of payment (C) Buyer then (i) confirm order (ii) seller confirm acceptance to supply in writing.

15. Unless both seller and buyer have gone through these series of sequential contingenal events, there is no static obligation upon buyer to place order for pre-fixed quantity. Likewise the supplier does not acquire any contractual right to supply any static quantity and seek any enforcement, unless the offer to buy and acceptance to manufacture and supply, reach finality through the modalities. The supplier has no contractual right to claim supply pre-fix quantity of suppliers choice. Nor the buyer suffers any contractual obligation to place order or buy any static quantity of suppliers choice.

16. Above contigental events never have been taken place. Those events were never ever resorted to from either side. It is very significant that the supplier from the date of execution of the agreement never ever raised any objection or demanded implementation and performance by the buyer of the contingents/events of clause 2. Pursuant to clause 2 of the agreement the supplier never demanded to the buyer to implement and perform the events/contingents as stipulated in clause 2. So, it cannot be said under any legal proposition that clause 2 survives and remains implementable. The supplier seems to have forgotten that every contingent of clause 2 are to be performed jointly. For instance, the first contingent i.e. time to time discussion. It is never an unilateral performance. Both supplier and buyer together have to discuss. In the absence of any discussion initiated by the buyer, the supplier is also under contractual obligation under the clause to initiate discussion. The clause is very clear.

17. It is assumed that the business between the parties was not smooth one which is evident from the letters exhibited by the parties. Still then the supplier-appellant never raised a dispute before serving legal notice dated 27.05.2004. It is apparent from the legal notice that the appellant for the first time raised the dispute alleging breach of contract. We are quoting relevant portion from the legal notice dated 27.05.2004 by which for the first time the appellant raised a dispute:

6. That suddenly from 2001 your company in breach of contract, existing practice dropped its order from about 14000 cartons/outers per month to 9000 cartons/outers per month. In 2002 your company ordered only about 2,000 cartons/outers per month.

7. …………………………

8. …………………………

9. …………………………

10. …………………………

11. That your company by way of using persuasive words and showing a friendly and honest attitude assured our client that they will lift all the products manufactured by our client and our client being assured by your company increased its production capacity from 7000 outers to 15000 outers per month after investing 1,50,00,000.00 (Taka one core fifty lac only).

The claim of loss due to your company’s failure to lift the products produced by our client is shown below:

Period	Built-up capacity	Lifted only by RCBL	Remaining capacity	Loss amount	Damages or losing goodwill	Total loss amount
2001	(15000X12)= 1,80,000 cartons/outers	1,05,065 cartons/outers	74,935 cartons/outers	Tk. 89,92,200/-
2002	(15000X12)= 1,80,000	19,403 cartons/outers	1,60,597 cartons/outers	Tk. 192,71,640/-
2003	(15000X12)= 1,80,000	1,847 cartons/outers	1,78,143 cartons/outers	Tk. 2,13,77,160/-
Jan to March 2004	(15000X3)= 45,000	NIL	45,000	Tk. 54,00,000/-
Jan 2001 to March 2004	5,85,000 cartons/outers	1,26,325	4,58,675 cartons/outer	Tk. 5,50,41,000/-	1,00,00,000
				Dividend @ 10# debited from the outstanding bill of our client 50000 + 50000		55041000+ 10,00,00,000+ 1,00,000/- = 15,51,41,000/-

18. The respondent replied to the legal notice denying claim of the appellant and then the appellant sent notice for arbitration dated 03.7.2004 referring the legal notice which runs as under:

“A dispute has arisen between our client and you arising out of and/or relating to the above mentioned agreements.

Reference may be made to our legal notice dated 27.05.2004 wherein, we on instruction of our client Oram Ltd. SEL centre, 7^th floor, 29 West Panthapath, Dhaka a claim for Tk.15,50,41,000/- (fifteen core fifty lac and forty one thousand) including interest at the rate of 18% per annum was made and to be so paid as compensate within 3 days from the date of receipt of the letter for the loss it incurred due to your company’s willful breach of the aforesaid agreements.

But the aforementioned amount has not been paid by your company as yet. On 03.06.2004 your company through Barrister Omar Sadat sought 15 days time to respond to the same. Though more than a month has elapsed but there is no response from your company, apart from total silence. In the event of such dispute, the above agreements provides for settlement of the same by way of arbitration.”

19. So, it is apparent that the dispute referred by the notice for arbitration is the dispute setforth in the legal notice for the period 2001 to June, 2004. Thereafter, the parties nominated their arbitrator and arbitral tribunal was constituted comprising three members, Chairman and two arbitrators. Before issuance of the aforesaid legal notice, the appellant never ever raised a dispute for breach of contract and claimed loss/compensation. When the tribunal passed order to file statement of claim then the claimant i.e. the appellant herein claimed loss of earnings from the year 1993 to June, 2005 alongwith loss of investment, loss of opportunity, consequential loss, loss of goodwill and interest at the rate of 18% on the amount.

20. The particulars of claim as stated in the statement of claim are as follows:

1. Actual Loss

(a) Loss of earnings

Sl.	Year	Outers supposed to be lifted by the respondent	Outers actually lifted by the respondent	Outers the respondent failed	Value of the outers not lifted
1	1993	1,20,000	84,080	35,920	Tk. 48,49,200/-
2	1994	1,20,000	91,715	28,285	Tk. 38,18,475/-
3	1995	1,80,000	1,29,547	50,453	Tk. 67,10,249
4	1996	1,80,000	1,40,943	39,057	Tk. 51,94,581/-
5	1997	1,80,000	1,15,718	64,282	Tk. 85,49,506/-
6	1998	1,80,000	84,870	94,130	Tk. 1,26,52,290/-
7	1999	1,80,000	68,052	1,11,948	Tk. 1,48,89,084/-
8	2000	1,80,000	1,39,143	40,857	Tk. 54,33,981/-
9	2001	1,80,000	98,011	81,989	Tk. 1,09,04,537/-
10	2002	1,80,000	9,030	1,70,970	Tk. 2,27,39,010/-
11	2003	1,80,000	586	1,79,414	Tk. 2,38,62,062/-
12	2004	1,80,000	Nil	1,80,000	Tk. 2,39,40,000/-
13	2005 (Till June)	90,000	Nil	90,000	Tk. 1,19,70,000/-
	Grand Total				Tk. 15,55,12,975/-

(b) Loss of investment between 1993-2003

Sl.	Head of Investment	Amount
1.	Factory Building	Tk. 70,81,246/-
2.	Plant & Machineries	Tk. 1,65,55,977/-
3.	Drying tray	Tk. 35,22,630/-
4.	Furniture and fixture	Tk. 3,50,175/-
5.	Office equipment	Tk. 4,69,857/-
6.	Electric installations	Tk. 5,27,090/-
7.	Electric installations	Tk. 3,45,219/-
8.	Heating system	Tk. 27,88,745/-
9.	Gas installation	Tk. 2,76,449/-
10.	Transportation	Tk. 5,82,300/-
11.	Crockery	Tk. 27,468/-
Total		Tk. 3,25,26,656/-

II. Loss of opportunity:

On account of loss of opportunity due to the damage to “Sunflower” brand owned by the climate, the claimant claims

Tk. 4,00,00,000/-

III. Consequential loss:

On account of consequential loss, the claimants claim

Sl.	Description	Amount
1.	The interest paid Bangladesh Shilpa Bank	Tk. 1,10,00,000/-
2.	Repayment made against the loan taken as working capital from Janata Bank	Tk. 70,00,000/-
3.	Damage of raw material procured to use as inert for MMC	Tk. 45,00,000/-
Total		Tk. 2,25,00,000/-

IV. Loss of Goodwill:

Taka. 7,50,00,000/-

V. Interest: “Pendalite” At the rate of 18% on the awarded amount Recapitulation of claims:

Sl.	Head of Claim	Amount
1.	Actual loss (Loss of earnings) Actual loss (Loss of investments	Tk. 15,55,12,975/- Tk. 3,25,26,656/-
2.	Loss of opportunity	Tk. 4,00,00,000/-
3.	Consequential loss	Tk. 2,25,00,000/-
4.	Loss of goodwill	Tk. 7,50,00,000/-
Total		Tk. 32,55,39,631/-

21. In the statement of claim the appellant claimed loss of earnings from the year 1993 to June, 2005 which is beyond the scope of the reference to arbitration vide notice for arbitration.

22. Now the question is what is reference to arbitration. In the case of Goa -Vs- Praveea Enterprise (Civil Appeal No. 4987 of 2011), Indian Supreme Court observed:

“Reference to arbitration describe various Acts. Reference to arbitration can be by parties themselves or by an appointing authority named in the arbitration agreement or by a court on an application by a party to the arbitration Act.”

…………………………………………………………………………

“Reference to arbitration can be in respect of all disputes between the parties or all disputes regarding a contract or in respect of specific enumerated disputes. Where all disputes are referred, the arbitrator has the jurisdiction to decide all disputes raised in the pleadings (both claims and counter claims) subject to any limitations raised by the arbitration agreement. Where the arbitration agreement provides that all disputes shall be settled by arbitration but excludes certain matters from arbitration, then the arbitrator will exclude matters and decide only those disputes which are arbitrable. But where the reference to the arbitrator is to decide specific disputes enumerated by the parties/court/appointing authority, the arbitrator’s jurisdiction is circumscribed by the specific reference and the arbitrator can decide only those specific disputes.”

…………………………………………………………………………

“After a dispute arises between the parties, they enter into an arbitration agreement to refer that specific dispute to arbitration. In such an arbitration, the arbitrator cannot enlarge the scope of arbitration by permitting either the claimant to modify or add to the claim or the respondent to make a counter claim. The arbitrator can only decide the dispute referred to him/them, unless parties again agree to refer the additional disputes/counter claims to arbitration and authorize the arbitrator to decide them.”

Arbitration Appeal No. 03 OF 2014

Oriental Bank Ltd. Vs. A B Siddiq (Ludu), 13 BLC (AD) (2008) 144

Case No: Civil Petition for Leave to Appeal No. 817 of 2005

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Citation: 13 BLC (AD) (2008) 144

Case Year: 2008

Appellant: Oriental Bank Ltd.

Respondent: A B Siddiq (Ludu)

Subject: Artha Rin, Writ Jurisdiction,

Delivery Date: 2007-11-4

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Md. Ruhul Amin, CJ.
MM Ruhul Amin, J.
Md. Joynul Abedin, J.
Md. Abdul Matin, J.

Oriental Bank Ltd. former Al-Baraka Bank Bangladesh Ltd.
.........Petitioner
Vs.
A B Siddiq (Ludu)
................Respondents

Judgment
November 4, 2007.

Constitution of Bangladesh, 1972
Article 102
Artha Rin Adalat Ain, 2003
Section 41
It appears that the judgment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of filing the appeal in time the petitioner manufactured letter dated 26-1-2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable.

Cases Referred to-
Secretary Ministry of Works vs. Hasner Jahan Ahad 6 BLC (AD) 111; Chittagong Engineering and Electric Supply Co Ltd vs. Income Tax Officer 22 DLR (SC) 443; Bangladesh, Ministry of Works vs. Md Jalil 49 DLR (AD) 26.

Lawyers Involved:
Sayyid Shahid Hussain, Advocate instructed by Habibur Rahman Miah, Advocate-on-Record—For the Petitioner.
Abdus Samed, Senior Advocate instructed by Firoz Shah, Advocate-on-Record—For Respondent No. 1.
Not Represented—Respondent Nos. 2-3.

Civil Petition for Leave to Appeal No. 817 of 2005.
(From the judgment and order dated 27-4-2004 and 2-4-2005 passed by the High Court Division in Writ Petition No. 2235 of 2000).

JUDGMENT

Md. Abdul Matin J.

1. This petition for leave to appeal is directed against the judgment and order dated 27-4-2004 and 2-4-2005 passed by the High Court Division in Writ Petition No. 2235 of 2000 discharging the Rule by majority decision and refusing to interfere with decree of Artha Rin Adalat No. 4, Dhaka dismissing the suit as against guarantor respondent No.1.

2. The facts, in short, are that the petitioner "The Oriental Bank Ltd.’' (previously Al-Baraka Bank, Bangladesh Limited) is a Banking Company incorporated in Bangladesh and carries on baking business, among other places, at the aforesaid address.

3. The respondent No. 2 is the owner of a business firm MS Salmon Trading who opened Current A/C No.100874 with the petitioner Bank. The said account was operated by respondent No. 1 AB Siddiq (Ludu) under a power of attorney (Letter of Mandate) on behalf of respondent No. 2.

4. In 1988 respondent Nos.1 and 2 applied to the petitioner Bank for granting LC opening facilities for importing fax machines from Singapore at 10% margin. The petitioner vide letter dated 14-7-1988 granted the facility on the terms and conditions that the facility must be secured by personal guarantee of respondent No. 1 AB Siddiq and on the basis there of respondent Nos. 1 and 2 opened LG dated 21-7-1988 and 23-7-1988 for US$ 78,000 and US$ 14,950 totaling US$ 92,950 for importing the said fax machines. To secure the entire facilities respondent No.1 executed Letter of Guarantee, Demand Promissory Note, which were exhibited in the trial Court. Besides those, respondent No.1 executed all charge documents/ BM agreement.

5. Although two LCs were opened for 143 fax machines, only 120 machines were shipped and arrived at Chittagong Port. To avoid demurrage and pilferage in the port the petitioner requested respondent Nos.1 and 2 to release the goods on urgent basis upon payment of all dues of customs and other authorities. But respondent No. 1 by letter dated 19-9-1988 requested the petitioner to release the said 120 fax machines on payment of customs duty, sales tax and other charges against facility like Murabaha. Respondent No. 1 also undertook to release the said goods within 90 days from the petitioner's custody. The petitioner accordingly released the goods by paying all dues and also 90% of the LC money to the supplier.

6. The respondent No.1 having failed to release the goods on payment of the petitioner's dues applied to the petitioner to release 34 machines against trust receipt dated 22-10-1988, 28-104988 and 20-10-1988. Respondent No.1 released total 10+20 machines at the record price of Taka 4, 06,743 and Taka 8, 13,485 against trust receipts on the conditions that the respondent No.1 shall pay the sale price within 30 days or return the goods. But the respondent No. 1 in violation of the terms of trust receipt did not deposit the same price except Taka 8, 77,500. Respondent No.1 having thus committed criminal breach of trust the Bank instituted criminal case against him which is still pending for disposal. The respondent Nos. 1 and 2 thus having failed to release the goods from the godown of the petitioner's Bank and failed to pay the balance price of the goods received under Letter of Trust the petitioner filed Money Suit No. 53 of 1995 in 4th Artha Rin Adalat, Dhaka for recovery of Taka 93,63,623.50 as on 30-7-1995.

7. The respondent No. 2, proprietor of Salmon Trading, who was defendant No. 1 in the suit, filed written statement and denied the liability saying that respondent No. 1 AB. Siddiq i.e. defendant No. 2 requested him to allow respondent No. 1 to import fax machine through the aforesaid account of respondent No. 2. It is respondent No. 1 who requested the bank to release the goods on payment of all duties against Murabaha Commercial facility, 30 fax machines were also taken delivery by respondent No.1 from the bank under trust receipts. So, the entire liability goes to respondent No.1.

8. The respondent No.1 the guarantor of the liability filed separate written statement. The respondent did not deny the assertion of the petitioner bank that he (respondent No. 1) executed letter of Guarantee, Demand Promissory Note and other documents jointly securing the liability to the Bank. He also did not deny that on his request the LG was opened, goods were released on payment of duties and some machines were handed over to him against trust receipts.

9. The Artha Rin Adalat decreed the suit only against the respondent No. 2 and dismissed the suit against the respondent No.1 the guarantor. As against the judgment and decree though an appeal was the alternative remedy but instead the writ petition was filed before the High Court Division and Mr. Justice Shamim Hasnain made the Rule absolute holding that the Court ought to have decreed the suit against the guarantor and the writ petition is maintainable and, on the other hand, the other Judge/Mr. Justice Imman Ali discharged the Rule holding that the writ petition is not maintainable and the petitioner did not come to the High Court Division with clean hands as the letter dated 26-1-2000 is a manufactured one. The matter was referred to the 3rd Judge and Mr. Justice Ali Asgar Khan by his judgment and order dated 2-4-2005 discharged the Rule on the ground that the petitioner bank did not come to the Court with clean hands.

10. The learned Counsel appearing for the petitioner submits that the High Court Division acted illegally in discharging the Rule and not decreeing the suit against respondent No.1 who admittedly secured the liability by executing letter of guarantee Annexure-'D' (Exhibit 3) DP Note Annexure-D(1)(Exhibit 4)(Gha) and all other charge documents as found by the majority Judges.

11. The learned Counsel further submits that the discharge of Rule by the High Court Division is illegal in view of the fact that majority Judges of the High Court Division had found that "the writ petition filed by the petitioner Bank under Article 102 (2) (a) is quite maintainable in the facts and circumstances of the case and also in view of the principles as enunciated in 6 BLC (AD) 221, 22 DLR (SC) 443, 49 DLR (AD) 26 and having further found that the learned Subordinate Judge/ Artha Rin Adalat acted against law in not decreeing the Suit against respondent No. 1 (the guarantor) who admittedly signed the Letter of Guarantee, DP Note, charge documents, etc.

12. The learned Counsel lastly submits that the facts stated in the writ petition that the Bank could not file appeal in time due to wrong information of the conducting lawyer vide Annexure-"K" and the statement of the Bank having not been disputed/denied by respondent No. 1, the findings of the majority Judges of the High Court Division that the letter Annexure-K is manufactured or the Bank has not come in writ jurisdiction with clean hands are erroneous.

13. Heard the learned Counsel and perused the judgment of the High Court Division and other papers on record.

14. It appears that the judgment of the Artha Rin Adalat was appealable under the Artha Rin Adalat Ain, 2003 and instead of filing the appeal in time the petitioner manufactured letter dated 26-1-2000 in order to justify their failure to file appeal in time. The remedy in the writ jurisdiction is an equitable one and to seek the same one must come with clean hands and since two Judges of the High Court Division held that the petitioner did not come to the High Court Division with clean hands have rightly found the writ petition as not maintainable.

15. This finding of the High Court Division does not suffer from any infirmity calling for interference by this Division.

In such view of the matter we find no merit in this petition which is accordingly dismissed.

Ed.

Oriental Bank Ltd. Vs. Sitara Siddiq, 59 DLR (2007) 573

Case No: Civil Revision No. 4105 of 2005

Court: High Court Division,,

Advocate: Sayyed Shah Hussain,,

Citation: 59 DLR (2007) 573

Case Year: 2007

Appellant: Oriental Bank Ltd.

Respondent: Sitara Siddiq

Subject: Artha Rin,

Delivery Date: 2007-08-15

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Arayesuddin J
Mashuque Hosain Ahmed J

Oriental Bank Ltd.
………………..Defendant-Petitioner
Vs.
Sitara Siddiq
………………..Plaintiff-Opposite-Party

Judgment
August 15, 2007.

Artha Rin Adalat Ain, 2003
Section 18
As per section 18 of the Artha Rin Adalat Ain, 2003, no case filed in the Artha Rin Adalat can be transferred to any other Court for analogous hearing or any other suit can be brought to this Court for analogous hearing with the suit filed in the Artha Rin Adalat and it is settled law that Artha Rin Adalat is not a full-fledged Civil Court. It has been created by special enactment only for recovery of the defaulted loan. It has got no power to adjudicate any other matters.

Cases Referred To-
PP Gupta vs. East Asiatic Co. AIR 1960 (Allahabad), 184; Mahangu Prasad Sah vs. Pravag Sah, iAIR 1972 (Gauhati), 40 and Smt. Naufati vs. Mehma Singh, AIR 1972 (Punjab & Haryana), 421.

Lawyers involved:
Sayyid Shahid Hussain with Rani Akhter, Advocates—For the Petitioner.
Rafiqul-ul-Huq with Enayet Hussain Khan, Md Ziaul Haque, Advocates—For the Opposite Party.

Civil Revision No. 4105 of 2005.

JUDGMENT

Md. Arayesuddin J.

1.         At the time of issuance of the Rule, though the LC records were called for, but the same has not yet been arrived. During hearing of the Rule, it was felt that the LC records are not necessary to hear and dispose 6f the Rule. So, the Rule be treated as ready and the same be taken up for hearing.

2.         Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and order, dated 27-8-2005, passed by the Additional District Judge 5th Court Dhaka, in dismissing Civil Revision No. 518 of 2004 and "confirming the order, dated 24-10-2004, passed by the Joint District Judge, 5th Court, Dhaka in Title Suit No. 209 of 2002, should not be set aside.

3.         Fact, in short, for the disposal of the Rule is that opposite party as plaintiff instituted Title Suit No. 209 of 2002 in the Court of the Joint District Judge, 5th Court, Dhaka, for declaration that she has no liabilities on account of Messrs Pan Asia Lines Ltd and a further declaration that she is entitled to get back her documents of properties as, described in the plaint. Further, she prayed for mandatory injunction against the present petitioner bank for giving delivery of the original documents to her. In this suit, the petitioner bank appeared and the suit came at the stage of pre-emptory hearing and deposition of the opposite party as plaintiff of Title Suit No. 209 of 2002 was recorded in part. In the meantime, petitioner bank on 6-3-2004 filed Artha Rin Suit No. 34 of 2004 in the Artha Rin Adalat, 4th Court Dhaka, against Messrs Pan Asia Carrier, SA Panama and some other foreign companies of Panama and Singapore including Messrs Pan Asia Lines Ltd. Thereafter, in Title Suit No. 209 of 2002 this petitioner filed a petition under section 10 read with section 151 of the Code of Civil Procedure to stay all the further proceedings of Title Suit No. 209 of 2002 till disposal of Artha Rin Suit No. 34 of 2004. The trial Court on 24-10-2004 heard the learned Advocates of both the parties and rejected the petition. Thereafter the petitioner preferred Civil Revision No. 518 of 2004 before the District Judge, Dhaka, which was heard by the Additional District Judge, 5th Court Dhaka, who by his judgment and order, dated 27-8-2005, rejected the civil revision against which the present petitioner moved this Court under section 115(4) of the Code of Civil Procedure and obtained the Rule.

4.         In this Rule, the main point for decision is whether Title Suit No. 209 of 2002 can be stayed or not or the order of simultaneous hearing can be passed.

5.         On behalf of the petitioner, the learned Advocate Mr. Sayyid Shahid Hussain, submitted that the matter in issue in Title Suit No. 209 of 2002 and that of Artha Rin Suit No. 34 of 2004 are the same and if those suits are tried by two different Courts, there is every apprehension for conflicting decisions. So, he submitted that to avoid conflicting decision it is desirable that both the suits be tried by the same Court. He submitted that since the Artha Rin Suit cannot be transferred to any other Court, the Court of the Artha Rin Adalat being the Joint District Judge, Title Suit No. 209 of 2002 can be transferred to the Court of the Artha Rin Adalat with a direction to try the suit as Joint District Judge simultaneously with Artha Rin Suit No. 34 of 2004 pending in his Court. He has further submitted that though in section 10 of the Code of Civil Procedure it has been mentioned that the later suit should be stayed, but for the sake of administering justice the former suit can be stayed, if circumstances demand so. He has further submitted that when the trial Court has rejected the petition filed by the petitioner under section 10 of the Code of Civil Procedure, he could have given that relief under section 151 of the Code of Civil Procedure by staying Title Suit No. 209 of 2002 pending in his Court, but he has not done so. As in both the Courts two suits over the same cause of action are pending, there is every likelihood for conflicting decision. Therefore he submitted for simultaneous trial of both the suits. To that effect, he has relied on the case of PP Gupta vs. East Asiatic Co. in Civil Revision No. 218 of 1957 reported in AIR 1960 (Allahabad), 184; the case of Mahangu Prasad Sah and another vs. Pravag Sah and others in Civil Revision No. 364 of 1971 reported in AIR 1972 (Gauhati), 40 and also the case of Smt. Naurati and others vs. Mehma Singh in Civil Revision No. 364 of 1971 reported in AIR 1972 (Punjab & Haryana), 421. In those Civil revisions their Lordships have discussed the provision of section 10 along with section 151 of the Code of Civil Procedure and examined two suits pending in two civil Courts, but in the present case, one suit is pending before the Civil Court and another in the Artha Rin Adalat. So, the learned Advocate submitted that if Title Suit No. 209 of 2002 be withdrawn and placed under the jurisdiction of the Joint District Judge who is working as Artha Rin Adalat, Court No. 4, Dhaka, directing him to try both the suits simultaneously, there would be no chance of conflicting decisions. Referring section 18 of the Artha Rin Adalat Ain the learned Advocate for the petitioner submitted that in that section analogous hearing has been barred and the Artha Rin Suit cannot be transferred to any other Court for hearing with any other suit and also it cannot be stayed. Therefore, the learned Advocate for the petitioner submitted for withdrawing Title Suit No. 209 of 2002 from the Court of the Joint District Judge, 5th Court, Dhaka, and to transfer the same to the Court of the Artha Rin Adalat who is also a Joint District Judge and to try the same simultaneously for avoidance of conflicting decision.

6.         On behalf of the opposite party, the learned Senior Advocate Mr. Rafiq-ul-Huq submitted that provision of section 10 of the Code of Civil Procedure is distinct and clear. As per provision of section 10 of the aforesaid Code subsequent suit is to be stayed. He submitted that opposite party instituted the suit long before two years in 2002, but the petitioner bank filed Artha Rin Suit No. 34 of 2004 long after two years. Therefore, he submitted that as per the provision of section 10 of the Code of Civil Procedure, Artha Rin suit ought to have been stayed. Since there is bar in section 18 of the Artha Rin Adalat Ain, he submitted that there is no bar to proceed both the suits. To this effect, he submitted that Title suit No. 209 of 2002 is at the peremptory stage and the evidence of opposite party No. 1 has been recorded in part. At this stage, by obtaining the Rule, the petitioner has stayed the further proceeding of Title suit No. 209 of 2002, otherwise this suit would have been disposed of. So, he submitted that there is no bar to continue the two suits. He further submitted that opposite party has filed Title suit No. 209 of 2002 for getting back the documents of his properties alleging that she is not liable for payment of the loan money. So, he submitted that this suit has no nexus with the realisation of loan money and the Artha Rin suit has scope to proceed to realise the loan money. He has further submitted that Artha Rin Adalat is not a Civil Court. It is a Civil Court of limited jurisdiction only to realise the loan money. It has got no jurisdiction to decide any other matter. So, he submitted that there is no bar to continue both the suits as usual. By referring the judgment of Civil Petition for Leave to Appeal No. 738 of 2004 which has been disposed of on 5-7-2004, he submitted that respondent No. 1 filed Title suit No. 208 of 2007 which was renumbered as Title Suit No. 197 of 2001 against this petitioner for declaration that the plaintiff had no liability to the petitioner bank for any loan amount and the so called memo of deposit of title dead dated 17-3-1988 was forged, concocted and illegal and the plaintiff is entitled to get back the title deed along with other supporting documents lying in the bank and prayed for a decree of Taka 75,00,000 as compensation against the petitioner bank. The trial Court decreed the suit in part without any order as to costs against which there was appeal. The appeal was dismissed and this petitioner bank was directed to return the scheduled documents. He submitted that the Appellate Court by its judgment and decree, dated 12-4-2004, affirmed the judgment of the learned Joint District Judge which has been reported in 56 DLR 588. The Appellate Court held that "jurisdiction of the Artha Rin Adalat has been created with a particular object for recovery of the loan and to that effect it is deemed to be a Civil Court, but it has not all the powers of the civil Court. "In the civil petition for leave to appeal the matter has been dealt with elaborately and the leave petition filed by the petitioner has been rejected. So, the learned Advocate for the opposite party submitted that by filing a subsequent suit in the Artha Rin Adalat, the bank wants to delay the matter. In such circumstances, he forcefully submitted that under no circumstance Title Suit No. 209 of 2002 can either be stayed or any order of simultaneous hearing be passed. Therefore, he submitted for discharging the Rule with costs.

7.         We have perused the impugned order, dated 27-8-2005, passed by the learned Joint District Judge, 5th Court, Dhaka, in Civil Revision No. 518 of 2004 and that of the order, dated 24-10-2004, passed by the learned Joint District Judge, 5th Court, Dhaka in Title suit No. 209 of 2002 and the citations referred by both the parties. As per section 18 of the Artha Rin Adalat Ain, 2003, no case filed in the Artha Rin Adalat can be transferred to any other Court for analogous hearing or any other suit can be brought to this Court for analogous hearing with the suit filed in the Artha Rin Adalat and it is settled law that Artha Rin Adalat is not a full-fledged Civil Court. It has been created by special enactment only for recovery of the defaulted loan. So, it has got no power to adjudicate on any other matters. The suit filed by the opposite party in the Court of the Joint District Judge, 5th Court, Dhaka, relates to his entitlement to return back the documents of her properties together with declaration that she is not liable for the loan money to the bank as described in the plaint together with mandatory injunction directing the bank to give delivery of the original documents with compensation which is purely under the jurisdiction of the Civil Court and this point was also agitated in Civil Petition for Leave to Appeal No. 738 of2004 before the Hon'ble Appellate Division and their Lordships upheld the decision of the High Court Division and that of the trial Court. Therefore, we are unable to agree with the learned Advocate for the petitioner for invoking jurisdiction under section 115 of the Code of Civil Procedure to transfer Title Suit No. 209 of 2002 to the Artha Rin Adalat and to try it simultaneously with Artha Rin Suit No. 34 of 2004 as Joint District Judge. In such circumstances, we find that the learned Joint District Judge and the learned Additional District Judge committed no error in rejecting the petition of the petitioner bank filed under sections 10/151 of the Code of Civil Procedure. In view of that we find no merit in the Rule.

Accordingly, the Rule is discharged without any order as to costs. Since in Title Suit No. 209 of 2002 plaintiff has been examined as PW 1 in part, the trial Court is directed to dispose of the suit within three months from date of receipt of the Judgment.

Ed.

Osarunnessa Vs. Bangladesh and others, 1 LNJ (2012) 538

Case No: Writ Petition No. 4038 of 2011

Judge: Md. Ashfaqul Islam,

Court: High Court Division,,

Advocate: Mr. Harunur Rashid,,

Citation: 1 LNJ (2012) 538

Case Year: 2012

Appellant: Osarunnessa

Respondent: Bangladesh and others

Subject: Artha Rin, Writ Jurisdiction,

Delivery Date: 2012-03-12

HIGH COURT DIVISION
(Special Original Jurisdiction)

Md. Ashfaqul Islam, J.
And
Mustafa Zaman Islam, J.

Judgment
12.03.2012

Osarunnessa

...Petitioner

Vs.

Bangladesh and others

...Respondents

Constitution of Bangladesh, 1972
Article 102
Artha Rin Adalat Ain (VIII of 2003)
Section 34 (12)
Admittedly, the petitioner was arrested on 5.6.2008 vide order dated 30.4.2008 and was released from civil imprisonment after serving more that six months on 27.11.2008. According to the provisions of section 34(12) of the Artha Rin Adalat Ain, 2003 the petitioner cannot be put to civil imprisonment for the second time and hence the impugned order is ex-facie illegal without any lawful authority and is of no legal effect. …(6 and 8)

Mr. Harunur Rashid

---For the petitioner

None appears

---For the respondents

Writ Petition No. 4038 of 2011

Judgment

Md. Ashfaqul Islam, J:

        At the instance of the petitioner Osarunnessa, this Rule Nisi was issued calling upon the respondents to show cause as to why the Order no.17 dated 25.01.2011 passed by the learned Judge, Artha Rin Adalat No.1, Dhaka in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B in violation of Section 34 of the Artha Rin Adalat Ain, 2003 and order 21 Rule 37 and section 56 of the Code of Civil Procedure shall not be passed without lawful authority and is of no legal effect.

2.   The background leading to the Rule, in short, is that the husband of the petitioner approached the respondent Bank for House Building Loan and on 24.12.1990 Tk. 75,000/- sanctioned for staff house building loan and on 28.10.1993 Tk. 20,0000/- for motorcycle loan. The petitioner is the guarantor of the loan. Petitioner gradually paid loan for Tk. 22,674/- but due to various reasons failed to adjust dues of the Bank. Respondent No. 3 Manager Janata Bank, Local Office, Dulkusha, Dhaka on 29.4.2003 filed a suit before the learned Artha Rin Adalat No.1, Dhaka, for recovery of money inclusive interest amounting to Tk. 14,05,888/- and the said suit was registered as Artha Rin Suit No. 423 of 2004.

3.   The suit was decreed exparte in the year 2004 followed by Artha Execution Case No.87 of 2005. In the Execution Case property was sold in auction on 07.03.2007. The Bank then filed second Execution Case No. 195 of   2007 (Annexure-A). In that Second Execution case on 25.01.2011 the Bank filed an application praying for issuing warrant of arrest of the petitioner for realizing all dues and the Court issued warrant of arrest as prayed on 25.01.2011 (Annexure-B and B1).

4.   The petitioner was arrested on 05.06.2008 vide order No. 8 dated 3.4.2008 and thereafter on 27.11.2008 the Court released the petitioner since she served out more than six months civil imprisonment (Annexure-D). Thereafter by the impugned order No. 17 dated 25.01.2011 again warrant of arrest has been issued against the petitioner against which the petitioner moved this Division and obtained the present Rule and stay.

5.   Mr. Md. Harunur Rashid, the learned counsel appearing on behalf of the petitioner after placing the petition, impugned order and other Annexures with the petition mainly submits that the impugned order is exfacie illegal and not sustainable under law since the petitioner had already been arrested pursuance to Artha Rin Adalat’s order which she served out and hence as per section 34(12) of the Ain she cannot be put to civil imprisonment again.

6.   The Rule is not opposed by the respon-dents. However, Mr. S.M. Moniruzzaman, the learned counsel candidly submits that the law is very much clear on this issue and the petitioner on that score cannot be put to civil imprisonment for the second time.

7.   Heard the learned counsels for both sides and considered their submissions. Section 34(12) states as follows:

“এই আইনের অধীনে কোন ডিক্রী বা আদেশ বাস্তবায়নের উদ্দেশ্যে পরিচালিত জারী মামলায়, জারী মামলার সংখ্যা একাধিক হইলেও কোন একজন দায়িককে গ্রেফতার করিয়া পরিপূর্ণ মেয়াদের জন্য একবার দেওয়ানী কারাগারে আটক রাখা হইলে, তাহাকে পুনর্বার গ্রেফতার করা ও দেওয়ানী কারাগারে আটক করা যাইবে না।"

8.   Admittedly the petitioner was arrested on 5.6.2008 vide Order No.8 dated 30.4.2008 and was released after serving more than six months on 27.11.2008 (Annexure-D). Therefore, as per section 34(12) the petitioner cannot be put to civil imprisonment for the second time and for that reason we hold that the order impugned against is exfacie illegal and without any lawful authority and is of no legal effect.

9.   With these observations the Rule is made absolute. The order No. 17 dated 25.11.2011 passed by the Artha Rin Adalat No.1 in Artha Execution Case No. 195 of 2007 issuing warrant of arrest (Annexure-B(i) is declared to have been passed without lawful authority and is of no legal effect and hereby set aside.

      Communicate this order at once.

Ed.

Osman Gazi Chowdhury Vs. Artha Rin Adalat, Dhaka and another, 2016(1) LNJ 167

Case No: Writ Petition No. 3363 of 2013

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Mr. S. N. Goswami,Mr. Mohammad Saiful Karim ,,

Citation: 2016(1) LNJ 167

Case Year: 2016

Appellant: Osman Gazi Chowdhury

Respondent: Artha Rin Adalat, Dhaka and another

Subject: Artha Rin,

Delivery Date: 2016-01-27

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Md. Emdadul Huq, J
And
Muhammad Khurshid Alam Sarkar, J.

Judgment on
27.01.2016

Osman Gazi Chowdhury

. . .Defendant-Petitioner

-Versus-

Artha Rin Adalat, 4^th Court, Dhaka and another

. . . Plaintiff-Respondents

Artha Rin Adalat Ain (VIII of 2003)
Section 19(1)
From the language employed in Section 19(1) of the Ain, 2003, the literal meanings of the language gives us two situations, namely; on the date of hearing if the defendant does not register his/her presence before the Adalat by filing Hazira (আদালতে অনুপস্থিত থাকিলে) or if after recording his/her presence in paper, she is found absent when the case is taken up for hearing (ডাকিয়া বিবাদিকে উপস্থিত পাওয়া না গেলে), to proceed towards disposal of a case exparte. However, the spirit that derives from the provision of Section 19(1) of the Ain, 2003 is that if the Adalat finds that the manner and style of conducting the case by the defendant is to avoid or refrain from hearing (শুনানী না করা), the Adalat should go for exparte disposal of the suit.... (15)

Artha Rin Adalat Ain (VIII of 2003)
Section 6(4)
Section 6(4) of the Ain, 2003 mandates the Adalat to dispose of an Artharin suit exparte or instantly by simply considering the plaint (prepared under affidavit) or written statement (made with affidavit) and the documents filed therewith, upon treating all of them as substantive evidence and, thus, pleadings with affidavits is the focal-point of this provision and any formal examination of witnesses has got less emphasis in the Ain, 2003. ...(23)

Artha Rin Adalat Ain (VIII of 2003)
Section 6(4)
The expression “হলফনামাযুক্ত আরজী বা জবাব” incorporated in Section 6(4) of the Ain, 2003 has been used in the context of “কোন মামলা একতরফাসূত্রে বা তাৎক্ষনিক নিষ্পত্তির ক্ষেত্রে”...(27)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(6)
For application of the above expression in an exparte disposal situation, when the word “বা” (or) would be read as the disjunctive one, an unworkable situation would arise for the Adalat. Because, in that event the Adalat shall have to consider either the plaint only or the written statement only in the backdrop of impossibility of disposal of a suit solely on the basis of written statement. Furthermore, disposal of a suit solely based on the written statement will render the provisions of Section 19(6) of the Ain, 2003 nugatory....(28)

Artha Rin Adalat Ain (VIII of 2003)
Sections 6(4) and 19(1)
If the word “বা” (or) employed in Section 6(4) of the Ain, 2003 is read as a conjunctive word in an exparte disposal situation, it will mean that even if the defendant is absent, the Adalat must consider both the plaint and written statement making the provisions of Section 19(1) of the Ain 2003 redundant, for, this Section requires exparte disposal (একতরফাসূত্রে ) in the absence of defendant. . . . (30)

Artha Rin Adalat Ain (VIII of 2003)
Sections 6(4) and 19(6)
By Section 6(4) and 19(6) of the Ain, 2003 the Legislature has created a device for the Adalat that if the parties to the Artharin suit fail to produce witnesses for the purpose of proving their cases by way of formally stating it on the witness box, as in an ordinary Civil Case, or they do not want to face the hassle of attending the Court premise for giving evidence, they will be allowed to prove their respective cases by way of submitting documents. While Section 6(4) of the Ain, 2003 directs that in the event of absence of the defendant, the Adalat would dispose of a suit upon considering the plaint or/and written statement together with documentary evidence, Section 19(6) provides that due to the plaintiff’s absence the Adalat cannot dismiss the suit, for, the law obliges the Adalat to consider the merit of the plaint with affidavit and also the documents filed in the Adalat....(33)

Artha Rin Adalat Ain (VIII of 2003)
Sections 6(4) and 19(1)
The legislative intention behind enactment of this special law is to set up special Courts for recovery of the Banks’/Financial Institutions’ loan from the defaulters. For achieving the target, the Legislature has sought to incorporate a short-cut procedure in disposing of the Artharin Suits and avoid lengthy procedures as being followed in the ordinary civil Courts. With this aim, the Legislature has provided the procedure for the Adalat to be followed in an exparte disposal scenario or instant disposal situation. An exparte disposal may be done, both, before and after receiving the written statement. If the suit is decreed exparte before receiving the written statement, then there is no difficulty in reading and applying the provisions of Sections 6(4) and 19(1) of the Ain, 2003. However, once the Adalat receives the written statement and the defendant’s inaction or failure to pursue the suit compels the Adalat to opt for exparte disposal, then the question comes for consideration as to whether the Adalat should consider the written statement....(34)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(1)
When in an Artharin suit the defendant-side would not participate in the hearing, what would the Adalat do with the written statement? The normal presumption would be that by his non-participation in the hearing he was not placing before the Adalat his claims, which were raised in the written statements. And keeping this scenario in mind, the Legislature made the provision in Section 19(1) of the Ain, 2003 for the Adalat to dispose of the suit exparte (একতরফাসূত্রে). The expression “একতরফাসূত্রে” in Section 19(1) of the Ain, 2003 has been purposefully employed debarring the Adalat from considering the defendant’s case....(35)

Artha Rin Adalat Ain (VIII of 2003)
Section 6(4)
The meaning of the expression “হলফনামাযুক্ত আরজী বা জবাব” employed in Section 6(4) of the Ain, 2003 is that the plaint (made with affidavit) is to be considered and where necessary the written statement (made under affidavit) is also to be considered. Hence, in Bangla the following expression “হলফনামা যুক্ত আরজী এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত জবাব” would sound more appropriate....(36)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2), 19(3) and 19(4)
The Legislature has eased the task of restoration of an Artharin suit for an alleged loan-defaulter by incorporating the provisions of Section 19(2), 19(3) and 19(4). Because of the percentage of deposit being only 10% of the decretal amount, the time-limitation of filing the application being sufficient (30 days from the date of knowledge of passing the exparte decree plus further 15 days for deposit) and the mode of payment being flexible, for, it is permissible to pay in cash or submit bank draft, pay order, cheque and any other negotiable instrument, it would not be irrational to view these conditions as affordable for an aggrieved party....(38)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)
It is the clear intention of the Legislature that a party to an Artharin Suit if aggrieved by a decree must prefer an appeal. Since the Ain, 2003 is a special law with an overriding provision over other laws and has prescribed a special procedure; there is no scope to bypass the appellate forum, if the forum under Section 19(2) of the Ain, 2003 against an exparte decree is already not availed of by the party. . . .(41)

Constitution of Bangladesh
Article 102
Artha Rin Adalat Ain (VIII of 2003)
Sections 19(2) and 41
The only exception is that before passing the decree, if a party to an Artharin Suit feels aggrieved by an order, writ jurisdiction may be invoked as has been held in the case Sonali Bank Ltd Vs Asha Tex International 20 BLC 185. However, after passing a decree, if the party of an Artharin Suit, becomes aggrieved by any type of order, there is no forum other than preferring an appeal under Section 41 of the Ain, 2003.... (42)

Constitution of Bangladesh
Article 102
When an aggrieved party to an Artharin suit, when comes with clean hands and his move is a bonafide one directed at examining a clear-cut factual issue or legal point and not to frustrate the Artharin suit, and files a writ petition by making a 50% down payment of the decretal amount to the lender Bank/financial institution and furnishes detailed reasons for not being able to prefer an appeal within the prescribed time, in the aforesaid rarest of rare situations, this Court by exercising its ‘special jurisdiction’ under Article 102(2)(a)(ii) of the Constitution may entertain the application, for, being barred by limitation there is no other forum for the aggrieved party. . . . (45)

Suggestions for Artharin Adalats of Bangladesh:
The overall suggestion for the Adalat is that the Ain, 2003 is aimed at expeditious disposal of the Bank’s/Financial Institution’s claim for recovery of money which is, in fact, the money of the State. If the Adalat, after putting its best effort to serve the notice upon the defendant/s, is satisfied that the notice has been served properly, it should proceed towards the disposal of the suit. The Adalat should bear in mind that while there are unscrupulous defendant/s to delay the disposal of the Artharin suits and thereby frustrate the scheme of the Ain, 2003, however, there are also bonafide defendant/s who might be victimised by the Adalat’s inconsiderate hurriedness. The Adalat being in a better position to assess the above issues/factors from the manner and style of conducting the case by the defendant-side, it should pass appropriate order as per the demand of the circumstances invoking its inherent power under Section 57 of the Ain, 2003. The bottomline for the Adalat is to ensure fair justice for the parties to the suit and, in doing so, when the Adalat shall endeavour to protect the interest of a clean and bonafide defendant, the Adalat shall also not allow the cunning loan-defaulters to abuse the process of the Adalat. To save a vulnerable defendant from the unreasonable demand of the Banks/Financial Institutions and also to save the defendant’s property from selling at a shockingly low-price, which very often takes place in connivance with the staff of the Bank/Financial Institution and the concerned Court staff, if needed, the Adalat may exercise its inherent power recording the detailed reasons to substantiate its order.    . . .(50)

Observations for Law Commissions:
The Commission may make the following proposals to the Legislature;
(1)        In order to remove the ambiguity in the phrase “হলফনামাযুক্ত আরজী বা জবাব”, the same may be replaced by the following expression “হলফনামাযুক্ত আরজী এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত জবাব” with an “Explanation” of the word “যথাযথক্ষেত্রে” to be incorporated underneath of the Sub-Section 6(4) of the Ain, 2003. “যথাযথক্ষেত্রে” means when the Adalat is required to dispose of an Artharin Suit under the provisions of Section 19(6) of the Ain, 2003 in the absence of the plaintiff and defendant, it shall consider the case of the defendant as well, if the written statement (made under affidavit) and any other documents have been filed.
(2)        The word ‘একতরফাসুত্রে, as occurs in section 19(1) of the Ain, 2003 should be given a definition clarifying that when the defendant upon appearing in the suit files written statement and after framing issue does not attend hearing, the Adalat shall consider only the case of the plaintiff and ignore the written statement and issues framed.
(3)        Section 19 (1) of the Ain, 2003 should prescribe two more reasons for proceeding with exparte disposal. The first reason should be “ধারা ৭ এর কার্যক্রম সম্পনণ হওয়ার পর যদি পরবর্তী নির্ধারিত তারিখে বিবাদী না আসে” and, thereafter, the present two reasons would come and, then, the last reason should be incorporated in the following phrase “মামলার যে কোন পর্যায়ে যদি বিবাদী পরপর তিন বার সময়ের আবেদন করে”. . . .(51)

Observation for JATI
The Judicial Administration Training Institute (JATI) should undertake a training program for the learned judges who are presiding over the Artharin Adalats with an aim to familiarize them with the interpretation of the different provisions of the Ain, 2003 so as to ensure that all the Adalats of the land use and take uniform meaning of the provisions of the Ain, 2003 and thereby help minimize preferring appeal or filing writs against the orders passed by them. . . . (52)

Mr. S.N. Goswami, Advocate

......For the petitioner

Mr. Mohammad Saiful Karim with
Mr. Md. Musharraf Hussain, Advocates

....For respondent no. 2

Writ Petition No. 3363 of 2013

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:

This Rule was issued calling upon the respondents to show cause as to why the exparte decree dated 22.04.2012, passed by the Artha Rin Adalat, 4th Court, Dhaka in Artha Rin Suit no. 124 of 2010, should not be declared to have been passed without lawful authority and is of no legal effect.

Succinctly, the facts of the case, as stated in this writ petition, are that on 04.08.2010, the ICB Islami Bank Ltd (hereinafter referred to as respondent no. 2 or “the Bank”) as plaintiff instituted Artharin Suit no. 124 of 2010 against the present petitioner impleading him as defendant for realization of the Bank’s loan of Tk. 8,10,09,374/- (eight crore ten lacs nine thousand three hundred and seventy four). The petitioner-defendant, upon receipt of the summons, appeared before the Artharin Adalat (hereinafter referred to as “the Adalat”) on 03.11.2010 and, then, on 09.03.2011 he filed a written statement. Thereafter, a mediator was appointed by the Adalat on 28.03.2011, and 31.05.2011 was fixed for submission of the report by the Mediator. Thereafter, on 24.08.2011 the issues for the suit were framed, fixing 25.09.2011 for peremptory hearing. On 20.03.2012 the P.W.1 Abu Jafar gave his deposition before the Adalat and 10.04.2012 was fixed for further hearing when the petitioner made a prayer for adjournment of the hearing, but the Adalat rejected the prayer and ordered that the exparte judgment and decree shall be pronounced on 22.04.2012. On the said scheduled date for pronouncement of exparte judgment and decree, the petitioner came up with an application for recalling the previous order, by which the date for delivery of exparte judgment and decree was ordered. But the Adalat rejected the petitioner’s application and decreed the suit exparte.

Being aggrieved with the said order of exparte judgment and decree dated 22.04.2012, the petitioner by invoking Article 102 of the Constitution approached this Court and obtained the instant Rule.

The Rule is contested by the Bank (respondent no. 2) through filing an affidavit-in-opposition containing typical general denials to the statements of the writ petition. The Bank’s core contention is that the petitioner’s intention was to protract disposal of the suit by making prayer for adjournments one after another before the Adalat and the suit has rightly been decreed exparte.

Mr. S. N. Goswami, the learned Advocate appearing for the defendant-petitioner, takes us through the impugned judgment and decree dated 22.04.2012 intandem with the plaint, written statement and the application for recalling the order fixing the date of delivery of exparte judgment and submits that the impugned exparte judgment and decree has been passed by the Adalat without applying its judicial mind inasmuch as since on the same day the petitioner filed the application for recalling the previous order with an expectation to enable him deducing his deposition, the Adalat ought to have entertained and allowed the application. He terms the Adalat’s exparte judgment and decree to be an outcome of its whimsical and arbitrary thoughts and actions given that since the said application was filed on the same day with a prayer for cross-examining the D.W.1, the Adalat could have adjudicated upon the suit justly on the basis of the witnesses’ deposition and cross-examination. He refers to the order portion of the impugned exparte decree and submits that the impugned order has been passed by the Adalat mechanically without discussing the averments of the plaint, written statement and the contention of the deposition made by the PW 1. In an effort to substantiate his submissions on this point, he places provision of Section 6(4) of the Artha Rin Adalat Ain, 2003 (Ain, 2003) and submits that whenever any Adalat would consider to pass an exparte decree, it is incumbent upon the Adalat that it shall go through the averments made in the plaint and the written statement and also examine the documents submitted by the parties. He alleges that the Adalat, without going through the plaint, the written statement and without looking at the documents and papers submitted before it, hurriedly disposed of the case by pronouncing an exparte decree simply by making a cursory findings that those have been considered. In support of his above submissions, the learned Advocate for the petitioner refers to the cases of Pabna Mental Hospital Vs Tossadek Hosain & others 13 BLC(AD)91, Rupali Bank Ltd and others Vs Tafazal Hossain and others 44 DLR (AD) 260 and Arfanuddin Akand and another Vs Artharin Adalat 15 BLT(HCD) 243.

With regard to the issue of maintainability of this writ petition on the ground of bypassing the appellate forum, Mr. Goswami refers to the case of (i) Collector of Customs, Chittagong Vs M. Hannan 10 BLD (AD) 216, (ii) Tafijul Huq Sarker Vs Bangladesh 4 MLR (AD) 19, (iii) Bangladesh Vs Iqbal Hasan Mahmud Tuku 60 DLR (AD) 147 and (iv) Mayor, Chittagong City Corporation Vs Md. Jahangir Faruk and other 14 BLT (AD) 24 and submits that in spite of the availability of forum of appeal, the present writ petition is to be held maintainable on the strength of the ratio laid down in the afore-referred cases.

By making the aforesaid submissions, the learned Advocate for the defendant-petitioner prays for making the Rule absolute.

Per contra, Mr. Mohammad Saiful Karim, the learned Advocate appearing on behalf of respondent no. 2 (plaintiff), at the very outset, places the provisions of Section 19 (2), 19(3) & 19(4) of the Ain, 2003 and submits that the writ petition is not maintainable as the petitioner did not avail himself of an opportunity for restoration of the suit by depositing 10% of the decretal amount within 30(thirty) days before the concerned Adalat No. 4, Dhaka. He next reads Section 41 of the Ain, 2003 and submits that he had also the option to prefer an appeal against the impugned judgment and decree and could have agitated all the issues before the appellate Court. By taking us through the order sheets of the Adalat, he seeks to impress upon this Court that the petitioner was never willing to proceed with the trial of the suit as he persistently tried to prolong the disposal of the suit and finally when the learned Judge of the Adalat came to realise the ill motive of the cunning petitioner as to dillydallying the disposal of the suit, the concerned Adalat has rightly passed the exparte decree and, therefore, he submits that there is no illegality in passing the impugned order.

In support of his submissions as to non-maintainability of this writ petition, he refers to the following cases; (i) Zahirul Islam Vs National Bank 46 DLR (AD) 191, (ii) Gazi M. Towfiq Vs Agrani Bank 54 DLR (AD) 6, (iii) BADC Vs Artharin Adalat 59 DLR (AD) 6, (iv) ACC Vs Enayetur Rahman 64 DLR (AD) 14 and (v) Sonali Bank Ltd Vs Asha Tex International 20 BLC 185.

We have heard the learned Advocates for both the sides at length, perused the writ petition, the affidavit-in-opposition, examined the materials on record as well as the relevant laws and decisions, and considered the same very carefully.

The apparent legal issues require to be considered by this Court are; whether the Adalat’s decision to dispose of the suit exparte is lawful, secondly whether the petitioner’s allegation against the trial Court as to non-consideration of his written statement as well as the issues that were already framed is true, in other words, whether the trial Court has failed to apply the provisions of Section 6(4) of the Ain, 2003 in passing the impugned exparte decree and thirdly whether in the backdrop of operation of the provisions of Sections 19(2) and 41 of the Ain, 2003, the present writ petition is maintainable.

Let us first take up the above first issue as to the lawfulness of the order by which the Adalat fixed the suit for exparte hearing. In this case, it is evident from the order-sheets that the very pattern of handling the suit by the defendant compelled the Adalat to record the following order on 10.04.2012;

২৭---১০/৪/১২ --- অদ্য এফ.এইচ এর জন্য দিন ধার্য্য আছে। বাদীপক্ষ হাজির। বিবাদীপক্ষ এক দরখাস্ত দায়ের করিয়া বর্নিত কারনে সময় প্রার্থনা করিয়াছেন। শুনলাম। নথি পর্য্যালোচনায় দেখা যায় বিবাদীপক্ষ ইতিপূর্বে একাধিকবার সময় নেয়ায়, সময়ের প্রার্থনা নামঞ্জুর। এক্ষনই প্রস্তুতির নির্দেশ (ভি.ও.পি)। পরবর্তীতে বিবাদীপক্ষ কোন পদক্ষেপ নেয় নাই। আগামী ২২/৮/১২ খ্রিঃ তারিখ একতরফা শুনানী। (underlined by us)

The above order shows that the defendant’s application for adjournment was rejected as he was trying to protract the disposal of the suit by seeking repeated adjournments on different occasions and, at the stage of giving oral evidence by the DW, when the Adalat took up the suit but the defendant-side did not participate in the hearing of the case, the matter was fixed for exparte judgment. Given the above scenario, we are to look at Section 19 of the Ain, 2003, which regulates the aspect of exparte disposal of an Artharin Suit.

ধারা-১৯: একতরফা ডিত্র্রী সম্পর্কিত বিধান-
(১) মামলার শুনানীর জন্য ধার্য কোন তারিখে বিবাদী আদাল¬তে অনুপসিহত থাকিলে, কিংবা মামলা শুনানীর জন্য গৃহীত হইবার পর ডাকিয়া বিবাদীকে উপসিহত পাওয়া না গে¬¬ল, আদালত মামলা একরতফা সূত্রে নিস্পত্তি করিবে.

From the language employed in Section 19(1) of the Ain, 2003, the literal meanings of the language gives us two situations, namely; on the date of hearing if the defendant does not register his/her presence before the Adalat by filing Hazira or if after recording his/her presence in paper, s/he is found absent when the case is taken up for hearing to proceed towards disposal of a case exparte. However, the spirit that derives from the provision of Section 19(1) of the Ain, 2003 is that if the Adalat finds that the manner and style of conducting the case by the defendant is to avoid or refrain from hearing , the Adalat should go for exparte disposal of the suit.

Let us now see whether the conduct of the petitioner in dealing with the suit compelled the Adalat to go for exparte disposal. After scrutinizing the order-sheets of the suit, it transpires that the suit was registered on 04.08.2010 and when this petitioner was not appearing before the concerned Adalat, on 04.10.2010 by order no. 4 the Adalat fixed 20.10.2010 for pronouncing exparte decree of the suit. However, on 03.11.2010, the petitioner entered his appearance and filed an application, having prayed for time to submit written statement, which was allowed by the Adalat and, consequently, the suit was withdrawn from the status of exparte disposal. Since then, the petitioner sought for time on this or that plea on 3 (three) occasions (on 28.11.2010, 13.01.2011 & 08.02.2011) for filing written statement. Thereafter, in between the time of filing of the written statement (on 09.03.2011) and the framing of issues (on 24.08.2011), the petitioner applied for time on 15.06.2011 and 19.07.2011 and then the Adalat fixed a date for peremptory hearing on 15.11.2011, on which date the Bank was ready for hearing with its witness, but due to the petitioner’s adjournment application the hearing did not take place. Thereafter, on 26.02.2012, when the petitioner prayed for adjournment, the Adalat allowed it with a cost of Taka 2000/- and on 20.03.2012 the Adalat took deposition of the PW1 fixing 10.04.2012 for further hearing. This time when the petitioner again came up with an application for adjournment, the Adalat listed the suit for exparte disposal. Thus, the Adalat, in fact, showed leniency to the petitioner in the light of the fact that, as per the provisions of Sections 16 & 17 of the Ain, 2003, although it is directory, the suit ought to have been disposed of within 170 days (under Section 16 # 20 days + under Section 17 # 150 days) from the institution of the suit.

Thus, it appears that the petitioner was trying to delay the disposal of the suit from the very beginning and the Adalat decided to go for exparte disposal when the petitioner was coming up with adjournment applications with an intention to refrain from participating in the hearing of the case. It is the legal duty of the trial Court that once deposition of any witness is taken, it shall continue with the hearing of the suit without allowing any adjournment application. Therefore, we do not find any illegality in proceeding with the exparte disposal of the suit by the Adalat and, accordingly, we hold that the Adalat rightly fixed 22.04.2012 for exparte judgement.

After the foregoing conclusion as to the correctness of the Adalat in going for disposing of the suit exparte, we may now undertake the examination of the second issue as to whether the Adalat committed an error in not considering the written statement and in not disposing of the suit on the basis of the issues that had already been framed.

In order to examine the above issue, it would be profitable if we look at the impugned exparte judgement which is reproduced below:

২২/৪/১২--- অদ্য একতরফা শুনানীর জন্য দিন ধার্য্য আছে। বাদী পক্ষ ও বিবাদী পক্ষ হাজির। বিবাদী পক্ষ হলফনামা সহ এক দরখাস্ত দায়ের করিয়া মোকদ্দমা একতরফা হতে উত্তোলন করতঃ সাক্ষীকে জেরা করার অনুমতি প্রার্থনা করিয়াছেন।
বিবাদীপক্ষ অর্থর্ঋণ আদালত আইন ২০০৩ এর ৫৭ তৎসহ ১৫১ ধারার বিধান মতে হলফনামা সহ অপর এক দরখাস্ত দায়ের করিয়া বর্নিত কারনে ইসলামের শরীয়া মোতাবেক (ব্যাংকিং) ঋন আদায় করার জন্য বাদীপক্ষকে নির্দেশ প্রদানের প্রার্থনা করিয়াছেন। নথি পেশ করা হলো। শুনলাম। নথি পর্য্যালোচনায় দেখা যায় যে, ১নং বিবাদী পক্ষ গত ১৫/১১/১১ খ্রি. তারিখ, ১২/১/১২ খ্রি. তারিখ, ২৬/২/১২ খ্রি. তারিখ এবং সর্বশেষ ১০/৪/১২ খ্রি. তারিখ সময় নিয়েছেন। অদ্য দরখাস্ত দায়ের করিয়া এক-তরফা শুনানী হতে উত্তোলনের প্রার্থনা করিয়াছেন। ইতিমধ্যে আইন নির্ধারিত সময় অতিবাহিত হওয়ায় দরখাস্ত নামঞ্জুর করা হলো। বাদী পক্ষ ফিরিস্তি দ্বারা দাগজপত্র দাখিল করিয়াছেন। নথি পেশ করা হলো।
নথি একতরফা শুনানীর জন্য গৃহীত হলো। বাদীপক্ষের বিজ্ঞ আইনজীবীর বক্তব্য শুনলাম। ইহা উলেলখ্য যে, অর্থঋণ আদালত আইন ২০০৩ এর ৬(৪) ধারার বিধানে বাদীপক্ষ মোকদ্দমা দায়েরকালে আরজি ও কাগজাদির সাথে এফিডেবিট দাখিল করলে মোকদ্দমা একতরফা বা তাৎক্ষনিক নিস্পত্তির ক্ষেত্রে কোন সাক্ষীকে পরীক্ষা ব্যতিরেকে হলফনামাযুক্ত আরজি দালিলিক প্রমানাদি বিশেলষন করিয়া রায় বা আদেশ প্রদান করা যায়। বাদীপক্ষ এফিডেবিট সহ আরজি দাখিল করেছেন।
অত্র মোকদ্দমার আরজি, বাদী পক্ষের দাখিলী কাগজপত্র এবং নথি পর্যালোচনা করলাম। বাদী ব্যাংকের দাবী আইনানুগভাবে প্রমানিত হয়। ফলে বাদীপক্ষ প্রার্থীত প্রতিকার পাইতে হকদার।
প্রদত্ত কোর্ট ফি সঠিক।
অতএব,
আদেশ হয় যে,
এ মোকদ্দমাটি বিবাদীগণের বিরুদ্ধে একতরফা সূত্রে খরচা সহ গত ৩০/৬/১০ খ্রি. পর্যন্ত ৮,১০,০৯,৩৭৪/- (আট কোটি দশ লক্ষ নয় হাজার তিনশত চুয়াত্তর) টাকার ডিক্রি হলো। ০১/০৭/১০খ্রি. তারিখ থেকে টাকা আদায় না হওয়া পর্যন্ত বাদীপক্ষ অর্থঋণ আদালত আইন ২০০৩ এর ৫০(২) ধারায় বর্ণিত সুদসহ প্রাপ্ত হবে। বিবাদীপক্ষকে রায় প্রচারের ৬০ (ষাট) দিবসের মধ্যে ডিক্রীকৃত টাকা সুদ সহ বাদীপক্ষের অনুকূলে পরিশোধের নির্দেশ দেয়া হলো। ব্যর্থতায় বাদী পক্ষ আদালত যোগে আইন ও পদ্ধতি মোতাবেক ডিক্রীকৃত টাকা আদায় করে নিতে পারবে।
মোকদ্দমা দায়ের পরবর্তী বিবাদীপক্ষ কোন টাকা জমা প্রদান করলে, বাদীপক্ষকে উক্ত টাকা বাদ দিয়ে পরবর্তী কার্যক্রম গ্রহণ করার নির্দেশ দেয়া হলো।
আমার কথিত মতে মুদ্রিত ও সংশোধিত। (underlined by us)

It is evident from the above-quoted impugned judgement and order that the learned Judge of the Adalat heard the defendant side’s two applications; one is for withdrawing the suit from the list under the heading of “delivery for judgment” and the other application is for realization of loan under the Sharia Law, both of which were filed under Section 57 of the Ain, 2003 read with Section 151 of the Code of Civil Procedure (CPC), and the same were rejected by the Adalat on the ground that the applications were filed for delaying the disposal of the suit. Then the Adalat disposed of the case on consideration of the plaint made under affidavit and the documents filed therewith. It is, however, evident that the Adalat did not consider the written statement, nor did it dispose of the suit upon examining the issues which the Adalat had framed upon receiving the written statement.

Now, the pertinent question comes up for examination is whether the Adalat was under a legal duty to consider the written statement of the defendant-petitioner, in a situation, when he failed to participate in the hearing of the case or purposefully refrained from attending the hearing of the case.
To have a resolution of the above query, we need to look at Section 6(4) of the Ain, 2003, which is quoted below :

“৬. বিচার পদ্ধতি- (১), (২), (৩) ................................................
(৪) এই আইনের অধীনে অর্থঋণ আদালতে মামলা নিস্পত্তির ক্ষেত্রে উপ-ধারা (২) ও (৩)-এর বিধান অনুযায়ী সংযুক্ত হলফনামা (Affidavit) মৌখিক সাক্ষ্য (substantive evidence) হিসাবে গন্য হইবে, এবং আদালত কোন মামলার একতরফা বা তাৎক্ষনিক নিস্পত্তির ক্ষেত্রে কোন সাক্ষীকে পরীক্ষা ব্যতিরেকে, কেবল এইর্রপ হলফনামাযুও্র আরজি বা লিখিত জবাব ও সংক্ষিপ্ত দালিলিক প্রমানাদি বিশ্লেষণ করিয়া রায় বা আদেশ প্রদান করিবে” (underlines added)

Our unambiguous understanding on the above provisions of the law is that Section 6(4) of the Ain, 2003 mandates the Adalat to dispose of an Artharin suit exparte or instantly by simply considering the plaint (prepared under affidavit) or written statement (made with affidavit) and the documents filed therewith, upon treating all of them as substantive evidence and, thus, pleadings with affidavits is the focal-point of this provision and any formal examination of witnesses has got less emphasis in the Ain, 2003.

Whether in the expression “” incorporated in Section 6(4) of the Ain, 2003, the word “h¡” (or) is to be read as a conjunctive word or as a disjunctive word requires some examination and discussion for effective disposal of not only of this Rule, but also of the other cases with the similar background.

To carry out the above scrutiny, we need to look at the provisions of Sections 6(4), 13 and 19(1) of the Ain, 2003 side-by-side, for, Section 6(4) of the Ain, 2003 does not outline the procedure to be followed in a situation requiring exparte disposal or instant disposal and it is Section 13 of the Ain, 2003 which seeks to provide the grounds and procedures for instant (তাৎক্ষনিক/অবিলম্বে) disposal of an Artharin suit and Section 19 of the Ain, 2003 outlines the reasons for taking up an Artharin suit for exparte disposal and also the procedures to be followed.

We would quote only the provisions of Section 13 of the Ain, 2003 herein under, as the other two Sections have already been embodied in this judgment hereinbefore. Section 13 of the Ain, 2003 reads as under:

১৩। (১) বিবাদী কর্তৃক লিখিত জবাব দাখিল হওয়ার পরবর্তীতে ধার্য একটি নির্ধারিত তারিখে আদালত উভয় পক্ষকে, যদি উপস্থিত থাকে, শুনানী করিয়া এবং আরজি ও লিখিত বর্ণনা পর্যালোচনা করিয়া মামলার বিচার্য বিষয়, যদি থাকে, গঠন করিবে; এবং যদি বিচার্য বিষয় না থাকে, আদালত অবিলমেব রায় বা আদেশ প্রদান করিবে।
(২) উপ-ধারা (১) এ নির্ধারিত তারিখে, কোন বা উভয় পক্ষ যদি অনুপস্থিত থাকে, তাহা হইলে আদালত, আরজি ও লিখিত বর্ণনা পর্যালোচনা করিয়া মামলার বিচার্য বিষয়, যদি থাকে, গঠন করিবে; এবং যদি বিচার্য বিষয় না থাকে, আদালত অবিলমেব রায় বা আদেশ প্রদান করিবে।
(৩) মামলার যে কোন পর্যায়ে, লিখিত বর্ণনায় কিংবা অন্য কোনভাবে বিবাদী কর্তৃক বাদীর আর্জির বক্তব্য স্বীকৃত হইয়া থাকিলে, এবং উক্তরূপ স্বীকৃতির ভিত্তিতে যেরূপ রায় বা আদেশ পাইতে বাদী অধিকারী, সেরূপ রায় বা আদেশ প্রার্থনা করিয়া বাদী আদালতের নিকট দরখাস্ত করিলে, আদালত, বাদী ও বিবাদীর মধ্যে বিদ্যমান অপরাপর বিচার্য বিষয় নিষ্পত্তির জন্য অপেক্ষা না করিয়া, উপযুক্ত রায় বা আদেশ প্রদান করিবে।
(৪) মামলার শুনানীর জন্য ধার্য প্রথম তারিখে অথবা মামলার যে কোন পর্যায়ে যদি আদালতের নিকট প্রতীয়মান হয় যে, পক্ষদ্বয়ের মধ্যে ঘটনা অথবা আইনগত বিষয়ে কোন বিবাদ নাই, তাহা হইলে, আদালত অবিলমেব রায় বা আদেশ প্রদান করিয়া মামলা চুড়ান্তভাবে নিষ্পত্তি করিবে।

(underlined by us)

From a concurrent reading of the aforesaid three Sections, it appears to us that the expression “হলফনামাযুক্ত আরজী বা জবাব” incorporated in Section 6(4) of the Ain, 2003 has been used in the context of “কোন মামলা একতরফাসূত্রে বা তাৎক্ষনিক নিষ্পত্তির ক্ষেত্রে” and, accordingly, we are to see whether the expression “হলফনামাযুক্ত আরজী বা জবাব” relates only to a situation of exparte disposal or only to a situation of instant disposal.

For application of the above expression in an exparte disposal situation, when the word “h¡” (or) would be read as the disjunctive one, an unworkable situation would arise for the Adalat. Because, in that event the Adalat shall have to consider either the plaint only or the written statement only in the backdrop of impossibility of disposal of a suit solely on the basis of written statement. Furthermore, disposal of a suit solely based on the written statement will render the provisions of Section 19(6) of the Ain, 2003 nugatory. The said Section 19(6) of the Ain is quoted below:

১৯(৬) অর্থ-ঋণ আদালতে বিচারাধীন কোন মামলা, বাদীর অনুপসিহতি বা ব্যর্থতা হেতু খারিজ করা যাইবে না, এবং এইর্রপ ক্ষেত্রে আদালত, নথিতে উপসহাপিত কাগজাদি পরীক্ষা করিয়া গুনাগুন বিশ্লেষণে মামলা নিষ্পত্তি করিবে।

From a plain reading of the above law it appears that this provision requires consideration of the plaintiff’s case on merit, irrespective of the fact as to whether the plaintiff is present in the Adalat or not. The provision is about a situation where only the plaintiff is absent as reflected in the words “বাদীর অনুপসিহতি বা ব্যর্থতার হেতু”. It further speaks of “গুনাগুন বিশ্লেষণে মামলা নিষ্পত্তি করিবে”. From the practical view point, when the plaintiff is absent or fails to appear, two situations, namely (i) the plaintiff is absent but defendant is present or (ii) both the parties are absent, would arise. Given that Section 19(6) of the Ain, 2003 is silent about presence or absence of the defendant, an assessment is required to be made to know the real intention of Section 19(6) on the Ain, 2003. The straight-forward reply is that in both the situations, while it is mandatory for the Adalat to consider the plaintiff’s case on merit, for, Section 6(4) of the Ain, 2003 dictates the Adalat to consider the plaint (made under affidavit) and the documents, it is discretionary for the Adalat whether to consider the defendant’s case or not. Our view is that in disposing of a suit under Section 19(6) of the Ain, 2003, since there is no prohibition to consider the defendant’s case in the event of the defendant’s absence, the case of the defendant should also be considered, and not of the plaintiff alone. However, when the defendant is present his case is also to be considered either by way of production of formal evidence through witness or without examination of witnesses as stipulated in Section 6(4) of the Ain, 2003.

On the contrary, if the word “h¡” (or) employed in Section 6(4) of the Ain, 2003 is read as a conjunctive word in an exparte disposal situation, it will mean that even if the defendant is absent, the Adalat must consider both the plaint and written statement making the provisions of Section 19(1) of the Ain 2003 redundant, for, this Section requires exparte disposal (একতরফাসূত্রে) in the absence of defendant.

Similarly, when the expression “হলফনামাযুক্ত আরজী বা জবাব” in the context of instant disposal situation, as occurs in Sections 6(4) (তাৎক্ষনিক নিষ্পত্তির ক্ষেত্রে) and 13(1), 13(2), 13(3) & 13(4) of the Ain, 2003, would be applied, the Adalat would face the same dilemma, as discussed above in the event of exparte disposal, if the word “ev” (or) is taken in the conjunctive sense or disjunctive sense.

Thus, apparently there is a bit of lack of clarity in the provisions of Section 6(4) of the Ain, 2003 and it has inevitably become a bounden duty for this Court to interpret the provisions of Section 6(4) of the Ain, 2003 on the touchstone of the scheme of the Ain, 2003 and, thereby, attribute a cohesive meaning of it.

By Section 6(4) & 19(6) of the Ain, 2003 the Legislature has created a device for the Adalat that if the parties to the Artharin suit fail to produce witnesses for the purpose of proving their cases by way of formally stating it on the witness box, as in an ordinary Civil Case, or they do not want to face the hassle of attending the Court premise for giving evidence, they will be allowed to prove their respective cases by way of submitting documents. While Section 6(4) of the Ain, 2003 directs that in the event of absence of the defendant, the Adalat would dispose of a suit upon considering the plaint or/and written statement together with documentary evidence, Section 19(6) provides that due to the plaintiff’s absence the Adalat cannot dismiss the suit, for, the law obliges the Adalat to consider the merit of the plaint with affidavit and also the documents filed in the Adalat.

The legislative intention behind enactment of this special law is to set up special Courts for recovery of the Banks’/Financial Institutions’ loan from the defaulters. For achieving the target, the Legislature has sought to incorporate a short-cut procedure in disposing of the Artharin Suits and avoid lengthy procedures as being followed in the ordinary civil Courts. With this aim, the Legislature has provided the procedure for the Adalat to be followed in an exparte disposal scenario or instant disposal situation. An exparte disposal may be done, both, before and after receiving the written statement. If the suit is decreed exparte before receiving the written statement, then there is no difficulty in reading and applying the provisions of Sections 6(4) & 19(1) of the Ain, 2003. However, once the Adalat receives the written statement and the defendant’s inaction or failure to pursue the suit compels the Adalat to opt for exparte disposal, then the question comes for consideration as to whether the Adalat should consider the written statement.

When in an Artharin suit the defendant-side would not participate in the hearing, what would the Adalat do with the written statement? The normal presumption would be that by his non-participation in the hearing he was not placing before the Adalat his claims, which were raised in the written statements. And keeping this scenario in mind, the Legislature made the provision in Section 19(1) of the Ain, 2003 for the Adalat to dispose of the suit exparte (HLalg¡p§œ). The expression “HLalg¡p§œ” in Section 19(1) of the Ain, 2003 has been purposefully employed debarring the Adalat from considering the defendant’s case.

The above analysis on the different provisions of the Ain, 2003, which had been carried out in an effort to lay down a workable statutory interpretation, leads us to take a view that the meaning of the expression “হলফনামাযুত্তু আরজী বা জবাব” employed in Section 6(4) of the Ain, 2003 is that the plaint (made with affidavit) is to be considered and where necessary the written statement (made under affidavit) is also to be considered. Hence, in Bangla the following expression “হলফনামা যুক্ত আরজী এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত জবাব” would sound more appropriate.

It is a finding of fact, this Court already arrived at hereinbefore by examining the background-events, that the petitioner’s failure to participate in the hearing led the Adalat to proceed towards exparte disposal under Section 19(1) of the Ain, 2003. The facts of the case, thus, show that the Adalat has exercised its jurisdiction as a competent Court, so far the framing of issues and the passing of the exparte decree in the absence of the defendant are concerned and, therefore, we do not find that the Adalat had no jurisdiction to pass the impugned order and, thus, the ratio of the cited case of Pabna Mental Hospital Vs Tossadek Hossain & others 13 BLC (AD) 91, wherein the concerned State-functionary had exceeded its jurisdiction, and the case of Rupali Bank Ltd Vs Tafazal Hossain 44 DLR (AD) 260, wherein the civil Court had tried the suit without having jurisdiction, has no manner of application in the present case, and the case of Md. Arfanuddin akand & another Vs Artharin Adalat and others 15 BLT 243 is not applicable here in this case, for, the decision arrived at by the High Court Division is per incurium inasmuch the Court missed examination of Section 19 (1) of the Ain, 2003. In the instant case, thus, the Adalat was not under a legal duty to consider the case of the defendants as made out in the written statements or the issues that had been framed earlier.

Let us now deal with the issue of maintainability of this writ petition. In order to examine the said issue, we need to look at the provisions of Section 19(2), 19(3) & 19(4) of the Ain, 2003 which is quoted below:

১৯ (২) কোন মামলা একতরফা সূত্রে ডিত্র্রী হইলে, বিবাদী উক্ত একতরফা ডিত্র্রীর তারিখের অথবা উক্ত একতরফা ডিত্র্রী সম্পর্কে অবগত হইবার ৩০ (ত্রিশ) দিবসের মধ্যে, উপ-ধারা (৩) এর বিধান সাপেক্ষে, উক্ত একতরফা ডিত্র্রী রদের জন্য দরখাস্ত করিতে পারিবেন।
১৯ (৩) উপ-ধারা (২) এর বিধান অনুযায়ী দরখাস¹ দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস¹ দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমাণ টাকা বাদীর দাবীর সেই পরিমাণের জন্য স্বীকৃতিস্বরুপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানত-স্বরুপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিমেয় দলিল (Negotiable Instrument) আকারে জামানত হিসাবে আদালতে জমাদান করিতে হইবে।
১৯ (৪) উপ-ধারা (৩) এর বিধানমতে ডিক্রীকৃত অর্থেও ১০% এর সমপরিমাণ টাকা জমাদানের সংগে সংগে দরখাস্তটি মঞ্জুর হইবে, একতরফা ডিক্রী রদ হইবে এবং মূল মামলা উহার নমবর ও নথিতে পুনরুজ্জীবিত হইবে, এবং আদালত ঐ মর্মে একটি আদেশ লিপিবদ্ধ করিবে; এবং অতঃপর মামলাটি যে পর্যায়ে এক তরফ নিষ্পত্তি হইয়াছিল, ঐ পর্যায়ের অব্যবহিত পূর্ববর্তী পর্যায় পরিচালিত হইবে।

It appears that the Legislature has eased the task of restoration of an Artharin suit for an alleged loan-defaulter by incorporating the above provisions. Because of the percentage of deposit being only 10% of the decretal amount, the time-limitation of filing the application being sufficient (30 days from the date of knowledge of passing the exparte decree plus further 15 days for deposit) and the mode of payment being flexible, for, it is permissible to pay in cash or submit bank draft, pay order, cheque and any other negotiable instrument, it would not be irrational to view these conditions as affordable for an aggrieved party.

In the case at hand, the impugned exparte judgment and decree has been passed on 22.04.2012 and the petitioner could have filed an application for restoration of the suit within 22.05.2012 with the opportunity of depositing the 10% of the decretal amount within next 15 (fifteen) days of filing the aforesaid application. The petitioner, instead of availing himself of the above route, opted to file the instant writ petition and that too was done after 1 (one) year of passing the impugned exparte judgment and decree. It is evident from the statement of the Bank that the Execution Case no. 110 of 2012, having been started on 24.09.2012, has its final disposal still awaiting and, in fact, issuance of the instant Rule has halted the further process of the Execution case, albeit there is no direction or injunction restraining its process.

The petitioner could also have sought remedy in the form of preferring an appeal under Section 41 of the Ain, 2003 within the time as prescribed therein. The appellate Court is competent to examine any factual issue and law point, including the issue of passing the impugned judgment and decree exceeding its jurisdiction, and take fresh or further evidence for effective disposal of an appeal. However, the petitioner purposefully refrained from availing himself of the aforesaid remedy. Section 41 runs as follows:

“ধারা-৪১ঃ আপীল দায়ের ও নিষ্পত্তি সম্পর্কিত বিশেষ বিধানz -(১) মামলার কোন পক্ষ, কোন অর্থঋণ আদালতের আদেশ বা ডিত্র্রী দ্বারা সংক্ষুব্ধ হইলে, যদি ডিত্র্রীকৃত টাকার পরিমাণ ৫০ (পঞ্চাশ) লক্ষ টাকা অপেক্ষা অধিক হয়, তাহা হইলে উপ-ধারা (২) এর বিধান সাপেক্ষে, পরবর্তী ৩০ (ত্রিশ) দিবসের মধ্য হাইকোর্ট বিভাগে, এবং যদি ডিত্র্রীকৃত টাকার পরিমাণ ৫০ (পঞ্চাশ) লক্ষ টাকা অথবা তদঅপেক্ষা কম হয়, তাহা হইলে জেলা জজ আদালতে আপীল করিতে পারিবেন।
(২) আপীলকারী, ডিত্র্রীকৃত টাকার পরিমাণের ৫০% এর সমপরিমাণ টাকা বাদীর দাবীর আংশিক স্বীকৃতিস্বরুপ নগদ ডিত্র্রীদার আর্থিক প্রতিষ্ঠানে, অথবা বাদীর দাবী স্বীকার না করিলে, জামানতস্বরুপ ডিত্র্রী প্রদানকারী আদালতে জমা করিয়া উক্তরুপ জমার প্রমাণ দরখাস¹ বা আপীলর মেমোর সহিত আদালতে দাখিল না করিলে, উপ-ধারা (১) এর অধীন কোন আপীল কার্যার্থে গৃহীত হইবে না।
(৩) উপ-ধারা (২) এর বিধান সত্তেও, বিবাদী-দায়িক ইতিমধ্যে ১৯(৩) ধারার বিধান মতে ১০% (দশ শতাংশ) পরিমাণ টাকা নগদ অথবা জামানত হিসাবে জমা করিয়া থাকিলে, অত্র ধারার অধীনে আপীল দায়েরের ক্ষেত্রে উক্ত ১০% (দশ শতাংশ) টাকা উপরি-উল্লিখিত ৫০% (পঞ্চাশ শতাংশ) টাকা হইতে বাদ হইবে।
(৪), (৫), (৬).....................................................................”

It is the clear intention of the Legislature that a party to an Artharin Suit if aggrieved by a decree, must prefer an appeal. Since the Ain, 2003 is a special law with an overriding provision over other laws and has prescribed a special procedure, there is no scope to bypass the appellate forum, if the forum under Section 19(2) of the Ain, 2003 against an exparte decree is already not availed of by the party.

The only exception is that before passing the decree, if a party to an Artharin Suit feels aggrieved by an order, writ jurisdiction may be invoked as has been held in the case Sonali Bank Ltd Vs Asha Tex International 20 BLC 185. However, after passing a decree, if the party of an Artharin Suit, becomes aggrieved by any type of order, there is no forum other than preferring an appeal under Section 41 of the Ain, 2003.

The cases referred to by the learned Advocate for the petitioner are factually different in nature inasmuch as those did not arise out of any order or decree of an Artharin Suit. In the celebrated case of the Collector of Customs Vs Mr. A. Hannan 10 BLD (AD) 216, the appellate forum was held to be ‘not equally efficacious’ as the provision requires deposit of 50% of the penalty. But in the Artharin suits the required deposit is of the decretal amount and it is the money of the Bank/financial institution, as opposed to levying any duty or penalty. In the case of Tafijul Huq Sarker Vs Bangladesh 4 MLR (AD) 19, the appellate forum for a terminated Mutawalli was held to be not equally efficacious as the precondition for preferring an appeal is to hand over the charge first and, thus, the fact being completely different bypassing the appellate forum was held to be justified in the said case. The ratio laid down in the case of Bangladesh Vs Iqbal Hasan Mahmeed Tuku 60 DLR (AD) 147 has been overruled by the Apex Court by their decision passed in the case of ACC Vs Enayetur Rahman 64 DLR (AD) 14. The case of Mayor, Chittagong City Corporation Vs Md Jahangir Faruk and others 14 BLT (AD) 24 is about dismissal of the writ petitioner who directly had invoked writ jurisdiction without preferring an appeal to the appellate authority and the said appellate authority, being an Administrative higher authority, the forum cannot be termed to be an equally efficacious forum in the backdrop of apparent ex-facie illegality in the dismissal order which was passed without carrying out any departmental proceeding. Thus, none of the said cases’ ratio is applicable in this case.

Therefore, the writ petition is not maintainable, for, there are alternative efficacious remedies available to the petitioner. Our above view gets support from the principles laid down in the cases of (i) Zahirul Islam Vs National Bank 46 DLR (AD) 191, (ii) Gazi M. Towfiq Vs Agrani Bank 54 DLR (AD) 6, (iii) BADC Vs Artharin Adalat 59 DLR (AD) 6, (iv) Oriental Bank Vs AB Siddiq 13 BLC (AD) 144, (v) ACC Vs Enayetur Rahman 64 DLR (AD) 14 and (vi) Sonali Bank Ltd Vs Asha Tex International 20 BLC 185.

The petitioner has resorted to a wrong forum by invoking the writ jurisdiction of this Court. He cannot now avail himself of the remedy under Section 41 of the Ain, 2003, for, evidently he is out of time. Had this writ petition been filed within 30 (thirty) days of the decree, he could have enjoyed the benefit of the provisions of Section 14 read with Section 29 of the Limitation Act as was viewed by a Division Bench of the High Court Division in the case of Sharifa Begum Vs Bangladesh (Writ Petition no. 15331 of 2012) (unreported). However, it is our view that when an aggrieved party to an Artharin suit, when comes with clean hands and his move is a bonafide one directed at examining a clear-cut factual issue or legal point and not to frustrate the Artharin suit, and files a writ petition by making a 50% down payment of the decretal amount to the lender Bank/financial institution and furnishes detailed reasons for not being able to prefer an appeal within the prescribed time, in the aforesaid rarest of rare situations, this Court by exercising its ‘special jurisdiction’ under Article 102(2)(a)(ii) of the Constitution may entertain the application, for, being barred by limitation there is no other forum for the aggrieved party.

Before parting with the judgment, we find it proper to have a survey on the manner and style of handling the present case by the learned Advocate for the petitioner and thereby make an assessment as to whether he has performed his professional duty in conformity with the norms and etiquette of the legal profession in the backdrop of the Appellate Division’s following observations made at Para 21 in the case of BADC Vs Artharin Adalat 59 DLR(AD) 6;

Before we part, we would like to put it on record that in spite of the fact that the law in the matter has been settled long back, petitions are unnecessarily filed under Article 102 of the Constitution challenging the judgment of the Artharin Adalat without making any case covered under the aforesaid Article, not to speak of any ground touching fundamental rights of the petitioner. As a result, the superior Courts are wasting public time which should be discouraged by all concerned including the learned members of the Bar, who are as well officers of the Court.

About 10 (ten) years ago, our Apex Court urged the learned Advocates of this Court to be susceptive in filing a writ petition against any decree of the Artharin Adalat. But unfortunately the learned members of the Bar are coming up with the said writ petitions indiscriminately and thereby causing wastage of valuable time of this Court which is overwhelmingly overburdened with huge backlog of cases.

More so, after obtaining the Rule on 29.04.2013 no step was taken by the petitioner to get the matter heard. It is only when the matter was sent to this Bench by the concerned office of this Court (Writ Section) to dispose of the Rule, did the learned Advocate for the petitioner appear on 19.08.2015 before this Court and the matter was fixed for hearing. However, since the date of fixing the matter for hearing, the learned Advocate for the petitioner was not appearing before this Court and, consequently, the matter was placed in the Daily Cause List under the heading ‘For Order’. Thereafter, on the verbal promise of the learned Advocate for the petitioner that he shall assist this Court in disposing of the Rule, the matter was again taken back in the category of the items under the column “For Hearing”. Since then, every day at the ‘Mentioning Hour’ the learned junior Advocate attached to Mr. S.N. Goswami was coming up with a prayer to ‘pass over’ the item on the ground of Mr. Goswami’s engagement in the Appellate Division and eventually the matter was heard-in-part and adjourned to 15.09.2015. Thereafter, the learned Advocate for the petitioner took adjournment on several occasions by sending his junior on his personnel ground. In the meantime, the jurisdiction of this Bench changed from writ matters to criminal cases and the Hon’ble Chief Justice, upon receiving administrative note from this Bench, asked us to continue with the hearing of all the part-heard writ matters in addition to exercising the criminal jurisdiction. Accordingly, for nearly two weeks the matter was appearing in a separate Cause List and when the learned Advocate for the petitioner was not turning up, this Court informed the learned Advocate for the petitioner through the Bank’s lawyer about this Court’s intention to dispose of the Rule, whether or not the learned Advocate for the petitioner attend this Court to make any submissions. On 08.12.2015, Ms. Afsana Begum, the associate Advocate of the learned Advocate for the petitioner, prayed for time on the plea that Mr. Goswami wants to make some submissions on the issue of maintainability of the writ petition and on 09.12.2015 when the matter was taken up for hearing, neither the learned Advocate Mr. Goswami nor his junior Ms. Afsana Begum complied with their promise to attend the hearing and, under the circumstance, this Court fixed the next day for delivery of judgment and on 10.12.2015 when this Court took up the case for pronouncement of the judgment, unfortunately, no one was present, not even his junior, to receive the judgment. However, on 10.12.2015 pronouncement of the judgment could not be finished due to ending the working hour of the day and this Court had to adjourn the pronouncement of the rest of the judgment. Today, (27.01.2016) when this Court is about to accomplish the unfinished judgment, Ms. Afsana Begum, the learned junior to Mr. Goswami, appeared and placed some decisions in support of their argument on the issue of maintainability of this writ petition. The above pattern of handling the case by the learned Advocate for the petitioner amply suggests that the petitioner filed the instant writ petition for delaying the execution process through abusing the process of this Court and the above style of dealing with this case leads us to hold that the petitioner managed to resort to this extreme extent of abuse of the process of the highest Court with the assistance of the learned Advocate for the petitioner for which both of them deserve to be penalised by slapping exemplary costs to be paid from the pocket of the learned Advocate for the petitioner in addition to ordinary statutory costs to be paid by the petitioner, as was ordered in the case of Bandar Nagari Bahumukhi Samabay Samity Ltd Vs Bangladesh 5 ALR-2015 (1) 194. However, Given the fact that Mr. Goswami has showed this attitude for the first time before this Bench, we refrain from passing any order of payment of costs from his pocket, as was done in the case of AKM Asaduzzaman Vs Public Service Commission 4 ALR-2014(2)278. Accordingly, the petitioner shall pay the costs to be imposed upon him hereinafter.

There is something more to pen through before we quit this judgment. This is for the Artharin Adalats who are everyday dealing with the Ain, 2003 and, as a part of our obligation under Article 109 of the Constitution, it would be an incomplete job for this Court if we do not prescribe their tasks in clearer terms after making the above lengthy discussions and analysis, which may seem to be cumbersome to the readers, on the provisions of Sections 6(4), 13 and 19 of the Ain, 2003.

In disposing of the exparte disposal of the Artharin suits, the Adalat must record its reasonings in detail. If the exparte disposal is required for the defendant’s non-appearance after complying with the provisions of Section 7 of the Ain, 2003, the Adalat should give at least one chance to the defendant to enable the latter to register its presence in the suit and contest it.

Upon receiving the summons, when the defendant appears and seeks adjournment for filing written statement, the Adalat should not allow more than two adjournments and, accordingly, the Adalat should go for exparte disposal if the defendant approaches for third adjournment without submitting the written statement.

After filing the written statement and framing issues, when the date is fixed for peremptory hearing, the Adalat should not allow more than two adjournments and on the prayer for third-time adjournment for attending hearing, the Adalat should dispose of the suit exparte.

The overall suggestion for the Adalat is that the Ain, 2003 is aimed at expeditious disposal of the Bank’s/Financial Institution’s claim for recovery of money which is, in fact, the money of the State. If the Adalat, after putting its best effort to serve the notice upon the defendant/s, is satisfied that the notice has been served properly, it should proceed towards the disposal of the suit. The Adalat should bear in mind that while there are unscrupulous defendant/s to delay the disposal of the Artharin suits and thereby frustrate the scheme of the Ain, 2003, however, there are also bonafide defendant/s who might be victimised by the Adalat’s inconsiderate hurriedness. The Adalat being in a better position to assess the above issues/factors from the manner and style of conducting the case by the defendant-side, it should pass appropriate order as per the demand of the circumstances invoking its inherent power under Section 57 of the Ain, 2003. The bottomline for the Adalat is to ensure fair justice for the parties to the suit and, in doing so, when the Adalat shall endeavour to protect the interest of a clean and bonafide defendant, the Adalat shall also not allow the cunning loan-defaulters to abuse the process of the Adalat. To save a vulnerable defendant from the unreasonable demand of the Banks/Financial Institutions and also to save the defendant’s property from selling at a shockingly low-price, which very often takes place in connivance with the staff of the Bank/Financial Institution and the concerned Court staff, if needed, the Adalat may exercise its inherent power recording the detailed reasons to substantiate its order.

We feel it pertinent to opine that the Law Commission of Bangladesh should look into our observations as to the ambiguities of some phraseology used in Sections 6 (4), 13 of 19(1) of the Ain, 2003 and take necessary steps for incorporation of appropriate expressions or deletion thereto. The Commission may make the following proposals to the Legislature;

In order to remove the ambiguity in the phrase “হলফনামাযুক্ত আরজী বা জবাব”, the same may be replaced by the following expression “হলফনামাযুক্ত আরজী এবং যথাযথ ক্ষেত্রে বিবাদীর হলফনামাযুক্ত জবাব” with an “Explanation” of the word “যথাযথক্ষেত্রে” to be incorporated underneath of the Sub-Section 6(4) of the Ain, 2003. “যথাযথক্ষেত্রে” means when the Adalat is required to dispose of an Artharin Suit under the provisions of Section 19(6) of the Ain, 2003 in the absence of the plaintiff and defendant, it shall consider the case of the defendant as well, if the written statement (made under affidavit) and any other documents have been filed.

The word ‘একতরফাসুত্রে, as occurs in section 19(1) of the Ain, 2003 should be given a definition clarifying that when the defendant upon appearing in the suit files written statement and after framing issue does not attend hearing, the Adalat shall consider only the case of the plaintiff and ignore the written statement and issues framed.

Section 19 (1) of the Ain, 2003 should prescribe two more reasons for proceeding with exparte disposal. The first reason should be “ধারা ৭ এর কার্যক্রম সম্পন্ন হওয়ার পর যদি পরবর্তী নির্ধারিত তারিখে বিবাদী না আসে” and, thereafter, the present two reasons would come and, then, the last reason should be incorporated in the following phrase “মামলার যে কোন পর্যায়ে যদি বিবাদী পরপর তিন বার সময়ের আবেদন করে”.

We further feel that the Judicial Administration Training Institute (JATI) should undertake a training program for the learned judges who are presiding over the Artharin Adalats with an aim to familiarize them with the interpretation of the different provisions of the Ain, 2003 so as to ensure that all the Adalats of the land use and take uniform meaning of the provisions of the Ain, 2003 and thereby help minimize preferring appeal or filing writs against the orders passed by them.

With the above observations and direction, the Rule is discharged with a cost of Tk. 20,000/- (twenty thousand) to be paid by the petitioner in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days from the date of receiving this judgment.

Office is directed to communicate this order to the learned presiding judges of all the Artharin Adalats functioning all over the Bangladesh so as to let them be acquainted with the above analysis on the Ain, 2003 and the ratio derived therefrom.

The Artharin Adalat, Court No. 4, Dhaka is directed to complete the execution process without any further delay.

Office is further directed to send a copy of this judgement to the Bangladesh Law Commission and the Director General, JATI for their perusal and necessary action.

Ed.

Oxinel Services Pet. Ltd. Vs. MD, BTCL and others [4 LNJ (2015) 139]

Case No: Contempt Petition No. 2 of 2014 with Suo moto Rule No. 2 of 2014

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Mr. Aneek R. Huq,Mr. Rais Uddin Ahmed,Mr. Tanveer Hossain Khan,,

Citation: 4 LNJ (2015) 139

Case Year: 2015

Appellant: Oxinel Services Pet. Ltd.

Respondent: Mr. S. O. M. Kalimullah and others

Subject: Contempt of Court,

Delivery Date: 2014-12-04

HIGH COURT DIVISION
(STATUTORY ORIGINAL JURISDICTION)

Md. Rezaul Hasan, J.

Judgment on
04.12.2014

}
}
}
}
}

Oxinel Services Pet. Ltd.
. . Petitioner
-Versus-
Mr. S. O. M. Kalimullah, Managing Director, Bangladesh Telecommunication Company Limited (BTCL) and others.
. . .Respondents

Constitution of Bangladesh, 1972
Article 108
When the Judge takes up the proceedings or acts in response to direct contempt the proc-eedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”       ...(25)

Constitution of Bangladesh, 1972
Article 108
Court should not accept the apology offered as a routine job or without taking into consi-deration the conduct of the contemners and its effect in defeating the course of justice. . . .(27)

Constitution of Bangladesh, 1972
Article 108
Being anxious that least it will disseminate an impression that this Court’s orders can be flouted at one’s sweet will, subject only to taking a bit discomfort in filing an affidavit seeking unconditional apology, will no doubt ridicule this Court and render its authority exists in theory only, resulting to the deteriation of an ordered society to exist and grow, based on the rule of law. To give way to such arrogant, audacious and repeated acts of defiance, as recorded in the judgment would no doubt result in indulging many others, of any stratum of the society, to flout this court’s order of binding charter and to allow an era of lawlessness to begin, which this court is oath bound to prevent. This court’s voice must be louder enough to be heard by those who are bound to comply with the same. . . . (27)

Constitution of Bangladesh, 1972
Article 108
Court should ensure effectiveness and workability of the administration of justice system and the rule of law to sustain in this country, by awarding appropriate punishment to the offenders, without discrimination as well as letting all concerned to hear the voice of this Court and to understand that the age old proverb that the hands of this court is long enough to reach any offender.       ...(28)

Constitution of Bangladesh, 1972
Articles 108, 109 and 112
Court should not act mechanically, to make it a routine job, in accepting the apology offered by the contemners, in each and every case. Rather, this Court has to ensure that the letters and spirit of Article 112 and Article 109 of the Constitution are respected and upheld by all quarters, government and non-government.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
Apology offered may be taken as a mitigating factor, but not to discharge the contemner from their liability, though it is within discretion of this court to decide whether the contemners will be discharged or not and, if not, to ascertain the quantum of the punishment. . . . (31)

Constitution of Bangladesh, 1972
Articles 7, 39(2), 108, and 112
Article 7 read with Articles 39(2), 108, and 112 of the Constitution, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the Supreme Court to be exercised by the honourable Judges of this Court, so that the authority, dignity and majesty of this Court is upheld, an ordered society based on the rule of law can exist and the justice is even handedly secured to those who deserve. The people’s ‘will’ reflected in the Articles referred to herein above should be given effect to by this court without discrimination. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Once this Court passes any binding order in any proceeding then it, in substance, becomes a public order and this Court is legally entrusted to implement the same in the public interest and the rule of law to prevail. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Refusal to obey this Court’s order is an explicit challenge to it’s authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court, rendering its judgment and order a nullity and such conduct cannot go unpunished with impunity, moreover, in such a case it is immaterial at what stage the apology is offered. Mr. S.O.M. Kalimullah, son of late Mohammad Dayem Mia is hereby held guilty of committing contempt of this court. His apology is rejected. Further, considering the aggravating factors, hereinbefore recorded at paragraph number 23, he is hereby sentenced to suffer simple imprisonment for a period of 4(four) months, with immediate effect and to pay a fine of Taka 1,00,000.00 (one lac), to be deposited in Bangladesh Bank under the concerned head, within 1(one) month of drawing of up of this judgment and order and shall submit affidavit in compliance before this court, within 2(two) weeks thereafter.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
The power of the Supreme court, the Appellate Division and the High Court Division, being the court of records, as embodied under Article 108 of the Constitution of the People's Republic of Bangladesh, cannot be restricted and trammeled by any ordinary legislation including the Contempt of Courts Act [even if enacted] and their inherent power is elastic, unfettered and not subjected to any time limit.      . . . (31)

Constitution of Bangladesh, 1972
Article 108
The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Compliance of the Court’s order cannot be treated as extenuating circumstances in all cases, since it is duty of the person concerned to obey the same. However, if the Court is satisfied that non-compliance was not deliberate or international, or that the contemner was not at all aware of the order required to be complied with or if the order to be complied with was lacking clarity to such an extent that the duty to comply with the same was honestly not comprehensible to the person(s) obliged to comply the court’s order, then the court should take lenient view. . . . (31)

Constitution of Bangladesh, 1972
Article 108
Contempt by a person who is a party to the proceedings and contempt by a person, who is not such a party, cannot be weighed on the same scale. However, gravity of the offence does not depend on the question as to whether the contemner was a party or act, but upon the nature of the offence. . . . (31)

35 DLR (AD) 290: Moazzem Hossain DAG Vs. State; DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish; 38 DLR (AD) 188: Abdul Karim Vs. State; 44 DLR (AD) 237: Shamsur Rahman Vs. Tahera Nargis; AIR 1983 SC 1151: Ashram M Jain Vs. A T Gufta and AIR 1984 (SC) 1374: LD Jaidwal Vs. State, 1 DLR (1949) 177, 44 DLR (AD) 237 and in the AIR 1984 SC 1374, 44 DLR (AD) 237, 1 DLR (1949) 177, AIR 1984 SC 1374, 18 DLR SC 124 and 34 DLR 223. AIR 1983 SC 1151: Ashram M. Jain Vs. AT Gupta, AIR 1943 PC 203: 19 BLT (AD) 54: Md. Riaz Uddin Khan Vs. Mahmuder Rahman and ors and the 2011 ADC 175: Shahudul Haque, IGP & another Vs. the State; Moazzem Hossain Vs State, 35 DLR (AD) (1983) 290, 293; Abdul Halim (Md) vs Dr. Md. Tareque, 63 DLR 465 (para-13); Mahbubur Rahman Sikder and ors Vs. Mujibur Rahman Sikder and Ors, 35 DLR (AD) 203; Abdul Karim Sarekr Vs. The State and another, 38 DLR (AD) 188; A.K. M.A Awal Vs. The State, 16 DLR (SC) 429 (para-20); Shamsur Rahman Vs. Tahera Nargis, 44 DLR (AD) 237 (para-12); Elders Ltd. Vs. Sunil Chandra Chowdhury and another, 54 DLR 226, (para 5) and The Crown Vs. Moulvi Abdul Rashid Tarkabagish M.L.A. of Serajgonj, 1 DLR (1949) 177, 181 ref.

Mr. Aneek R. Huq, Advocates

. . .For the Petitioner

Mr. Rais Uddin Ahmed, Advocate

. . . For the Respondents

Mr. Tanveer Hossain Khan, Advocate

…For the respondent in Suomoto Rule No. 2 of 2014

Mr. Rafique-ul Huq, Senior Advocate
Mr. Rokanuddin Mahmud, Senior Advocate
Mr. Ajmalul Hossain QC, Senior Advocate
Dr. Kazi Akter Hamid, Advocate
Mr. Manzill Murshid, Advocate

. . . Learned Amicus Curiaes

Contempt Petition No. 2 of 2014 with Suo moto Rule No. 2 of 2014

JUDGMENT

Md. Rezaul Hasan, J.

This Rule has arisen out of the petition for drawing up contempt proceeding, filed by the petitioner, against the accused-contemner Mr. S.O.M. Kalimullah, Managing Director, Bangladesh Telecommunication Company Limited (BTCL) and 3 other officials of BTCL, alleging, amongst other that, this contempt petition is directed against the contemner-opposite parties, for committing contempt of this Court, by not obeying this Court’s order dated 23^rd of July, 2013 as regards admitting a new Bank Guarantee and adjust with the previous bank Guarantee and to return back the remaining amount to the petitioner; that the contemner-opposite party No. 1 Bangladesh Telecommunication Company Limited (hereinafter referred to as BTCL) is a company incorporated under the Companies Act 1994 represented by (1) Mr. S.O.M. Kalimullah, Managing Director, BTCL , son of late Mohammad Dayem Mia, 28/2, Baily Road, Dhaka-1000, No. 2 Mr. Md. Bahadur Ali, Member (Finance) of BTCL, No. 3 Mr. Md. Moyez Mollah, Director (Finance & Accounts) of BTCL, and No.4 Mr. Shah Farid, son of late Saiful Islam, Deputy Director (Accounts-1), Bangladesh Telecommunications Company Limited of 37/E, Eskaton Garden, Telejogajog Bhaban, Dhaka; that the petitioner in the course of business furnished a Bank Guarantee being BG No. IFIC/ STOCK/BG /07/2011 dated 04.05.2011 issued by IFIC Bank Limited for TK. 14,000,000.00 (One crore forty lac) with BTCL; that during the continuance of the business, without having reasonable cause, BTCL has asked the IFIC Bank Limited to encash the said Bank Guarantee; that the amount (USD83,142.33 = BDT68,17,617.00) claimed by BTCL was a disputed one and also much less than the amount of the said Bank Guarantee for Tk.1.40 crore; that this petitioner, having no other alternative, sought relief from this Court for justice; that upon hearing the grievance of the petitioner, this Court was pleased to pass order of injunction, on 30.10.2012, against the encashment of the Bank Guarantee by the BTCL; that as the disputed amount was much less than the amount of the Bank Guarantee, the petitioner filed a petition for reducing the said Bank Guarantee; that the petitioner in its petition applied for reducing the amount of the Bank Guarantee upto the disputed amount and to return the rest of the amount to the petitioner; that upon hearing the petition, this Court was pleased to pass an order on 23.07.2013. In the said order it is clearly stated that, “Accordingly the petition to reduce the amount of Bank Guarantee from TK. 14,000,000.00 is allowed and the petitioner is permitted to submit a fresh Bank Guarantee, containing similar terms and conditions, for Tk. 68,17,617.00 in favour of the BTCL and then to withdraw the existing one and to renew the same from time to time, till the dispute is resolved finally.”; that thereafter the said order passed by this Court was communicated to BTCL and IFIC Bank; that having knowledge of the said order, the IFIC Bank Limited issued a fresh Bank Guarantee being No. IFIC/ STOCK /BG/05/2013 dated 01.10.2013 for BDT.68, 17,671.00 (Sixty Eight Lac Seventeen Thousand Six Hundred and Seventy One Taka) only on A/C of the petitioner complying this Court order and sent the same to BTCL for acknowledgement vide letter No. IFICB/ ADV/BG /2013/1973 dated 30.09.2013. But it is very unfortunate that the BTCL had neither crried out this Court’s order, nor acknowledged the Bank Guarantee issued by the IFIC Bank Limited; that the conduct and attitude of the BTCL towards the order passed by this Court certainly falls under the offence of Contempt of the court. The said Bank Guarantee and letter for acknowledgement dated 30.09.2013 is annexed herewith this petition as “annexure: “B” and “B(1)”; that it is pertinent to mention here, that despite the fact that the contemners are very much aware of the concerned order, they have shown utmost disregard to the order passed by this Court and that this conduct amounts to gross Contempt of this Court; that the contemners-opposite parties are guilty of contempt of Court; that almost 6 (Six) months have already been elapsed but the said order by this Court has not been complied with as yet; that, instead of complying the said order, the contemner-opposite parties have sent a letter being No. IAS/8-6/2011/67 dated 30.09.2013 to IFIC Bank Limited by clearly stating that “We would like to inform you that BTCL has objection regarding reduce the amount of Bank Guarantee Tk. 14,000,000.00 (One crore forty lac) and we will inform you in this regard later on.” that BTCL was given reasonable time, by this court, by an order dated 13.6.2014, to submit their objection, if any, within which they did neither appear nor show any cause, and, in the result, this Court was pleased to passed the said order dated 23.07.2013 for the petitioner; that abovementioned reply by BTCL certainly poses a serious challenge to the dignity, authority and majesty of this Court as well as to the rule of law; that the said letter dated 30.09.2013 is annexed herewith as “Annexure: “C”; that it is settled principle of law that “Disobedience to or failure to obey an interim order constitutes contempt of Court; that there can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery.” It is also a settled principle of law that “Undue delay in complying with the judgment of the Court may render a party guilty of contempt of Court,” that it is crystal clear that the contemner-opposite parties could never be able to show any reasonable cause regarding the non-compliance of the Court order; that the contemner-opposite parties were given a legal notice dated 23.11.2013 as a caution so that they without making any further delay comply with the said order of this court; that even then the contemner-opposite parties have not taken any positive step towards the compliance of the Court order. The copy of the legal notice is annexed as “Annexure: “D” (underlining is mine).

Upon hearing the said petition, and having considered the relevant materials on record, this court found a prima facie case to issue a Rule. Hence, a rule was issued, on 23.01.2014, against the accused-contemner Nos. 1 and 4 in the following terms:-

“Accordingly, let a Rule be issued upon the contemner-respondents No.1. Mr. S.O.M. Kalimullah Managing Director, Bangladesh Telecommunication Company Limited (BTCL), Telejogajog Bhaban, 37/E, Eskaton Garden, Dhaka-1000 and (2) Mr. Shah Farid, Deputy Director (Accounts-1), Bangladesh Telecomm-unication Company Limited (BTCL), Telejogajog Bhaban 37/E, Eskaton Garden, Dhaka-1000, to show cause as to why the proceedings for contempt of court shall not be drawn up against them for writing letter No.IAS/8-6/2011/67 dated 30.9.2013 signed by Md. Shah Farid (Contemner No.2), with the approval of the contemner No.1, that prima-facie shows willful and flagrant violation of order dated 23.7.2013 passed by this Court and amounts to committing contempt of court in the manner specified herein above and as to why they should not be convicted for committing contempt of court and be sentenced to suffer imprisonment and be fined for such term and/or for such amount, as this court may deem fit and proper.
The contemners are directed to appear before this court, in person, to answer the Rule on 19.2.2014 at 10-30 A.M. It should also be noted that, should the contemners fail to appear in person, a warrant of arrest may be issued to secure their presence, in Form No.1 (contempt), Appendix-III, of the Supreme Court of Bangladesh, (High Court Division) Rules, 1973.
I find no prima-facie case, at this stage, against 2(two) other persons alleged to have committed contempt. So, no Rule is issued, at this stage, against them.
This matter will appear in the cause list on 19.2.2014.
Let a copy of this order, enclosing the contempt petition, be served upon the Respondent-contemners through special messenger at the cost of the petitioner.”

The contemner No. 1 and 2 have appeared in person before this Court and have filed an affidavit, sworn on 10.04.2014, through their learned advocate Mr. Rais Uddin Ahmed, stating that the contemners-opposite parties have already complied with this court’s order, vide a letter dated 12.02.2014 (Annexure-1), sought unconditional apology and further stating that the contemners undertake that they will not do such act in future and that they express their deep regrets, without any attempt on their part to justify their conduct, and beg to submit that they have got their highest respect towards the Court and that they, under no circumstances, had any remotest intent to show any disrespect to the Court.

Considering the importance and anxiety of this Court in the matter of contempt of court, and also having taken into consideration the caution uttered in 1 DLR (1949) 177, Mr. Rafique-ul Huq (Senior Advocate), Mr. Rokanuddin Mahmud (Senior Advocate), Mr. Ajmalul Hossain QC (Senior Advocate), Dr. Kazi Aktar Hamid (Advocate) and Mr. Manzil Murshid (Advocate), were appointed as amicus curiae, particularly to reflect upon the contempt jurisprudence, in the facts and circumstances of this case, as well as to reflect upon (1) as to whether the act of contempt of court committed by persons who are parties to the proceeding before the court and by persons who are not parties to the proceeding shall be weighed on the same scale and (2) as to whether unconditional apology shall be accepted in all cases as if it is a matter of routine job for this court.

The learned advocate Mr. Aneek R. Huq, appearing for the petitioner, having placed the rule and the petition for drawing up contempt proceeding, first of all submits that the petitioner had filed an application, in Arbitration Application No. 27 of 2012, for reducing the amount of bank guarantee issued in favour of BTCL, from Tk. 1,40,00,000.00 to Tk. 68,17,671.00, being the amount claimed by the BTCL, vide their letter dated 22.10.2012. This Court, having received and heard the application, passed an order, on 13.06.2013, requiring BTCL to show cause as to why the bank guarantee amount shall not be reduced as prayed for by the petitioner and further ordered to keep this petition on record, for hearing, so that this Court may arrive at a decision after perusal of the BTCL’s statements / explanation that was called for by the Court and the Court had also directed that this order dated 13.06.2013 shall be served upon BTCL through special messenger and 21.07.2013 was fixed as the next date. In the Court’s order dated 13.06.2013 it was also recorded that should BTCL fails to show any cause against the prayer for reduction of the amount of the bank guarantee, then the court shall presume that BTCL has no objection in reducing the amount of the bank guarantee to the amount in excess of their claim. He next submits that, although BTCL has received the order dated 13.6.2013, served upon them through special messenger on 14.7.2013, they however, did not come up with any explanation or objection to the prayer for reducing the amount of bank guarantee. Accordingly, this Court has passed an order on 23.07.2013, in the said Arbitration Application No. 27 of 2012, reducing the amount of the bank guarantee from Tk.1,40,00,000.00 to Tk.68,17,617.00, i.e. conversion of the disputed amount equivalent to USD83,142.33. The BTCL did not come up, he continues, even thereafter, either to modify or to review the aforesaid order dated 23.07.2013 passed by this Court, nor they went to the Appellate Division against the said order dated 23.7.2013. As such, the order dated 23.7.2013 has become final and conclusive and the contemners were legally bound to comply with the same. But, to the utter surprise of the petitioner and in an unprecedented manner, the contemner No. 1 and 2 have refused to obey the Court’s order dated 23.7.2013 by writing a letter No. IAS/8-6/2011/67, dated 30.09.2013, to the Manager, IFIC Bank, Stock Exchange Branch, annexed as Annexure-C to the petition for drawing up contempt proceeding. He next submits that the said letter was signed by the accused contemner Mr. Shah Farid, Deputy Director (Accounts-1), BTCL (herein after referred to as the contemner No. 2), with the approval of the then Managing Director BTCL (contemner No.1). In that letter it has been stated that BTCL has objection regarding reduction of the Bank Guarantee. The petitioner had issued a legal notice dated 19.11.2013 (Annexure-D) calling upon the contemners to complying with this courts order dated 23.07.2013, but they have not at all pay any heed to the same as well, to show the degree of their arrogance and disrespect to this court order, he adds. The learned advocate further submits that the petitioner being a party to the proceedings and they having received the Court’s order dated 13.07.2013 as well as being aware of this Court’s order dated 23.7.2013, they have deliberately flouted this Court’s order dated 23.7.2013, by refusing to obey the same, vide their letter dated 30.09.2013 (Annexure-C). The conduct of the contemners amounts to willful defiance of this Court’s order, whereby they have chosen to act according to their own decision in clear disregard of the Court’s order dated 23.7.2013, he points out. Such act of willful disregard of the order of the highest Court of the country, he proceeds, is not only unprecedented, but it is a foreshadow of the reign of lawlessness to begin and this kind of conduct can never be indulged by this court in the interest of justice and to protect the dignity and authority of this Court passing orders of binding character as contemplated in Article 112 read with Article 108 of the Constitution. He also submits that the unconditional apology offered by the contemners is not a sincere one and it has been offered only to avoid the consequence of the offending conduct of the contemners. In support of his case, the learned advocate has cited the decisions reported in 35 DLR (AD) 290: Moazzem Hossain DAG Vs. State; 1 DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish; 38 DLR (AD) 188: Abdul Karim Vs. State; 44 DLR (AD) 237: Shamsur Rahman vs. Tahera Nargis; AIR 1983 SC 1151: Ashram M Jain Vs. A T Gufta and AIR 1984 (SC) 1374: LD Jaidwal Vs. State of UP and prayed for imprisonment of the contemners awarding the highest terms and for imposing exemplary fine, which is just and proper in this case, so that the would be violators of this Court’s order can be dettered from committing contempt of court so grievous in nature.

The learned advocate Mr. Rais Uddin Ahmed, appearing for the contemner Nos. 1 and 2, submits that the contemners have offered unconditional apology and further submits that the contemners even do not justify their conduct on any excuse whatever, that they have full respect to the Court and they will never repeat such conduct in future. He also adds that, indeed, the contemners No. 1 and 2 were misguided by a letter No. IFCB/STOCK/ CREDIT/2013/1888, dated 16.09.2013 of the Manager, IFIC Bank, Stock Exchange Branch. Accordingly, he has prayed for exemption of these two contemners from the charge of contempt of court brought against them.

Having considered the contents of the letter dated 16.09.2013, Reference No. IFCB/STOCK/CREDIT/2013/1888, of the Manager, IFIC Bank, addressed to BTCL, this Court has issued a separate Rule upon one Mr. Helal Ahmed, Manger, IFIC Bank Limited, Stock Exchange Branch, 16 Motijheel C/A, Dhaka-1000, on 21.05.2014. That Rule, forming part of the same cause of action, is to be disposed of simultaneously with the instant Rule.

The Rule issued upon Mr. Helaluddin Ahmed on 21.5.2014 read as follows:

“In the course of argument made in contempt petition No. 2 of 2014 (arising out of Arbitration Application No. 27 of 2012) it has been pointed out by the learned advocate for the petitioner as well as the learned advocate for the contemner that a letter No. IAS/8-6/2011/67 dated 30.09.2013, addressed by the Contemner No. 2 to IFIC Bank Limited, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000, reference has been made to a letter No. IFCB/ STOCK/CREDIT /2013/1888 dated 16.09.2013. In that letter one Mr. Helal Ahmed, VP & Relationship Manager, IFIC Bank Limited, Stock Exchange Branch, Motijheel C/A, Dhaka-1000, asked BTCL as to whether BTCL had any objection regarding a fresh Bank guarantee for the reduced amount (as per order dated 23.7.2013 of this court).

Since, by an order dated 21.07.2013, this court has allowed the application for reduced Bank guarantee, so it was legal duty of all concerned to abide by the said order, which had acquired finality and become conclusive, since no petition to modify the said order was filed before this court, nor any appeal against said order was preferred before the Appellate Division. In the facts and circumstance recorded above, said Mr. Helal Ahmed, has prima facie, committed contempt of court by bluntly asking BTCL as to whether BTCL had any objection regarding a fresh guarantee with the reduced amount, knowing it fully well that this order was passed by the Supreme Court and it was duty of all to abide by the court’s order dated 23.07.2013 and to the act in aid of the Supreme Court, instead of preventing the course of justice or rendering the courts’ order ineffective or nullity or ridicule the court by undermining its authority. Hence, I considered it indispensable to issue a Suomoto Rule upon aforesaid Mr. Helal Ahmed, VP & Relationship Manager, IFIC Bank Limited, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000, to show cause as to why he should not convicted for committing contempt of Court, in the manner herein above stated, and be sentenced to suffer imprisonment and be fined for such term and/or for such amount, as this court may deem fit and proper.

The contemner is directed to appear in person before this court on 29.05.2014 at 10.30 a.m. in person.

All the learned Amicus Curiae have made their invaluable submissions, in the course of which they have cited relevant decisions and have also referred to the relevant Articles of the Constitution and of the law, duly noted by this Court.

The learned Amicus Curiae Mr. Rafique-Ul Huq, in the course of his submission, has made it clear that the act of contempt committed by persons who are parties to the proceeding is, no doubt, more grave in nature and is punishable accordingly. However, he has made it a point that, in the disposal of the rule the court should ascertain, on the facts and circumstances of each case, as to whether the apology offered by the petitioner is true-hearted or not. When attention of the learned Amicus Curiae was drawn to the cases reported in 1 DLR (1949) 177, 44 DLR (AD) 237 and in the AIR 1984 SC 1374, the learned Amicus Curiae has unhesitantly asserted that the views taken in those decisions, indeed, represents the correct views on the contempt jurisprudence and provides valuable guideline in arriving at decision by tis court in a contempt proceeding.

Mr. Rokanuddin Mahmud, learned Amicus Curiae, has made his submission at length. He has also referred to the cases reported in 44 DLR (AD) 237, 1 DLR (1949) 177, AIR 1984 SC 1374, 18 DLR SC 124 and 34 DLR 223. In the facts and circumstances of this case, the learned Amicus Curiae submits that, this is a clear case of defying this court’s order by the parties to the proceeding. The learned amicus curiae has posed a question as to how the contemner No. 2 has issued this letter dated 30.09.2013, raising objection to the courts order dated 23.07.2013, after long time having been ran away since the order was passed and, moreso, when the contemnors were very much aware of the order flouted by them. He next submits that the court shall take decision based on the facts and circumstances peculiar to this case. He also submits that, the court has heard at length the application, in which the petitioner prayed for reduction of the bank guarantee amount and the contemners were asked by an order dated 13.6.2013, to show cause within stipulated time, as to why the guarantee amount should not be reduced and further recorded that the court shall presume that the BTCL has no objection in reducing the bank guarantee amount if they default in showing any cause, . As such, it was duty of the contemner to abide by the Court’s order, to show cause, as called for by this court. But, they did not come up to show cause against the reduction prayed for, neither they had come before this court for setting aside or modifying the order dated 23.07.2013, nor they had preferred any appeal against the said order before the Appellate Division and, in consequence, the said order has acquired finality. They have no scope to raise any objection as if a supra body to the apex court. If apology is accepted in such a case, he submits, then it would destroy the social fabric, the litigating people will be deprived of the fruits of a proceedings decided in their favour and the rule of law will never get rooted in this country. This is a case, the learned Amicus Curiae continues, where the contemners have offered apology to avoid the consequence of committing so clear a case of contempt of court. Therefore, in this case, he maintains, the apology offered must be rejected, in the light of the ratio laid down in 44 DLR (AD) 237: Shamsur Rahman Vs. Tahera Nargis. Referring to the alarming speed of escalation of contemptuous attitude in certain quarters, the learned advocate further submits that, the court should not act mechanically to make it a routine job to accept the apology offered by the contemners. He has, rather, emphasised, that the letters and spirit of Article 112 of the Constitution should be respected and upheld by all quarters, government and nongovernment. Otherwise judgments and order of this court will have no binding character or effect, rendering the entire system of administration of justice a mere nullity. Moreover, he continued that, as has been laid down in 1 DLR (1949) 177: Crown Vs. Moulvi Abdul Rashid Tarkabagish, this case is glaring instance that shows how much correct was the apprehension of the learned Judge expressed in 1 DLR (1949) 177. He has concluded submitting that, this case justifiably warrants punishment for contempt, least to ensure an ordered society, based on rule of law, to exist and that the law abiding people should not loose their trust in the authority of this court or in the system of administration of justice. (underlining is mine)

Learned Amicus Curiae Mr. Ajmalul Hossain Q.C., commenced his submission, first of all, by addressing the issue if this Court shall, in all cases, accept the unconditional apology offered by the contemners. He maintains, that, the fact of offering apology by the Court per se proves commission of the offence of contempt and, in that event, no further investigation is required as to the factum of contempt. This alone gives rise to the liability for committing contempt. Investigation relates to ascertaining the guilt and punishment relates to the consequence, once the liability is established, he continues. Apology offered, he further submits, may be taken as a mitigating factor, but not to discharge the offenders from their liability, though it is within discretion of this court to decide whether the contemners will be exonerated and, if not, to ascertain the quantum of the punishment. The contemners had chance to avoid the act of committing contempt, he adds, by showing cause, as called for by this court, or by coming up with an appropriate application for review or modification; but they did neither. Nor they went to the Appellate Division which they ought to have done had they had any fear of consequence of flouting this Court’s order. No one can escape the obligation to comply with this Court’s order as long as it exists. He also submits that this Courts order, even if it were wrong or without jurisdiction, is binding on all concerned till the same is set aside or vacated or modified. Once the order has been passed the accused contemners were bound to obey the same. The learned amicus curiae next submits, referring to Article 39(2) of the Constitution, that the fundamental right guaranteed in that article (regarding freedom, speech, expression and the press) is also subject to the law relating to contempt of court. He then, referring to Article 7 read with Articles 39(2) and 108 of the Constitution, submits that the provisions of these Articles, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the apex Court to be exercised by the honourable Judges of this Court, so that the authority, dignity and majesty of this Court, is upheld, the rule of law and an ordered society can exist and the justice is secured to those who deserve. The people’s ‘will’, reflected in these Articles shall not be undermined, he emphasised. He has also pointed out that the contemnors have accepted this Court’s order dated 23.07.2013, by way their conduct in abstaining from showing cause, and they are bound to obey the same, and that non-compliance of this Court’s order is not a matter of option for the contemners. The unconditional apology offered, weighed in facts and circumstance of this case, has not come from heart, he adds. He has viewed, in conclusion, that this is a fit case of awarding punishment (underling is mine).

Learned amicus curiae Dr. Kazi Aktar Hamid, in his turn, submits that, the persons obliged to obey this Court’s order can defy the same only subject to undergoing the consequences that are bound to follow. If they refuse to obey or do create any obstruction in the implementation of this Court’s order then they are liable to be held guilty for and be punished for committing contempt. Once this Court passes any order then it, in substance, becomes a public order and the Court has to implement the same in the public interest, none the less to maintain an ordered society as well. So, the contemners are liable to be punished, in the facts and circumstances in this case, in the public interest and to maintain public order, trust and confidence in this Court, he emphatically argued. If this Court allows its order to be flouted in this way, as the contemners have done, then to whom the seekers of justice shall take resort to, he posed the question. Then should the people suffer injustice in despair or take the law into their own hands? He could not suppress his anxiety. Should not, inaction or indulgence on the part of this Court, in such cases, give way to the collapse of an ordered society, otherwise to be flourish and exist under our legal systems, his concern had yet to be expressed. He has asserted that, refusal to obey the Court’s order is an explicit challenge to it authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court and this cannot go unpunished with impunity. He has made submission distinguishing the civil and criminal contempt. He has concluded that this is a case where apology has been offered to escape the consequences and that cannot discharge the offenders and that appropriate punishment for committing criminal contempt would be justifiable, in this case, inasmuch as their conducts on their very face , constitute a challenge to the order passed by this Court and stand as obstruction to the administration of justice, which comes within the meaning of criminal contempt. Towards the clarification of and supporting his contention, he has referred to the ratio of the cases reported in AIR 1983 SC 1151: Ashram M. Jain Vs. AT Gupta, AIR 1943 PC 203: 19 BLT (AD) 54: Md. Riaz Uddin Khan Vs. Mahmuder Rahman and ors and the 2011 ADC 175: Shahudul Haque, IGP & another Vs. the State. He has also read out the principles laid down in those cases, duly noted by this Court (underling is mine).

The leaned amicus curiae, Mr. Manzill Murshid, with reference to the Rule, the affidavit offering unconditional apology and the queries made from the Bench, submits that, in the facts and circumstances of this case, the question is whether both the actions and the inactions of the respondents tantamount to contempt of court or not and if it does, whether acceptance of unconditional apology shall advance the cause of justice by ensuring compliance of this Court’s Order, shall uphold the rule of law or maintain the dignity of this Court as the custodian of the Constitution and protector of the Rule of law. In the present legal jurisprudence, he submits, “Contempt of Court” is nowhere defined in any statutes of the land. However, in the case of Moazzem Hossain Vs State: 35 DLR (AD) (1983) 290, 293, F. Munim, C.J. (as his lordship then was) held that, Contempt may be constituted by any conduct that brings authority of the Court into disrespect or disregard or undermines its dignity and prestige …... conduct or action causing obstructions or interfering with the course of justice is contempt. He next submits that, on the other hand, Oswald defined contempt of court as follows: “It may be said to be constituted by any conduct that tends to bring the authority and administration of law into disrespect or disregard or interfere with or prejudice parties, litigant or their witnesses during the litigation” [Contempt of Court, 1910, p.6]. He then adds that, contempt has been classified into three categories in the case of Abdul Halim (Md) vs Dr. Md. Tareque, reported in 63 DLR 465 (para-13), such as-

Scandalization of court
Disobedience to the orders of the court and
Interference with the due course of justice. In the instant case, he points out, the actions of the contemnor-respondents falls within the mischief of the last two categories.

Mr. Murshid has also cited the case of Mahbubur Rahman Sikder and ors vs Mujibur Rahman Sikder and Ors: 35 DLR (AD) 203, wherein it was held that willful disobedience to the order of the court or willful breach of the undertaking given to the court is contempt of Court.

He then, referring to the facts of this case, continued that the respondent’s actions i.e. informing the IFIC Bank, vide their objection raised in their letter dated 30.09.13 (Annexure-C), as to the reduction of the amount of the Bank Guarantee (BG), is as a clear obstruction, indeed giving damn, to the order dated 23.07.13 of this Court. This refusal to comply with the courts order, when it has become final, discloses a serious case of committing contempt of court by the contemners. On the other hand, their inactions to give reply to the order to show cause as per, dated 13.06.2013 as well as non-appearance before this Court, for explaining as to why the amount of the BG shall not be reduced to BDT: 68,17,671.00, is also a clear and deliberate refusal to obey order of this Court and, moreover, ignoring the initial or first stage to avoid the contempt proceeding. The contemnor-respondents had full knowledge of the orders of this Court, and the contemners Nos. 1 and 2 have defied this Court’s order as many as on 4(four) occasions. This not only aggravates their offence, but, at the same time shows the extent of their arrogance and attitude of the contemners in showing disrespect to the authority of this court. The respondents have repeatedly shown utmost disregard towards their duty to implement the binding order of this Court and committed contempt on the face of the court, in substance. In the said premises, Mr. Murshid argues, the contemnor-respondents appeared before this court on 19.02.14 and sought unconditional apology stating that they have already complied with the order of the Court dated 23.07.13. But, this is done only after the proceedings for contempt had been initiated, by issuing a Rule.

Next, in the facts and circumstances of this case, the learned Amicus Curiae, Mr. Murshid has placed series of decisions of Appellate Division in the matter of accepting of apology. In considering whether the apology should be accepted or not, the learned Amicus Curiae points out that, in the case of Abdul Karim Sarekr v the State and another: 38 DLR (AD) 188, Fazle Munim C.J. (as his lordship then was) mentioned five facts to be considered. They are:

whether the appellant appreciated that his act was within the mischief of contempt;
whether he regretted it ;
whether his regret was sincere;
whether it was accompanied with expression of the resolution never to repeat again and
Whether he made humble submission to the authority of the court.

In view of the above noted five criteria vis-à-vis their conduct, he continues, the apology of the contemnor-respondents does not seem to be sincere. Rather their apology was a paper apology ‘coming from the pen not from his heart’ as is observed in the case of L.D. Jaikwal v State of UP: AIR 1984 SC 1374, relied upon in 38 DLR (AD) 188. Since, inspite of having full knowledge of the order dated 23.07.13, the respondents have repeatedly obstructed implementation of the said order in the manner aforesaid, so the apology offered cannot be considered as sincere apology, he submits. Rather, the prayer for unconditional apology has been made only, after issuance of the Rule, he points out, to escape the consequences for committing contempt. No other coherent conclusion but this can be drawn in the facts and circumstances of the instant case. The learned amicus curiae, next submits, on this issue, that in the case of The State Vs Nazrul Islam, Advocate: 37 DLR 200, (paragraph-7), it was held that a court of law will not be satisfied with a mechanical offer of an unconditional apology unless the contemnor purges himself of the offence of contempt of Court. In the case of A.K. M.A Awal v The State: 16 DLR (SC) 429 (para-20), it was held that in contempt cases courts have never accepted the apology of a person who does not admit that he has committed any offence. What is called unconditional apology necessarily means that there should be an admission as to the commission of contempt.

Learned amicus curiae Mr. Murshid elaborates, that, in spite of being unconditional apology, it was not accepted in the case of Vineet Kumar Mathur v India: 7 SCC 714 (para-10). In that case it was held that where the violation of the court’s order was deliberate and pre-planned indicating certain defiant attitude on the part of the contemnors, the court refused to accept the unconditional apology. In the similar way, he adds to the series, the case of Shamsur Rahman Vs Tahera Nargis: 44 DLR (AD) 237 (para-12), per A. T. M. Afzal, J (as his lordship then was), where the apex court has held that apology is an act of contrition and continued further that if the apology is qualified, hesitating and sought to be used as a device to escape the consequences of the contemnor’s action, it must be rejected. Here, he submits, the apology has been used as a device to escape the consequence of the contemner’s action.

Next, referring to the facts and circumstances peculiar to this case, Mr. Murshid, next submits that, in the instant case, this Court allowed the application for reduction of BG considering the fact that the reduced amount covers the disputed claim and after allowing the contemners an opportunity to show cause as to why the amount of BG should not be reduced. But, the contemners did not come up to show any cause against reduction of BG amount, inspite of the fact that this court has recorded, in order dated 23.07.2013, that should they fail to show cause then it will be deemed that they have no objection in reducing the amount of BG, as prayed for. To my view, he adds, this Court passed the order on merit and considering that the disputed amount of BDT68,17,671.00 covers the amount which the BTCL has claimed and which is subject matter of arbitration. However, in spite of having full knowledge of the order dated 23.07.13 and received a legal notice dated 19.11.2013 (Annexure-D), the respondent Nos. 1 and 2 have flatly refused implementation of the said order, as if it was a matter of their sweet will, and having done so, the respondent came before this Court with unconditional apology; the intent of which is obvious. He went on to submit, that the contemnor-respondents did not comply with the order of this Court and have challenged the authority of this Court and thereby attempted to frustrate the administration of justice and the rule of law. Besides, in this case, the contemnor-respondents, though did not justify their action at the time of seeking apology, however, before offering that apology they have raised objection as to reduction of BG defying the written order of this court, dated 23.07.13 and paying no heed to the legal notice dated 19.11.2013 (Annexure-D) demanding compliance, yet not coming up with any explanation as to why the BG amount should not be reduced, pursuant to this court’s order dated 13.06.2013. Hence, their apology has been offered just to avoid the consequences of contempt of grave nature, he reiterated, and the contemnor-respondents should not be exonerated. Rather they should be punished for repeated disobedience and disregarding the order of this Court as well as for undermining the dignity and majesty of this court. He next adds, the case of Elders Ltd. v Sunil Chandra Chowdhury and another: 54 DLR 226, (para 5), Syed Amirul Islam, J. (as his lordship then was), emphasized on the action rather than intention of the contemnors. His Lordship held that it is the effect of the contemnor’s action which is to be taken into consideration in deciding whether contempt was committed or not. In the instant case the actions and inactions of the contemnor-respondents will also have to be considered in assessing and determination of the gravity of the offence and the punishment to be awarded. He has, referring to the leading case of The Crown Vs. Moulvi Abdul Rashid Tarkabagish M.L.A. of Serajgonj: 1 DLR (1949) 177, 181, submits that, Ellis J. while refusing to accept the apology observed that: “To accept it, would inevitably create the impression that contempt of this kind, however much they may be condemned in theory, can in practice be purged by an expression of regret. Such an impression would be indeed disastrous and would do nothing to deter others in the position of the Moulvi Sahib from interfering with the course of justice. From our part, we are determined to see that such interference shall be visited with a prompt and deterrent punishment.” In the facts and in view of the decisions cited, being clearly applicable to the case in hand, the apology offered by the contemners is liable to be rejected, he concludes. (emphasis added)

I have heard the learned amicus curiae, perused the order dated 13.06.2013 and 23.7.2013 passed in Arbitration Application No. 27 of 2012, the petition for drawing contempt proceeding alongwith the documents annexed, the Rule, the affidavit filed by the contemners and have also consulted the decision cited above.

The facts leading to issuance of the Rule, registered as Contempt Petition No. 2 of 2014 has been recorded herein above as well as the facts and arguments have also been noted, alongwith the case law referred to in the course of arguments.

In the instant case, as revealed from the materials on record, the contemnor-respondents had full knowledge of both orders dated 13.06.2013 and 23.07.2013, contents of which have been noted herein above. The contemnors Nos. 1 and 2 have (1) willfully and deliberately violated the orders of this Court; (2) they did not come up to show cause as to why the BG amount should not be reduced, as they were required to, vide order dated 13.06.2013 passed in the Arbitration Application No. 27 of 2012;(3) they have refused to comply with the order dated 23.07.2013, passed in the said Arbitration Application, reducing the BG amount to the extent that covers the disputed claim, vide their letter dated 30.09.2013 (Annexure-C) addressed to the Manager, IFIC Bank, Stock Exchange Branch; (4) they did not come up before this court to review or to modify or to set aside the order dated 23.7.2014; (5) they did not go to the Appellate Division against said order, though they could have taken any of these steps if they had minimum fear about the consequence of flouting this court’s order; (6) They were not hesitant to wield their muscle in that they even did not pay any heed to the legal notice dated 19.11.2013 (Annexure-D), issued upon them (contemners Nos. 1 and 2) demanding that they should comply with the order dated 23.07.2013, passed by this court, quoting the very order in the legal notice, setting forth the facts and law in detail: (7) in doing so, in a repeated fashion, the contemners have flouted the aforesaid orders of the Court and the demand made in the legal notice showing a degree of arrogance hitherto unknown and gave a damn to this Court’s order of binding character and (8) thereby, they have deliberately defied to comply with same.

In the facts and circumstances of this case, this Court does not consider their apology, as sincere one. Besides, the apology, in my considered view, has been offered only to escape the consequence of committing contempt of this court, showing utter disrespect and giving clear damn to the authority and dignity of this court. It is not material in such a case at what stage the apology has been offered, though in the instant case the contemners had four occasions to comply with this court’s order, before seeking apology after issuance of the Rule on 23.01.2014.

I have also considered the views expressed by the Supreme Court of Pakistan in Re: contempt of court proceedings against General (Retd) Mirza Aslam Beg. It has been held in that case (at paragraph No. 8) that, “It is accepted as legal proposition that a Judge who stops summarily (brevi manu), any attempt (contempt) to interfere with the course of justice actually performs his Constitutional and public duty. The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved. These are accepted rules in the dispensation of justice in contempt cases. It may be emphasized here that in this context when the Judge takes up the proceedings or acts in response to direct contempt the proceedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”

In the facts and circumstances of this case, I find all the decisions cited above apply to this case. The contemners No. 1 and 2 have, by their repeated defiance have aggravated the offence, gave an impression that they have unquestionable might and power to flout orders of this court giving a damn to it, that they are persons superior to this court and that they are untouchable or that the hands of the court are too short to reach them.

Hence, in a case like this, as has been rightly pointed out by the learned amicus curiae, this court should not accept the apology offered as a routine job or without taking into consideration the conduct of the contemners and its effect in defeating the course of justice. In respectful allegiance to the ratio decided in the cases cited above, and being anxious that least it will disseminate an impression that this Court’s orders can be flouted at one’s sweet will, subject only to taking a bit discomfort in filing an affidavit seeking unconditional apology, will no doubt ridicule this Court and render its authority exists in theory only, resulting to the deteriation of an ordered society to exist and grow, based on the rule of law. To give way to such arrogant, audacious and repeated acts of defiance, as recorded hereinabove, would no doubt result in indulging many others, of any stratum of the society, to flout this court’s order of binding charter and to allow an era of lawlessness to begin, which this court is oath bound to prevent. This court’s voice must be louder enough to be heard by those who are bound to comply with the same.

This Court should ensure effectiveness and workability of the administration of justice system and the rule of law to sustain in this country, by awarding appropriate punishment to the offenders, without discrimination as well as letting all concerned to hear the voice of this Court and to understand that the age old proverb that the hands of this court is long enough to reach any offender. At the same time the admonition of Mr. Elis J (as his lordship then was) should be given weight to, albeit it is too late an stage to realize the truth and accuracy in his lordship’s admonition, vide 1 DLR (1949) 177, quoted above.

I have considered the conduct of contemner No. 2, Mr. Shah Farid Deputy Director, (Accounts-1) of BTCL, at the relevant time. He has, in my view, as a subordinate officer, complied with the instruction of the contemner No. 1, in writing letter dated 30.09.2013 under ref No. IAS/8-6/2011/67, (Annexure-C), raising objection to the bank concerned and thereby defying to obey this court’s order dated 23.07.2013. Similarly, I have also reviewed the conduct of Mr. Helal Ahmed, Manager, IFIC Bank, Stock Exchange Branch, 16, Motijheel C/A, Dhaka-1000. In the petition for drawing contempt proceeding it has been stated that he has complied with this court’s order. Besides, his explanation that, by his aforesaid letter he has only wanted to know from BTCL if they had taken any step to modify or review or set aside the order dated 23.07.2013, although the expression was not proper, it was candidly admitted. Considering this explanation, alongwith the statements made in the petition that he has complied with court’s order, I am inclined to give him benefit of doubt. Therefore the apology offered by Mr. Shah Farid of BTCL, being a subordinate officer, and Mr. Helal Ahmed of IFIC Bank are accepted and they are hereby discharged from the charges, with warning to be cautious in future in their dealings in court matters. (underling is mine)

However, for the reasons as well as in the facts and circumstances recorded hereinbefore and having considered the degree of proof required to decide such a case alongwith the nature of this proceedings, I find, on the contrary, that Mr. S.O.M. Kalimullah, Managing Director, BTCL, (retired after the proceedings was initiated), is guilty of repeatedly committing the offence of contempt of court. Besides, I have considered the aggravating and extenuating circumstances. I find no extenuating circumstances in this case. The aggravating factors, has been noted hereinabove. Moreover, Contemner No. 1, instead of prohibiting defiance of this Court’s order dated 23.7.2013, knowingly gave approval to his subordinate Officer, to write the letter dated 30.09.2013 (Annexure-C), for which he alone should be saddled with the liability for committing Contempt of Court. (emphasis added)

Before parting of, in view of the provisions laid down in Article 111 read with Article 108 of the Constitution, in the facts and circumstances of this case, I further declare, as law forming part of the contempt jurisprudence and jurisdiction, so far as the nature, duty of this court and procedure is concerned that,

This court should not act mechanically, to make it a routine job, in accepting the apology offered by the contemners, in each and every case. Rather, this Court has to ensure that the letters and spirit of Article 112 and Article 109 of the Constitution are respected and upheld by all quarters, government and non-government;
Apology offered may be taken as a mitigating factor, but not to discharge the contemner from their liability, though it is within discretion of this court to decide whether the contemners will be discharged or not and, if not, to ascertain the quantum of the punishment.
Article 7 read with Articles 39(2), 108, 111 and 112 of the Constitution, considered together and with reference to the scheme of the Constitution, make it abundantly clear that the peoples power to punish the contemner has been invested in the Supreme Court to be exercised by the honourable Judges of this Court, so that the authority, dignity and majesty of this Court is upheld, an ordered society based on the rule of law can exist and the justice is even handedly secured to those who deserve. The people’s ‘will’, reflected in the Articles, referred to hereinabove, should be given effect to by this Court, without any discrimination.
Once this Court passes any binding order in any proceeding then it, in substance, becomes a public order and this Court is legally entrusted to implement the same in the public interest and the rule of law to prevail.
Refusal to obey this Court’s order is an explicit challenge to it’s authority and is a breach of public order by an arrogant party having no fear in undermining and in ridiculing the authority of this Court, rendering its judgment and order a nullity and such conduct cannot go unpunished with impunity, moreover, in such a case it is immaterial at what stage the apology is offered.
That the power of the Supreme court, the Appellate Division and the High Court Division, being the court of records, as embodied under Article 108 of the Constitution of the People's Republic of Bangladesh, cannot be restricted and trammeled by any ordinary legislation including the Contempt of Courts Act[even if enacted] and their inherent power is elastic, unfettered and not subjected to any time limit. [Following the ratio decided in the case of Pritam Pal v. High Court of Madhya Pradesh, Jabalpur, AIR 1992 SC 904,with reference to Articles 129 and 215 of the Constitution of India].
“It is accepted as legal proposition that a Judge who stops summarily (brevi manu), any attempt (contempt) to interfere with the course of justice actually performs his Constitutional and public duty. The duty of a Judge sitting to punish the Court’s own contempt, therefore, means to prevent and stifle any damage to public confidence in an important organ of the State and not the protection of the individual Judges. No personal interest is therefore involved. These are accepted rules in the dispensation of justice in contempt cases. It may be emphasized here that in this context when the Judge takes up the proceedings or acts in response to direct contempt the proceedings are not to take the form of the trial and the same may be concluded brevi manu which means “summarily”. It is not thus necessary that there be a written charge, framing of issues, or to hold regular trial or examination – No other proof is necessary when it is a case of direct contempt.”, as has been held by his lordship Mr. Justice Muhammad Asfzal Zullah, the Chief Justice of Pakistan (as his lordship then was) in Re: Contempt of court proceedings against General (Retd) Mirza Aslam Beg.
Compliance of the Court’s order cannot be treated as an extenuating circumstances in all cases, since it is duty of the person concerned to obey the same. However, if the Court is satisfied that non-compliance was not deliberate or international, or that the contemner was not at all aware of the order required to be complied with or if the order to be complied with was lacking clarity to such an extent that the duty to comply with the same was honestly not comprehensible to the person(s) obliged to comply the court’s order, then the court should take lenient view.
Contempt by a person who is a party to the proceedings and contempt by a person who is not such a party, cannot be weighed on the same scale. However, gravity of the offence does not depend on the question as to whether the contemner was a party or act, but upon the nature of the offence.

In the result, the Rule issued in Contempt Petition No. 2 of 2014 is made absolute-in-part. The Suomoto Rule No. 2 of 2014 is discharged.

ORDER:

In view of the applicable law and the findings recorded herein above, Mr. S.O.M. Kalimullah, son of late Mohammad Dayem Mia, 28/2, Baily Road, Dhaka-1000, Managing Director, BTCL, at the time of drawing the proceeding, (now retired), is hereby held guilty of committing contempt of this court. His apology is rejected. Further, considering the aggravating factors, hereinbefore recorded at paragraph number 23, he is hereby sentenced to suffer simple imprisonment for a period of 4(four) months, with immediate effect and to pay a fine of Taka 1,00,000.00 (one lac), to be deposited in Bangladesh Bank under the concerned.

Palash Kumar Saha and another Vs. Santosh Chandra Roy and others

Case No: Civil Petition for Leave to Appeal No. 556 of 2006.

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Md. Abdul Quayum,,

Citation: V ADC (2008) 944

Case Year: 2008

Appellant: Palash Kumar Saha and another

Respondent: Santosh Chandra Roy and others

Subject: Property Law,

Delivery Date: 2007-11-18

Palash Kumar Saha and another Vs. Santosh Chandra Roy and others
V ADC (2008) 944

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J

Palash Kumar Saha and another ………………..Petitioners
Vs.
Santosh Chandra Roy and others ………………Respondents

Judgment
November 18, 2007.

Banamali was the owner to the extent of eight anas share, Ramesh Chandra Das was the owner to the extent of four anas share and Harendra Hath and Babu Ram Das were the owner to the extent of two anas share in each of the plot in question as it was stated in the plaint. …. (4)

The learned trial Judge while trying the suit framed as many as seven issues as to whether the suit is maintainable in its present form, whether the suit is barred by limitation and by principle of waiver, estoppels and acquiescence and by principle of adverse possession, whether the suit is valued and stamped properly; as to whether the plaintiff has got any right, title and interest over the suit land; whether the suit is bad for defect of parties; whether the plaintiff is entitled to get relief as prayed for and whether the plaintiff is entitled to get any other relief. … (6)

Lawyers Involved:
Abdul Quayum, Senior Advocate, instructed by Bivash Chandra Biswas,
Advocate-on-Record-For the Petitioners.
Not Represented -For the Respondents.

Civil Petition for Leave to Appeal No. 556 of 2006.
(From the judgment and order dated 25.10.2005 passed by the High Court Division in Civil Revision No. 243 of 1987.)

Judgment

Md. Joynul Abedin J. - This petition for leave to appeal is directed against the judgment and order dated 25.10.2005 passed by a Division Bench of the High Court Division in Civil Revision No. 243 of 1987 discharging the rule.

2. The case of the plaintiff, in short, is that the suit jama appertains 25 decimals of land originally belonged to Banomali Das to the extent of eight anas share, Ramesh Chandra Das to the extent of four annas share, Harendra Nath Das and Babu Ram Das to the extent of two anas each. Banomali Das died leaving behind three sons defendant No.1, Surendra Chandra. The defendant No. 2, Taruni Chandra and Ramesh Chandra. Ramesh Chandra died leaving behind his brother Surandra Chandra and Taruni Chandra as his heirs. The another co-sharer, recorded tenant Ramesh Chandra also died leaving behind his son Manoj Kumar Das, the defendant No.3; Babu Ram died leaving behind two sons, Manindra Nath Das, the defendant No.8, and Fanindra Nath Das. Fanindra died unmarried and as such his share devolved upon his full brother, the defendant No.8. Harandra Nath Das died leaving behind his widow Charubala Das who inherited his share. There exits a path way in the middle of the suit plot stretching north-south and is about 4 cubit in measurement in width. The defendant Nos.1-3 is possessing the northern part of the suit plot for a period of more than 25-26 years. The defendant Nos.1-3 sold out some portion of their share to the defendant Nos. 4, 5 and 6 Charubala, the widow of Harendra Nath sold out her entire share to the defendant No.7 and delivered possession. The defendant No. 8, Manindra has sold out 4½ decimals of land to the plaintiff by a registered deed of kabala dated 25.2.1975 and delivered possession. The plaintiff has been possessing the land since the date of kabala. But in the middle of Ashhin 1384 Bangla Shal, the defendant No.1 in collusion with the defendant Nos.2-3 and at the instance of the defendant No. 6 enclosed insider the land of the plaintiff and constructed a chala ghar and thus illegally dispossessed the plaintiff from the suit land and the defendants refused to remove those chala ghar from the suit land and hence the suit.

3. The defendant No.7 entered appearance and filed an application for separate saham contending, inter alia, that the recorded tenant Harendra Nath Das having his share to the extent of two anas, died leaving behind his only widow Charubala. And this defendant has purchased the entire two anas share measuring 5 decimals of land from Charubala, the said widow of Harendra Nath by registered deed of kabala dated 8.3.1975 at appropriate consideration. Charubala delivered possession to the defendant No. 7 who constructed dwelling house from south-west corner of the plot in question and has been possessing by paying rent to the Government since purchase and as such the defendant No.7 is praying for separate saham in respect of the said land.

4. The defendant Nos.1-4 have contested the suit by filing joint written statement denying all the material allegation as set forth in the plaint. The case of the defendant Nos.1-4, in short, is that Banamali was the owner to the extent of eight anas share, Ramesh Chandra Das was the owner to the extent of four anas share and Harendra Hath and Babu Ram Das were the owner to the extent of two anas share in each of the plot in question as it was stated in the plaint. There is a path way dividing the plot in the middle extending to north south for easy movement of the co-sharers. The defendant No.1 as the heir of Banomali is possessing the share of Banamali from the northern side of the plot, both sides of the path way. The defendant No.3 Monoj Kumar, the son of the recorded tenant Ramesh Chandra sold out his share to the defendant Nos. 5-6. The defendant No.6 sold out his purchased land to Faku Ram. The defendant No.8, the heir of the recorded tenant Babu Ram Das and the defendant No. 5 have been possessing their respective share. The defendant Banamali died leaving behind three sons, Surendra Nath Das, the defendant No.1, Taruni Chandra Das, the defendant No.2 and Ramesh Chandra Das. The recorded tenant Ramesh Chandra died leaving behind his son Manoj Kumar Das, the defendant No.3. The defendants Nos.1-3 have got right, title and possession to the extent of two anas eight pies. The recorded tenant Ramesh Chandra Das died his four anas share was inherited by the defendant Nos.1-3, Harendra Nath Das and Babu Ram Sas. The defendant Nos.1-3 have got share together to the extent of one ana four pies share from Ramesh Chandra while Harendra Nath and Babu Ram have got the share to the extent of one ana four pies from Ramesh Chandra. The defendant Nos.1-3 have got the share to the extent of one ana four pies from Ramesh Chandra while Harendra Nath and Babu Ram have got the share to the extent of 5 1/3 pies each from Ramesh Chandra. Harendra Nath Das became the owner of the share to the extent of 2 anas+1 ana 4 pies= 3 anas 4 pies. Harendra died leaving behind two paternal Uncle's son, the defendant Nos. 1-2 and one widow Charubala who has got life interest in the property left by her husband. Thereafter Charubala died and as such, the defendant Nos. 1-2 have inherited Harendra having share to the extent of 1 ana 8 pies each left by Harendra. Thus the defendant Nos. 1-2 have got the share to the extent of 2 anas 8 pies+5 1/3 pies+1 ana 8 pies= 4 anas 9 1/3 pies each from the said jama. Taruni Chandra Das, the defendant No.2 died leaving behind his full brother, the defendant No.1 to inherit him. Thus the defendant No.1 became the owner of 9 anas 62/3 pies. The defendant No.1 has sold out 2½ decimals of land through two deeds of kabala to the defendant No.4 and delivered possession. Thereafter surendra Nath died leaving behind three sons and one widow, the defendant Nos.1-1(Ga), who are the owner of 12 1/2 decimals of land deducting the sold property measuring 2 ½ decimals of land in favour of the defendant No. 4 and these defendants are praying for separate saham.

5. The defendant No.5 has prayed for separate saham contending, inter alia, that the defendant No.3 sold out 1½ decimals of land to the defendant No.5 by registered deed of kabala dated 2.8.1975 and delivered possession. By constructing dwelling house, this defendant is residing therein.

6. The learned trial Judge while trying the suit framed as many as seven issues as to whether the suit is maintainable in its present form, whether the suit is barred by limitation and by principle of waiver, estoppels and acquiescence and by principle of adverse possession, whether the suit is valued and stamped properly; as to whether the plaintiff has got any right, title and interest over the suit land; whether the suit is bad for defect of parties; whether the plaintiff is entitled to get relief as prayed for and whether the plaintiff is entitled to get any other relief.

7. In course of trial, the plaintiff and the defendants have adduced witnesses in support of their respective claim. The learned trial judge upon careful consideration of all the evidence both oral and documentary and other materials on record passed the judgment and decree dated 23.2.1984 granting saham to all the parties including the plaintiff. The learned trial Judge found that the defendant No.7 has got right, title and possession over 5 decimals of land as such he would get saham in respect of the same.

8. The defendant No.1 being dissatisfied preferred Title Appeal No.28 of 1985 before the learned District Judge, Bogra. On transfer, the same was heard by the learned Additional District Judge, Bogra who by taking erroneous view affirmed the judgment and decree as passed by the trial court in part, with modification. The lower appellate court found that the defendant No.7 has got no right, title and interest in the suit jama because he could not prove that Charubala due to her legal necessity transferred the property by the registered deed of kabala dated 8.3.1975 to defendant No.7 and as such he will not get any saham. It was also found that the defendant Nos. 3-8 will not be entitled to get any saham.

9. Being aggrieved and dissatisfied with the aforesaid judgment and decree the defendant No.7 preferred Civil Revision No. 243 of 1987 in the High Court Division. After hearing the High Court Division discharged the rule. Thereafter being aggrieved and dissatisfied with the judgment and order of the High Court Division the petitioner filed this civil petition for leave to appeal.

10. Abdul Quayum, the learned Senior Advocate for the petitioner submits that kabala deed dated 8.3.1975 duly executed and registered by Charubala, marked as exhibit A-1, the recital of which is the best evidence of legal necessity for alienation which clearly shows that for the purpose of Sraddhya and for offering pindi at Gaya of her deceased husband Harendra Chandra Das, such alienation took place, non-consideration of such factual and legal proposition led the single Judge of the High Court Division to commit error in law which resulted in miscarriage of justice. He lastly submits that admittedly the suit is brought for the relief for declaration of title, recovery of khas possession against the defendant Nos.1-3 and for partition. No allegation against the kabala dated 8.3.1975, the exhibit mark A-1, was raised by either party to the suit. And as such the alienation was made by Charubala on the ground of legal necessity as it is evident from the recital of exhibit A-1 and the same not being controverted the single Judge of the High Court Division erred in law in not granting saham in favour of the petitioner, the heirs of the defendant No.7, which has resulted in miscarriage of justice.

11. We have heard the learned Advocate and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record has arrived at a correct decision. We therefore find no interference with the same.
Accordingly, the petition is dismissed.
Ed.

Panama Hilli Port Link Limited Vs. Infrastructure Development Company Limited and others 2017 (2) LNJ 13

Case No: Writ Petition No. 9126 of 2013

Judge: Mahmudul Hoque. J.

Court: High Court Division,

Advocate: Khandaker Mahbub Hossain, Mr. Md. Mizanur Rahman Khan,

Citation: 2017 (2) LNJ 13

Case Year: 2015

Appellant: Panama Hilli Port Link Limited

Respondent: Infrastructure Development Company Limited and others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Zubayer Rahman Chowdhurty, J.

And

Mahmudl Hoque, J.

Judgment on

29.06.2015

}

Panama Hilli Port Link Limited, House No.16, Road No. 36, CWN(C) Gulshan -2, Dhaka-1212 and another

...Petitioners.

-Versus-

Infrastructure Development Company Limited UTC Building , (Level-16), 8, Panthapath, Kawranbazar, Dhaka-1215 and others.

... Respondents

Artha Rin Adalat Ain (VIII of 2003)

Section 12

From a perusal of provisions in Section 12 of the Ain, it appears that though there is a provision for selling the mortgaged property before filing of the suit the said provision of Section 12(3) of the Ain is not mandatory, it is directory. It is in this Court’s view that non-compliance of the provisions of section 12 of the Ain cannot be a bar in instituting a suit in the Artha rin Adalat for recovery of loan against the borrower and the guarantor. In the event of noncompliance of section 12(3) of the Ain an alternative provision has been provided in section 12(6) and as such the ground taken by the Petitioner is not at all sustainable in la . . . (8)

Artha Rin Adalat Ain (VIII of 2003)

Section 7(3)

From a plain reading of the provision of section 7(3) of the Ain is also not mandatory. Moreover, in the present case as it appears from the Orders sheet the present Petitioner as Defendant appeared in suit and took time to file written statement more than once. Therefore, ground of not-compliance of the provisions relating to service of summons is not at all entertainable at this stage as the petitioners by their act and conduct have waived the said irregularities whatever in service of summons. . . . (9)

Constitution of Bangladesh, 1972

Article 102

It is true that the powers conferred upon the High Court under Article 102 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere asking of it particularly in view of the existence of efficacious alternate remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary Writ Jurisdiction of the Court. It is the duty of the Court to see that alternate remedy is first followed. ...(14)

Constitution of Bangladesh, 1972

Article 102

This Court in the exercise of its Writ Jurisdiction is not required to sit on qppeal over the Judgment and Decree of the Artha Rin Adalat unless it could be shown that the Adalat had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/ facts or that it had acted mala fide or in violation of any principle of natural Justice. . . .(15)

Constitution of Bangladesh, 1972

Article 102

Under Article 102 since its inception it has been recorded that the sound and settled principle of law is that wherever alternate and efficacious remedy is available it should be availed of before Writ Jurisdiction is sought to be exercised. In our opinion therefore, this Rule Nisi is liable to be discharged for availability of alternate remedy of appeal. . . . (16)

Lindsay Petroleum Company Vs. Prosper Armstrong Hurd, (1874) 5 PC 221; Md. Shahabuddin Khan Vs. Bangladesh, represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others, 28 BLD (HC) 294; Shitalakhaya Ice and Cold Storage Pvt. Ltd. Vs. Artha Rin Adalat No.1, Dhaka and others, 64 DLR 487; Zahirul Islam Vs. National Bank Limited and others, 46 DLR (AD), 191; Gazi M.Towfic Vs. Agrani Bank and others, 54 DLR (AD) 6 and Bangladesh Agricultural Development Corporation Vs. Artha Rin Adalat and others, 59 DLR (AD) 6 ref.

Mr. Khandaker Mahbub Hossain with

Mr. M.Taha Molla

...For the Petitioners.

Mr. Md. Mizanur Rahman Khan

... For Respondent No.1

Mr. Khan Mohammad Shameem Aziz with

Mr. Wayesh Al- Haroni and

Mr. Mohammad Bulbul Ahmed

... For the Respondent No.3.

JUDGMENT

Mahmudul Hoque,J: In this application under Article 102 of the Constitution the Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned proceeding in Artha Rin Suit No. 63 of 2011 disposed of exparte on 27.6.2013 by Judge , Artha Rin Adalat No.4, Dhaka (Annexure-L) should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2. Facts relevant for disposal of this Rule, in brief, are that the Respondents Bank as Plaintiff instituted Artha Rin Suit No. 63 of 2011 for recovery of Tk.18,25,21,844.00 against the present Petitioners and others in the Artha Rin Adalat No.4, Dhaka stating ,inter alia, that at the request of the defendant No.1 company the plaintiffs financial institutions collectively sanctioned a term loan of Tk.11,35,00,000.00 to the Defendant No.1 company against various Securities out of which the Defendants enjoyed and availed of Tk= 11,21,47,500/-. As per terms of the facility agreement the principal amount to be paid by 18 quarterly instalments of Tk.62,30,417 each with effect from 15.3.2007. The Defendants having failed to pay the outstanding instalment, requested the Plaintiffs for restructuring the existing repayment arrangement and accordingly rearrangement was done by mutual agreement on 6.9.2007. As per said arrangement the principal instalments to be repaid by 21 quarterly instalments of Tk. 56,80,263/- with effect from on 15.6.2008. But the Defendants again failed to repay the outstanding dues. For such failure of the Defendants the outstanding dues stood at Tk.12,55,15,946.00. Inspite of repeated demands made by the Plaintiffs, the Defendants failed to liquidate the outstanding liability, resultantly said liability of the Defendants stood at Tk.18,25,21,844.00 as on 15.3.2011. The Plaintiffs instituted the instant Artha Rin Suit against the Defendants for recovery of the said loan. Before filing of the suit the Plaintiffs tried to sell the mortgaged property through auction but failed because of the property mortgaged with the Plaintiffs are lease hold property.

3. The Defendant No.3 contested the suit by filing written statement and the Defendant No.2 though appeared in suit ultimately did not file written statement and contested the suit. The Artha Rin Adalat heard the suit and decreed the same against the Defendant No.3 on contest and ex parte against the other Defendants by its Judgment and Decree dated 27.6.2013. It is further stated that the Petitioner no. 2 was not aware of the filing of Artha Rin Suit No. 63 of 2011 as there was no service of summon upon him. The Petitioner came to know about the Impugned Judgment and Decree on 30.7.2013 and on search it has come to the notice of the Petitiners that the Respondents Bank obtained the decree by suppressing summons and without compliance of the provisions contained in Sections 7 and 46 of the Ain and in connivance with the Defendant No.3 in suit. At this stage the Petitioner moved this Court challenging the validity of the Judgment and Decree passed in Artha Rin Suit No. 63 of 2011 by filing this application and obtained the present Rule and Order of Stay.

4. The Respondent Nos. 1 and 3 contested the Rule. Among them only Respondent No.1 filed an Affidavit-in-Opposition denying all the material allegations made in the writ petition contending, inter alia, that the Petitioner No.1 company obtained a term loan from the Plaintiff financial institutions and failed to make payment of the said loan as per terms and conditions of the agreement. Inspite of repeated request and demand made by the Respondent-Bank, the Petitioner and others having failed to pay the outstanding dues, the Respondents as Plaintiffs instituted Artha Rin Suit against the Petitioners and others for recovery of the loan and the said Suit was decreed on contest against the Defendant No.3 and ex parte against other defendants in suit. The Petitioner No.2 appeared in the suit and took several adjournments for filing written statement but ultimately did not file written statement and refrained himself from contesting the suit for the reason best known to him. It is also stated that the statements made in the writ petition are incorrect, misleading and misinterpretation of law and facts. It is also stated that the Plaintiffs at the time of filing of the Suit submitted talabana (requisites) for the purpose of service upon the defendants as per provisions of law and alternatively published notice in the Dailies as per provisions of Section 7 of the Artha Rin Adalat Ain, 2003 (“Ain”). There was no violation of any provisions of law as alleged by the Petitioners and the Artha Rin Adalat upon compliance of necessary provisions of law and procedure legally decreed the suit and it is open for the Petitioner as Defendants in suit to prefer appeal against the Judgment and Decree of the Artha Rin Adalat under Section 41 of the Ain. Since there is provision of appeal against the Judgment and Decree of the Artha Rin Adalat the instant Writ Petition is not maintainable in law and as such the Rule Nisi is liable to be discharged.

5. Mr. Khandaker Mahbub Hossain, Senior Advocate with Mr. M.Taha Molla, the learned Advocate appearing for the Petitioners submit that the Bank as Plaintiff instituted the suit without selling the mortgaged property under Section 12 of the Ain, as such the suit is not maintainable in law. It is also argued that the plaint in suit was not presented upon compliance of section 7(3) of the Ain enclosing a proforma notification to be published in the dailies as such the suit was filed in violation of the said provision of the Ain. Mr. Hossain further submits that the suit was not filed within the time fixed under Section 46 of the Ain, as such the suit was barred by limitation . Finally Mr. Hossain submits that the Artha Rin Adalat in passing the Impugned Judgment and Decree acted mala fide and passed the Impugned Judgment and Decree in violation of law and principle of natural Justice.

6. Mr. Md. Mizanur Rahman with Mr. Md. Bulbul Ahmed, the learned Advocates appearing for the Respondent Nos. 1 and 3 respectively submit that the plaint in suit was filed upon compliance of the provisions of the Ain and there was no violation of any provisions of law and as such the allegation of the Petitioners regarding service of summons and non-compliance of provision of law is untrue, mis-leading and wholly misconceived. Referring to the Orders Sheet of the Artha Rin Suit No. 63 of 2011 Mr. Mizanur Rahman submits that it would be evident from the orders that the summons were duly served upon the Petitioner No.2 who appeared in suit as recorded in Order No. 4 dated 23.8.2011. It is also argued that the present Petitioner No.2 as Defendant No.2 in suit sought time to file written statement by filing applications on 24.10.2011 and 23.11.2011 and the said applications were allowed by the Adalat with costs. It is also submited that the Adalat referred the matter for mediation but the mediation process failed. Thereafter, the Adalat framed issues and proceeded with the hearing and finally decreed the suit against the Defendants and as such there was no violation of any provision of law. Mr. Rahman finally submits that there is an efficacious remedy in the form of appeal for the present Petitioner under Section 41 of the Ain against the Judgment and Decree of the Artha Rin Adalat. But the present Petitioners without taking recourse under Section 41 of the Ain moved before this Court by filing this Writ Petition under Article 102 of the Constitution of the People’s Republic of Bangladesh and as such the present Writ Petition is not maintainable in law.

7. Heard the learned Advocates for the parties, perused the application, Supplementary Affidavit, Affidavit-in-Opposition and the annexures annexed thereto.

8. In the instant Rule the Petitioner firstly raised a question that the Plaintiffs have filed the Artha Rin Suit for recovery of the loan without compliance of the provisions as contained in Section 12 of the Ain which provides that the financial institutions shall not file suit for recovery of the loan without selling the mortgaged property and making adjustment of the sale proceeds with the claim or taking any step to sell the mortgaged property. From a perusal of provisions in Section 12 of the Ain, it appears that though there is a provision for selling the mortgaged property before filing of the suit the said provision of Section 12(3) of the Ain is not mandatory, it is directory. It is in this Court’s view that non-compliance of the provisions of section 12 of the Ain can not be a bar in instituting a suit in the Artha Rin Adalat for recovery of loan against the borrower and the gurantor. In the event of non-compliance of Section 12(3) of the Ain an alternative provision has been provided in Section 12(6) and as such the ground taken by the Petitioner is not at all sustainable in law. Secondly, the Petitioner raised a question of non-supply of a proforma notice with the plaint in suit by the plaintiffs at the time of filing of the suit under Section 7(3) of the Ain for the purpose of publication in the news paper. To appreciate the point raised, Section 7(3) of the Ain may be looked into which runs thus:-

7z pje S¡l£ pÇf¢LÑa ¢hd¡ex

(1).................................

(2).................................

(3) S¡a£u °c¢eL f¢œL¡u ¢h‘¡fe fÐL¡nl j¡dÉj pje S¡l£l BN¡j hÉhÙÛ¡ ¢qp¡h h¡c£ Bl¢S c¡¢Mml pju Bc¡ma Bl¢Sl p¢qa HL¢V ej¤e¡ ¢h‘¡fe c¡¢Mm L¢lhe, Hhw Bc¡ma f§hÑha£Ñ Ef-d¡l¡l ¢hd¡e Ae¤k¡u£ LlZ£u qCm, Eš² ¢h‘¡fe¢V fÐu¡Se£u pwn¡de h¡ f¢lhaÑe p¡fr, a¡vr¢ZLi¡h S¡l£LlZl ¢e¢jš fÐu¡Se£u hÉhÙÛ¡ L¢lhe z

9. From a plain reading of the provisions quoted above this Court finds that the aforesaid provisions in Sub-section 7(3) is also not mandatory. Moreover, in the present case as it appears from the Orders sheet the present Petitioner as Defendant appeared in suit and took time to file written statement more than once. Therefore, ground of non-compliance of the provisions relating to service of summons is not at all entertainable at this stage as the petitioners by their act and conduct have waived the said irregularities whatever have had in the process of service of summons. In this regard the Case of Lindsay Petroleum Company Vs. Prosper Armstrong Hurd (1874) 5 PC 221 may be referred to, wherein Sir Barnes Peacock has observed that:

“Where it could be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or has by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, Lapse of time and delay are most material.”

10. Thirdly, the Petitioner raised a point that the suit was not filed within one year from the date of default in payment of 10% of the loan amount by the borrower as per Section 46 of the Ain. In the case of Md. Shahabuddin Khan Vs. Bangladesh, represented by the Secretary Ministry of Law, Justice and Parliamentary Affairs and others reported in 28 BLD (HC) 294 and Shitalakhaya Ice and Cold Storage Pvt. Ltd. Vs. Artha Rin Adalat No.1, Dhaka and others reported in 64 DLR 487, it has been held that:

“the provisions of Section 46 of the Ain so far it relates to the question of filing the suit by the Bank or financial institution against the borrower within specified time is directory not at all mandatory. Therefore, in any view of the matter the suit is not barred by limitation and it can not be equated with the analogy of Section 28 of the Ain.”

11. In view of the above, non-compliance of the provisions of Section 46 it can not be said that the suit is barred by limitation.

12. In the instant Rule the Petitioners challenged the validity and propriety of the Judgment and Decree passed by the Artha Rin Adalat in Artha Rin Suit No. 63 of 2011.

13. In the case of Zahirul Islam Vs. National Bank Limited and others reported in 46 DLR (AD), 191, Gazi M.Towfic Vs. Agrani Bank and others reported in 54 DLR (AD) 6, Bangladesh Agricultural Development Corporation Vs. Artha Rin Adalat and others reported in 59 DLR (AD) 6. It has been held that:

“Since special provisions for appeal has been made against the judgment and decree passed by the Artha Rin Adalat no application under Article 102 lies against such judgment and decree.”

“Therefore, the suit against the petitioner was barred by limitation and in excess of the Court’s jurisdiction are matters to be agitated in appeal and not under the writ jurisdiction.” (Per Mustafa Kamal,J:)

14. It is true that the powers conferred upon the High Court under Article 102 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere asking of it particularly in view of the existence of efficacious alternate remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary Writ Jurisdiction of the Court. It is the duty of the Court to see that alternate remedy is first followed.

15. This Court in the exercise of its Writ Jurisdiction is not required to sit on appeal over the Judgment and Decree of the Artha Rin Adalat unless it could be shown that the Adalat had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence/facts or that it had acted mala fide or in violation of any principle of natural Justice.

16. From the aforesaid discussion based on the Judgment of the Supreme Court it will be clear that through out during the subsistence of Article 102 since its inception it has been recorded that the sound and settled principle of law that whatever alternate and efficacious remedy available it should be availed of before a Writ Jurisdiction is sought to be exercised. In our opinion therefore, this Rule Nisi is liable to be discharged for availability of alternate remedy of appeal.

17. In view of the decisions referred hereinabove the remedy lies for the Petitioner in appeal only as the grounds agitated in the instant Writ Petition are the matters to be looked into by the Appellate Court sitting in appeal.

18. For the reasons stated hereinabove this Court finds no mala fide in the proceedings in Artha Rin Suit No. 63 of 2011 and in the Impugned Judgment and Decree passed by the Artha Rin Adalat No. 4, Dhaka and there was no violation of any principle of natural Justice calling for interference and as such we are inclined to discharge the Rule.

19. In the result, the Rule is discharged, without any order as to costs.

20. The Order of Stay granted at the time of issuance of the Rule is hereby recalled and stand vacated.

21. Communicate a copy of this judgment to the Court concerned.

Ed.

Writ Petition No. 9126 of 2013.

Panchalipara Ebtedaya Madrassa Vs. Abdul Kader

Case No: Civil Petition for Leave to Appeal No. 1356 of 2005.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Nurul Islam Bhuiyan,Kazi Siddiqur Rahman,,

Citation: 13 MLR (AD) (2008) 256

Case Year: 2008

Appellant: Panchalipara Ebtedaya Madrassa

Respondent: Abdul Kader

Subject: Property Law,

Delivery Date: 2007-05-20

Panchalipara Ebtedaya Madrassa Vs. Abdul Kader
13 MLR (AD) (2008) 256

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J

Panchalipara Ebtedaya Madrassa represented by Secretary Rustom Ali......... Defendant-Petitioner
Vs.
Abdul Kader..........Plaintiff-Respondent

Judgment
May 20, 2007.

Specific Relief Act, 1877
Section 42

Deed of transfer alleged to have been executed by a minor the registration of which was refused by the Sub-Registrar on ground of the minority of the executants is no document in the eye of law on the basis of which the defendant did not acquire any right, title and interest. The trial court dismissed the suit while the appellate court below decreed the suit and the High Court Division upheld the decision of the lower appellate court. The Appellate Division having found no error in the decision of the High Court Division upheld the same and dismissed the leave petition.

It is on the record that the defendant-petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, Sirajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and possession in the suit land. … (6)

Lawyers Involved:
Nurul Islam Bhuiyan, Advocate-on-Record- For the Petitioner.
Kazi Siddiqur Rahman, Advocate-on-Record-For the Respondent

Civil Petition for Leave to Appeal No. 1356 of 2005.
(From the judgment and order dated 22nd March, 20Q5 passed by the High Court Division in Civil Revision No. 530 of 2001).

Judgment

Mohammad Fazlul Karim J.- This application under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 22.03.2005 passed by the High Court Division in Civil Revision No. 530 of 2001 discharging the Rule arising out of the judgment and decree dated 01.10.2000 passed by the Subordinate Judge, 1st Court, Kishoregonj in Other Class Appeal No. 154 of 1999 reversing those of the Assistant Judge, Katiadi, Kishoregonj in Other Class Suit No.66 of 1997 dismissing the Suit.

2. The facts in the revisional application in Civil Revision No.530 of 2001 are, inter-alia, that the plaintiff-respondent instituted Other Class Suit No.66 of 1997 in the Court of the Assistant Judge, Katiadi for declaration of title and recovery of khas possession.

3. The plaintiff case, in short, is that 0.08 acres of land of Plot No.1069 of C.S. Khatian No.1287 originally belonged to Kalu Sheikh and Owed Ali in equal share. Kalu Sheikh transferred his 0.04 acres of land to Nawab Ali Munshi, the father of the plaintiff and Sirajuddin by deed of Heba-bil-Ewaj dated 18.03.1942. Nawab Ali died leaving behind the plaintiff as the only son, Sirajuddin transferred his share in favour of Abdul Majid, Secretary of Madrassa by the deed of gift dated 18.11.1959. At that time plaintiff was minor and consequently the execution of deed of gift and its registration were refused in respect of share of the plaintiff on the ground of his minority. The plaintiff has been possessing his 0.02 acres of land and rented to the different persons by erecting shops on it; during the pendency of the suit he was, however, dispossessed from the suit land.

4. The suit was contested by the Defendant contending, inter alia, that 0.08 (eight) acres of land of the suit Plot No. 1069 belonged to Kalu Sheikh who transferred the same in favour of his son Nawab Ali and Serajuddin by the deed of Heba-bil-Ewaj dated 18.03.1942. Nawab Ali died leaving behind plaintiff as the only son; Serajuddin who transferred 0.04 acres of land in favour of Madrassa by registered deed dated 18.11.1959 in favour of Abdul Majid representing the Madrassa as Secretary. Possession of the suit land was delivered in favour of the Madrassa and the Madrassa has been possessing the same for more then 12 years by erecting shops thereon and thereby the defendant has acquired right and title over the suit land by way of adverse possession also.

5. Mr. Nurul Islam Bhuiyan, learned Advocate-on-Record, appearing for the defendant-petitioner submits that the High Court Division based its findings on surmise, conjectures and extraneous circumstances for which the findings are liable, to be struck down; that the High Court Division committed a grave error of law occasioning failure of justice in not holding to the effect that the appellate Court below on misreading and on misinterpretation of the evidence on record allowed the appeal. and decreed the Suit being failed to appreciate the evidences on record in its proper perspective and came to an erroneous finding that the Appellate Court below reversed the judgment and decree of the trial Court without reversing the findings of the trial Court and came to wrong finding resulting in an error in decision occasioning failure of justice; that the High Court Division utterly failed to take into consideration that the appellate Court failed to appreciate that the plaintiff failed to prove his possession over the suit land and that the plaintiff failed to prove his dispossession from the suit land during pendency of the Suit; that the High Court Division committed error of law occasioning failure of justice in not considering the fact that the appellate Court below utterly failed to notice that the claim of the defendant Madrassa is that the plaintiff along with his uncle Sirajuddin executed a deed of gift in favour of the Madrassa and the defendant has acquired right, title and interest on the disputed land on the basis of the said deed and also by way of adverse possession for over 12 years; that the High Court Division failed to detect that the lower appellate Court seriously lost sight of the clear and categorical finding of the trial Court to the effect.

6. It is on the record that the defendant-petitioner Madrasha claimed the land on a deed executed by the plaintiff, Abdul Kader along with his uncle, Sirajuddin but the plaintiff denied the fact. On perusal of the Exhibit-'Ka' it appears that the plaintiff was a minor at the time of execution of the said deed for which the sub-registrar refused to register that deed. As such the same cannot be a deed in the eye of law and it has no value in the eye of law. So, the defendant could not claim that he has acquired any right, title and possession in the suit land.
In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.
Accordingly, the application is dismissed.
Ed.

Pankaj Bhattacharya and others Vs. Bangladesh and others 2017 (2) LNJ 203

Case No: Writ Petition No. 12042 of 2014

Judge: Gobinda Chandra Tagore. J.

Court: High Court Division,

Advocate: Mr. Subrata Chowdhury, Mr. A.S.M. Nazrul Haque,

Citation: 2017 (2) LNJ 203

Case Year: 2016

Appellant: Pankaj Bhattacharya and others

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-11-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Gobinda Chandra Tagore, J.

And

Abu Taher Md. Saifur Rahman, J.

Judgment on

08.09.2016

}

Pankaj Bhattacharya and others

. . .Petitioners

-Versus-

Bangladesh, represented by the Secretary, Ministry of Liberation War Affairs and others

. . .Respondents

Jatiya Muktijoddha Council Ain (VIII of 2002)

Section 7(Jha)

The council is authorised to make any recommendation to the government for cancellation of any forged and false certificate or verification as freedom fighter only. However, the impugned notification does not disclose that the list of the members of the said special Guerrilla Force published in the earlier notification dated 22.07.2013, was either forged or false; rather it was published after scrutiny. The law does not bar to certify jointly all the members of the freedom fighters, who fought under a command. Since there is no provision in the law as to whether each and every freedom fighter has to apply individually or jointly, we do not find any illegality in publishing the notification dated 22.07.2013. Accordingly, there is no cogent reason in canceling the earlier notification dated 22.07.2013 by the impugned notification dated 29.10.2014 published in the Gazette notification on 05.11.2014. ...(33 to 34 and 36)

Mr. Subrata Chowdhury with

Mr. Md. Zahedul Bari,

Mr. Tabarak Hossain,

Mr. S.M.A. Sabur,

Mr. Golam Mohammad Chowdhury,

Mr. Nafis Ahmed Chowdhury,

Mr. Md. Shafiqur Rahman,

Ms. Masuda Rehana Begum,

Mr. Md. Rajab Ali,

Ms. Fatema Sultana,

Mr. Md. Nasimul Hasan, Advocate

. . . For the petitioners

Mr. A.S.M. Nazmul Haque, D.A.G. with

Mr. Bibhuti Bhushan Biswas, A.A.G.

Mr. Sadhan Kumar Banik, A.A.G.

. . . For the respondent Nos.1-2

Mr. S.M. Rezaul Karim, Advocate

. . . For the respondent No.3

JUDGMENT

Gobinda Chandra Tagore, J: On an application under Article 102(2)(a)(ii) of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon respondents to show cause as to why the Notification vide Memo No. 48.00.0000. 004. 75.105 (Angsha-2)2012-1488 dated 29.10.2014 published in the Bangladesh Gazette on 05.11.2014 under the signature of respondent No.2, Annexure-C cancelling the Gazette Notification under Memo No. 48.00.0000.004 .37.149.2013-439 dated 22.07.2013 containing the name of 2367 Freedom Fighters of the “eÉ¡f-L¢jE¢eø f¡¢¡VÑ-R¡œ CE¢eue ¢hno ®N¢lm¡ h¡¢qe£”, Annexure-B by virtue of the power conferred at serial No.6 of list No.41, Schedule No.1 to the Rules of Business (Allocation of Business), 1996 as per the recommendation of the 25^th meeting of the Jatiya Muktijoddha Council held on 13.10.2014 purporting to act under section 7 (Jha) of the Jatiya Muktijoddha Council Ain, 2002 should not be declared to have been done without lawful authority and is of no legal effect and/or why such other or further order or orders as to this court may seem fit and proper, should not be passed.

2. Pending hearing of the Rule Nisi, the operation of the Notification vide Memo No. 48.00.0000.004.75.105 (Angsha-2)2012-1488 dated 29.10.2014 issued under the signature of respondent No.2 published in the Bangladesh Gazette dated 05.11.2014 as contained in Annexure-C was stayed initially for a period of 3(three) months. The order of stay was subsequently extended from time to time.

3. After issuance of the Rule Nisi, the other petitioners were added as co-petitioners upon their respective applications.

4. The averments made by the petitioners in the Writ Petition as well as their in the Supplementary Affidavit are, in brief, as follows:

The petitioner No.1 is a Freedom Fighter and a political leader. During the War of Liberation 1971, he was a member of the Central Committee of the National Awami Party (NAP). After the Independence of Bangladesh, the petitioner No.1 was elected as the General Secretary of the Central Committee of the NAP. At present, he is the President, Central Committee of the United National Awami Party. From his student life, the petitioner No.1 took an active role in the student movement of the 1960’s against the Marshal-Law-Regime of Ayub Khan. At that time he was the Executive President of the then East Pakistan Students’ Union, after the independence of Bangladesh, Bangladesh Students’ Union (BSU). For his leading role in the student movements and also in the mass movements, he was imprisoned in jail on several occasions by the then Pakistani Autocratic Regime. From the 1st March 1971, when General Yahia Khan, the then President and Chief Marshal-law-Administrator of Pakistan postponed the Session of the National Assembly sine die, the petitioner No.1 and other leaders of the NAP, the Communist Party of the then East Pakistan, after the independence of Bangladesh, the Communist Party of Bangladesh (CPB) and the BSU had been taking preparation for armed resistance against the Pakistani Army and for formation of armed forces for the liberation struggle. On the 26^th March 1971, Bangabandhu Sheikh Mujibur Rahman formally declared the Independence of Bangladesh and called upon the peoples of Bangladesh to resist the occupied Pakistani Army through armed struggle and to liberate Bangladesh.

5. The history of our liberation has been a history of prolonged struggles of the people of Bangladesh to achieve the right of their emancipation since before and after the establishment of Pakistan, which culminated into a bloody War of Liberation in 1971. NAP, CPB and BSU had also glorious and sacrificing history of struggles in the then Pakistan to establish democracy, including right of adult franchise, freedom of press, speech, and formation of organization, and also for economic liberty of the down trodden people and toiling masses. These organizations visualizing a society free from exploitation organized peasants, workers and made tremendous sacrifice. The ‘Hajong Movement’ in the then Mymensingh, ‘Tebhaga Movement’ in northern Bengal and ‘Nankar Movement’ in the greater Sylhet are few examples of their fights for the common people. In 1947 the Indo-Pak Subcontinent was divided into two States namely India and Pakistan in the name of independence. The State named Pakistan was formed with two territories with a distance of 1000 miles intervened by the territory of India. The western territory of the country was comprised of 4 provinces, namely Punjab, Sind, Baluchistan and North-West Frontiers province, while the eastern territory comprised of the East Bengal. Subsequently, the then rulers of Pakistan designated the two territories as West Pakistan and East Pakistan transforming the western provinces into the West Pakistan and the Eastern Province as the East Pakistan. The Sub-continent was divided on the basis of religious communalism known as two- nation theory, i.e. Pakistan was for the Muslims and India as the State for the believers in the other religions. Thus, the State of Pakistan was an unnatural State from the time of its birth. All India Muslim League and Indian National Congress were the main two players in dividing the subcontinent in this manner. On the 14^th August, 1947 the two countries, Pakistan and India were established.

6. The Communist party of India was established in 1920 by the communists in the Soviet Union, which was a great political event in the History of India and the leaderships of the said party subsequently organized various workers and peasants’ movements in India for which the party became one of the big political party. At the time of the division of the then India, The Communist Party found it difficult to resist the division as the religious sentiment dominated the masses of the country, but they applying the theory of National Emancipation supported the division of India into two countries, which they subsequently found to be a wrong decision and as such just after the partition of India, the Communist Party came to believe that the independence in the name of religion was not an independence within its meaning and they declared ‘Ye Azadi Dhoka Hai, Lakho Insan Bhuka Hai” and to establish a proper liberation, started armed struggles. The ‘Nankar Movement’ in Sylhet District, the ‘Hajong Movement’ in Mymensing and the ‘Tebhaga Movement’ in the northern districts of the country are the instances of the armed struggles of the Communists. After the partition, the Communist Party of India was also divided and Communist Party of Pakistan was established and in the territory now comprising of Bangladesh, the Communist Party was named as the Communist Party of East Pakistan. After the creation of Pakistan, the Muslim League rulers started oppressing on the Communists ruthlessly. Although the student-wing of the Communist Party was very active, they were not allowed to function publicly and as such they had to go into hiding.

7. Though the partition already took place, the secular forces of present Bangladesh particularly the youths were not satisfied with the Partition of India on the basis of two-nation theory and as such, soon after the establishment of Pakistan, the progressive and non-communal youth leaders like Kamaruddin Ahmed, Shamsul Haque, Taj Uddin Ahmed, Moahammad Toaha, Oli Ahad started discussion sitting in Calcutta to start new political movement in the changed situation and to that end they agreed to hold a conference in Dhaka to adopt the manifesto and started visiting various parts of the East Bengal. They held a youth conference on 6-7 September in 1947 and formed a youth organization named Democratic Youth League. In this conference Tasadduque Ahmed was made the president, but because of the rule of oppression this organization could not flourish and in 1948 the organization was abolished. On the other hand, on the 4^th of January, 1948 the East Pakistan Muslim Chatra League was established in Dhaka. Sheikh Mujubur Rahman, subsequently designated, recognized and honoured as Bangabandhu played a vital role in establishing the said Muslim Chatra League, which later played very important roles in various struggles and movements in the then Pakistan. But soon after its establishment it was found that the East Pakistan was being deprived of its legitimate shares in power, economy and developments and as such felt necessity for forming a new Political Party and to that end on 23^-24January, 1949 East Pakistan Awami Muslim League was established with Moulana Abdul Hamid Khan Bhasani as its President and Shamsul Haque as its General Secretary. Bangabandhu was elected Joint Secretary although he was in jail for supporting the strike of the Dhaka University workers. However, Awami Muslim League included many popular demands of that time in the manifesto, including the framing of a democratic constitution, granting the right of all the citizens to get food, shelter, education, clothing and treatment so that they could live with dignity, separation of the Judiciary from Executive and to guarantee the rights of speech and the press etc. The manifesto also included upholding the Islamic education and high moral values etc.

8. Before the establishment of Pakistan, the debate on the State Language started growing within the students’ community as because a muslim scholar of Alighar University declared that Pakistan should adopt Bangla as the State Language. The first session of Pakistan Constituent Assembly took place on the 23^rd February at Karachi when a motion was initiated for making Urdu as the state language from the Treasury Bench against which Dhirendra Nath Dutta, a Member of the Constituent Assembly from the then East Pakistan moved an amendment to the said motion demanding inclusion of Bangla as one of the State Languages, which was bitterly opposed by the Ruling Party members including those from this part of the country. Liakat Ali Khan criticized the proposed amendment stating that this was a move to divide and destroy Pakistan. On getting the news the student community of Bengal became furious and on the 26^th of February the students of Dhaka University, Dhaka Medical and Engineering colleges observed strike in protest of the decision. Subsequently, during the visit of Mohammed Ali Jinnah, Governor General of Pakistan in a public meeting at the then Racecourse Maidan on 21^st March 1948 while delivering a speech again he declared that Urdu to be the State Language of Pakistan and subsequently, he repeated the same in the Special Convocation of Dhaka University on the 24^th of March 1948 and there was a protest in the meeting from the audience. The Bangalee intellectuals, Dr. Muhammad Shahidullah, Syed Muztaba Ali, Ajit Guha, Ranesh Dasgupta and others started writing in favour of the demand of making Bangla as a State Language of Pakistan as Bangla was the mother tongue of the majority of the citizens of Pakistan, while Urdu was spoken by a very negligent percent of people. Thereafter, following a speech by the then Prime Minister of Pakistan, Khwaja Nazim Uddin reiterating the decision to implement Urdu as the State Language of Pakistan, the students and political leaders separately formed two All Parties Action Committees and the Communist Party involved itself in the movements from behind as the party was not allowed to function publicly.

9. On the 21^st day of February, 1952 the students created a history by sacrificing blood and becoming martyrs for the sake of recognition of Bangla as the mother language and as such this day became the red letter day in the History. After creation of a State on the basis of religious nationalism, the language movement was the beginning of growing Bangalee Nationalism at the cost of the lives of Rafique, Shafique, Barkat, Salam, and others. In the Language Movement the secular student forces took pivotal role, including the student-supporters of the Communist Party, Awami Muslim League and others. After the 21^st February, 1952 the students of the country felt necessity for forming a secular students’ organization as they understood that for uniting all the students a secular organization was the demand of the time and accordingly, East Pakistan Students’ Union (now Bangladesh Students’ Union, shortly, the BSU) was formed on the 26^th of April, 1952. Almost all the veterans of the Language Movement Students’ Action Committee took the initiative to establish this organization. Following its birth, the BSU took part in all the democratic movements individually or with other students’ organizations unitedly. In 1953 the Students Union contested the Dhaka University Central Students’ Union election jointly with the Chatra League and came out with a victory and that gave rise to enthusiasm among the democratic political leaders to form a unity to contest in the 1954 election to the East Pakistan Provincial Assembly. The Communist Party started motivating political parties to form a United Front to contest the election in order to defeat the ruling party and the students played a very important role to compel the political forces to form the United Front on the basis of 21-point program under the leadership of Sher-e-Bangla A.K Fazlul Haque, Moulana Bhasani and Hussain Shahid Suhrawardi, three stalwarts of that time. In order to keep the United Front working smoothly for the greater interest to establish Democracy, inspite of being the architect of the unity to from the Front, the Communist Party kept itself outside the Front and nominated their own candidates in the name of the party in the election. The United Front defeated Muslim League, which got only 9 seats against 309 seats. In this election 26 members of the Communist Party were elected with the ticket from the Awami Muslim League and 5 others in the name of the party itself and thus, the Communist Party played a glorious role in the election of 1954.

10. But the political history of Pakistan was a history of conspiracy by the West Pakistani rulers against the people of the then East Pakistan and after a few days of forming the Provincial Government by the United Front, the Central Government dismissed the Provincial Government and declared emergency and many political leaders including, Bangabandhu Sheikh Mujibur Rahman and the Communist leaders were arrested and kept in the prisons. Subsequently, a series of conspiracies went on in the political arena of Pakistan and in 1956 a Constitution for Pakistan was adopted. Though the Constitution did not reflect the aspiration of the people of the then East Pakistan, a possibility was there that a democratically elected Government would be formed and minimum democratic rights would be achieved.

11. During the election of 1954, the United Front obtained the mandate of the people on the 21-Point program which included provincial autonomy and also, to quit SEATO and CENTO- two treaties, which were signed by Pakistan under the influence of the ‘US Imperialism’. But Hussein Shahid Suhrawardi, a prominent Awami League Leader was made Prime Minister of Pakistan on the 12^th October, 1956 and after becoming the Prime Minister, he gave go bye to those two important programs of the United Front and there arose differences of opinions within the party. Moulana Abdul Hamid Khan Bhasani, President of Awami league convened a conference of Awami League at Kagmari, Tangail, where the differences of opinions between the followers of Moulana and Suhrawardi became sharp and as Suhrawardi claimed that with the assumption of power by him the then East Pakistan attained 98 percent of autonomy and he also differed with the demand of quitting SEATO and CENTO on the ground of his 0+0 theory. Ultimately, Awami League was divided into two parties and a new party emerged with the name of National Awami Party (NAP) in a conference of the democratic workers held on the 25^th and 26^th July 1957. Thus, the NAP came into being. Most of the members of the Communist Party, who were in the Awami League joined the party.

12. Though Hussain Shahid Suhrawardi was expecting a democratic election in Pakistan in 1959, he was dismissed from the office of the Prime Minister in October, 1957 and thereafter, there was political instability in the country and taking advantage of the situation on the 7^th October, the then President of Pakistan, Iskandar Mirza declared Martial law and abrogated the Constitution and he appointed General Ayub Khan as the Chief Martial Law Administrator. Subsequently, on the 27^th of October, Ayub Khan declared himself as the President of Pakistan. All political parties were banned and the leaders, including Moulana Bhasani and Bangabandhu Sheikh Mujibur Rahman were arrested and in this manner the hope for democracy in Pakistan was frustrated. Ayub Khan after four years of rule gave a Constitution, namely, the Basic Democracy and the one man rule of Ayub Khan continued by taking repressive measure. The students’ community again came forward to restore democracy. After the arrest of Hussain Shahid Suhrawardi, the students started continuing strike in Dhaka, which lasted up to 12 days. The Political Leaders also started activities for restoration of democracy. Leaders, including Bangbandhu Sheikh Mujibur Rahman and NAP leader Mahmud Ali signed a statement demanding the lifting of Martial law, which boosted up the political workers to come forward. In this manner the NAP participated in the movement of restoration of Democracy in 1962. In the meantime the students’ organization, namely the then East Pakistan Students’ Union took the lead in this movement and the Students’ League also actively participated in the movement.

13. In 1966, Bangabandhu declared the 6-Pint Program for the Bangalee people and the Students’ Union supported the program holding that the program would not fulfill the demands of emancipation of the toiling masses and release from the clutches of the Imperialism. The Students’ Union participated in the movement with that reservation and subsequently, the Students’ Union, along with other students’ organizations formed All Party Students Action Committee, which framed 11-Point Demand and started the movement and the movement culminated to the mass upsurge in 1969. After the declaration of the 6-Point Program, a lot of cases were filed against Bangabandhu and ultimately the Agartala Conspiracy Case was started against him and others. The students’ movement popularly known as the 11-Point Movement was successful to get release of the Bangabandhu and withdrawal of the said cases. In 1966, when the movement of 6-Point Demand was in the peak eight political parties formed Democratic Action Committee shortly, the DAC with Awami League, NAP and others. Though eight parties were there, the political leaders of Awami League and NAP mainly got the peoples’ confidence. Thus, NAP became very much a mass party of the then East Pakistan. Similarly, Students’ Union also became the biggest students’ organization having its participation and pioneering role in all the students and democratic movements. Though the Communist Party though was not allowed to function publicly, they were very active in organizing other political forces to form unity and to accelerate the movements. The upsurge of 1969 compelled Ayub Khan to quit the power. But without handing over the power to the people he handed over the power to Yahiya Khan, Chief of the Army of Pakistan, who on the face of the mass upsurge declared the date of election on the basis of one man one vote and promised to handover the power to the elected representatives of the people. After the election of 1970, when Awami League emerged as the absolute majority political party of Pakistan, it was expected that they would be allowed to form the Government. But the conspiracy went on. The Army without handing over the power started moving. Though the session of the National Assembly was called on the 3^rd of March, 1971, Yahiya Khan cancelled it on lame excuse.

14. When it became clear that Army would not hand over the power to people’s representatives, it became impossible to remain united with Pakistan and the people had no other alternative but to free the country from the Pakistani Rule. The Students’ Union in a farsighted manner realized that armed struggle was indeed needed and as such, motivated its workers to undergo training and the workers of Students’ Union, including lady members started taking training. Similarly, the NAP and CPB also advised theirs workers to be vigilant and prepare for the armed struggle and after the crack down on the 26^th March, 1971, the workers of the NAP, CPB and Students’ Union started organizing their forces for the Liberation War locally and created resistance to the occupation forces. After the declaration of Independence by Bangabandhu, the workers of these three organizations prepared themselves for the ultimate sacrifice in order to achieve the independence of the country. Thus, these three organizations directed their workers to get themselves recruited in the Liberation Forces as was organized under the leadership of Awami League wherever possible and a good number of workers got themselves recruited in the Freedom Fighters (FF). At the beginning, the Awami League leadership was not organized and as such, the workers of the NAP, CPB and Students’ Union could get entrance in the FF. But subsequently, when the Awami League leaderships were organized one section of them started creating obstruction to the recruitment of the workers of NAP, CPB and Students’ Union as the FF. From the beginning of the War of Liberation, the NAP, CPB and Students’ Union termed the War as the National Liberation War and were trying to convince the Awami League leaderships to form a National Liberation Front and also to form an All Party Government to fight the Pakistani Occupation Force. Though the Prime Minister of the Provisional Government of Bangladesh was convinced to form a United Liberation Force, he could not succeed in convincing his colleagues and as a result, that did not happen. There were many streams within the Awami League leaderships and some were opposing to the entrance of the workers of the NAP, CPB and Students’ Union in the Liberation Forces.

15. At the atrocities and genocide committed by the Pakistani Occupied Army and their local collaborators, about ten million of people had to leave their residences and took shelter in the liberated areas of Bangladesh and in the neighbouring Country, India. Since the beginning of the War of Liberation, the NAP, CPB and Students’ Union workers were coming to India. In March 1971, the leaders of the NAP, CPB and Students’ Union formed an armed liberation force in the name of Òb¨vc-KwgDwbó cvwU©-QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, hereinafter referred to as the said Guerrilla Force. The central leadership of the said Guerrilla Force was composed of Mohammad Farhad, Chowdhury Harunur Rashid, Commander Abdur Rouf, Pankaj Bhattacharya - petitioner No.1, Mujahidul Islam Selim, Colonel Reza, Osman Gani, Manzurul Ahsan Khan, Mortuza Khan, Shahadat Hossain, Shah Alam, Yafes Osman, Nizamuddin Azad, Abdul Quasem and others. Mohammad Farhad, a CPB leader was the Commander, while, from each of the three organizations one was made Deputy Commander. Thus, the petitioner No.1 was the Deputy Commander from the NAP, Osman Gani was the Deputy Commander from the CPB and Mujahidul Islam Selim was the other Deputy Commander from the BSU. In many places at the local levels with the approval and help of the Indian Administrative youth camps were set up to look after those, who went to India and to organize the guerrillas for training. In Tripura -Agartala Crafts Hostel, Agartala Karta Bari, Agratala Bordewali School BB Hostel, Gokul Nagar, Sonaimura, Dharmanagar; in Assam-Karimgonj Hindi School; in Meghalaya - Barengapara, Chandu Bhui, SisingPara, Balat and Mailam; in West Bengal - Kolkata, Ashoke Nagar, Gangarampur, Shiliguri, Atiabari Hekimgonj are the names of few camps. About 17 thousand members of these three organizations were Freedom fighters.

16. Apart from taking part in the fight in the war front, these 3 organizations played the most significant role to mobilize the Indian Left Forces and also the world opinion particularly that of the socialist bloc in support of the Liberation War. It may be mentioned that the then Chatra Union President urged the International Union of Students to support the War of Liberation of Bangladesh and similarly, Comrade Moni Singh, Communist Party Leader issued a statement urging the Soviet Government to support the War of Liberation and recognize the Provisional Government. When it became clear that the Pakistani Junta was being backed by the ‘US Imperialism’, the necessity for the supports of the Soviet Union, Socialist Camp and Non-Allied and Western Countries were felt very much. Accordingly, many leaders of the NAP, CPB and BSU visited the Socialist, Non-allied and Western countries, attended meetings in the international forums, including Afro-Asians People’s Solidarity Organizations, World Peace Council and United Nations Organization. They made an appeal to the Government and peoples of the member countries of those organisations to support the Independence of Bangladesh.To inform the world that the War of Liberation was the peoples’ war, Professor Mujaffar Ahmed, President of NAP was included in the team sent to the UNO under the leadership of Justice Abu Sayeed Choudhury and a delegation of Bangladesh was also sent to the Convention of the World Peace Council and Dewan Mahbub Ali and Dr. Sarwar Ali from the Communist Party were included therein. It may be mentioned that on the way to the returning from the World Peace Council Convention, Dewan Mahbub Ali breathed his last in the Delhi Airport. The communists and secular forces of India were also advocating for the united flight. However, under such circumstances the Indian Government extended its support for creating a combined Guerilla Force of NAP, CPB and BSU and these three organizations apart from inducting their members in regular forces started separate training in separate training camps and formed separate Special Guerilla Force with Comrade Mohammad Farhad as its Commander. The force so formed inducted their fighters inside the country and they fought heroically and many accepted the martyrdom, for instance, a group of valiant fighters laid their lives in Betiyara in the District of Comilla. They also took the initiatives that the NAP would publish a weekly newspaper, namely, the Notun Bangla and CPB would publish the Weekly Muktijudda to organize peoples’ opinion and to inspire the people within the occupied country in favour of the War of Liberation.

17. The Bangladesh Provisional Government ultimately on 08.09.1971 formed a National Advisory Committee consisting of Mr. Tazuddin Ahmed, the Prime Minister of the Provisional Government, Khandoker Mustaq Ahmed, a Cabinet Minister of the said Government, Moulana Abdul Hamid Khan Bhasani of NAP (Bhasani Group), Comrade Moni Singh of the CPB, Professor Muzaffar Ahmed, President, NAP (Muzaffar), Mr. Monoronjan Dhar of Bangladesh National Congress and two representatives of the Cabinet. The Prime Minister Tajuddin Ahmed was the Convener of the Advisory Committee. The purpose of formation of this committee was to unite the all pro-liberation political parties and organizations and to advise the Provisional Government of Bangladesh in recommending various policies and strategies. The formation of this Committee made an important impact on getting the supports of the International Communities in favour of the National Liberation Struggle of Bangladesh.

18. For participation of the Special Guerrilla Force of the NAP-CPB-BSU in the armed struggle against the Pakistani occupied army and their local collaborators and for international campaigns made the leaders of these three organisations in support of the Liberation Struggle, the international communities, particularly the Socialist and Non-allied countries, recognized the struggle of Bangladeshi People for national emancipation as the National Liberation Struggle. The Provisional Government of the People’s Republic of Bangladesh in September 1971 formally recognized the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh. The formation of the National Advisory Committee and the recognition of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Force of Bangladesh by the Provisional Government of Bangladesh made an important turning point in the history of the Liberation of Bangladesh. Immediately after the formation of the National Advisory Committee, the Republic of India and the then Union of Soviet Socialist Republic (USSR) signed a Peace, Friendship and Cooperation Treaty for 25 years. Thereafter, in the last week of October 1971, a Joint Force consisting of Bangladesh Liberation Forces and Indian Armed Forces was formed. The petitioner No.1 and other members of the said Special Guerrilla Force actively participated in front fight of the War of Liberation and in Gerrilla Operations against the Pakistani occupied army and their collaborators. For the historic role of the National Liberation Forces and the Joint Forces, the country was ultimately liberated from the Pakistani Occupied Army on the 16^th December, 1971. The role of Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ is an inevitable part of the history of the Independence of Bangladesh. The role of this Special Liberation Force has been recognized at home and abroad.

19. After the Independence of Bangladesh, the Father of the Nation, Bangabandhu Sheikh Mujibur Rahman called upon all the Freedom Fighters and their groups to surrender their arms and ammunitions. At the call of Bangabandhu Sheikh Mujibur Rahman, the Commander and the Deputy Commanders of Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ on 30.01.1972 ceremonially surrendered their arms and ammunitions to Bangabandhu Sheikh Mujibur Rahman at the National Stadium, Dhaka. As a Deputy Commander of Òb¨vc-KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ the petitioner No.1 surrendered the arms and ammunitions on behalf of the Freedom Fighters belonging to the NAP, Osman Gani on behalf of the Communist Guerrillas and Mujahidul Islam Selim on behalf of the BSU Guerrillas surrendered their arms and ammunitions. The news with photographs regarding the surrender of arms and ammunitions by the petitioner No.1 and other Deputy Commanders of the said Liberation Force was published in almost all the national daily newspaper on 31.01.1972. The photograph was also published in many of the historical books and documents containing the authentic history of our National Liberation Struggle and its subsequent events. A photograph showing surrendering of arms by the petitioner No.1to Bangabandhu Sheikh Mujibur Rahman, while, Comrade Mohammad Farhad, Commander of the Special Gerrilla Force was standing to the left side of Bangabandhu collected from such documents has been annexed and marked as Annexure-‘A’. The guerillas formally offered Guard of Honour to the President of the Republic. Bangabandhu, while addressing the Special Guerrilla Force of the NAP, CPB and BSU praised them for their heroic role in the War of Liberation.

20. The authority of all the Governments from the Provisional Government of 1971-1972 to this present Government have recognized the role and contribution of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ and the list of the members of the said Liberation Force was published in various newspapers and Official Gazette.

21. After the Independence, the Government of Bangladesh prepared the List of Freedom Fighters and published in the official Gazette wherein a great number of the Freedom Fighters belonging to the said Special Guerilla Force were included. Those three organizations were in the hope that the names of the left out Freedom Fighters would be published in the Gazette, but that did not happen. In order to secure the recognition of the Freedom Fighters of these three organizations a committee was formed with the petitioner No.1, Mujahidul Islam Selim, President of CPB, Mrs Amina Ahmed, a Presidium Member of the NAP and 3 others. They submitted a list of the left out Freedom Fighters to the concerned authority to publish the same in the official Gazette, but that was of no result. By a letter dated 3^rd June 2009 the said six leaders, including the petitioner No.1 approached the State Minister of the Ministry of the Liberation War Affairs and submitted a list of the Freedom Fighters, but that also did not work and again on 14.3.2012 the same leaders made another approach by a letter. Due to the repeated approaches and persuasion the Government was pleased to publish an incomplete list of the said Freedom Fighters vide the Notification issued under Memo. No. 48.00.0000. 004. 37.149.2013-439 dated 22.7.2013 in the official Gazette on 04.08.2013 as contained in Annexure-B. Although the names of 3491 persons were given, the Government published the list of 2367 Freedom Fighters, according to them, after scrutiny. The name of the petitioner No.1 has been published in the said Gazette at Serial No. 112 of District Chittagong at page No.6917, Annexure-‘B’. The Gazette dated 22.07.2013 contained the names of two members of the National Advisory Committee of the Provisional Government of Bangladesh namely, (1) Comrade Moni Singh at Serial No. 47, Police Station- Durgapur, District- Netrakona at Page 6865 and (2) Professor Muzaffar Ahmed, Serial No. 137, Police Station -Ramna, District- Dhaka, at page 6875. In pursuance of the aforesaid Gazette Notification the members of the b¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbx have been enjoying the honour, status and privileges as the Freedom Fighters.

22. But from the very beginning of the National Liberation Struggle an influential group of Awami League headed by Khandaker Mostaque Ahmed had been conspiring against the National Liberation Struggle. This group was identified as Pro-Pakistani and Pro-American fraction of Awami League. This fraction had been trying to harass the leaders and members of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ and had been trying to undermine their role in the National Liberation Struggle. For the conspiracy of this fraction of Awami League the process of recognition of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh by the Provisional Government of Bangladesh was delayed. The members and followers of the aforesaid group of Bangladesh Awami League is still active in undermining the role of the Òb¨vc - KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the National Liberation Struggle. At the instance of this group, Minister, Ministry of Liberation War Affairs sent DO No. 48.00.0000.100.01.001. 2014.605 dated 24.09.2014 to the petitioner No.1 and other leaders of the said Liberation Force stating that as per the resolution of the Jatiya Muktijhoddha Council adopted at it’s 23^rd Meeting held on 06.08.2014, the enlistment of the members of the said Special Guerrilla Force as Freedom Fighters was not in conformity with the Rules and each and every one would have to apply separately online by 31.10.2014 and remain present before the Upazilla Scrutiny Committee with all evidences. The DO has been quoted in the Writ Petition.

23. Having received the said DO, the leaders of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ met the Minister, Ministry of Liberation War Affairs and verbally told him that the Provisional Government of the Bangladesh and the Government of the People’s Republic of Bangladesh headed by Bangabandhu Sheikh Mujibur Rahman officially recognized the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as one of the Liberation Forces of Bangladesh and that nobody or authority, including Jatiya Muktijhoddah Council has any authority to raise any question about the recognition of the said Liberation Force and about the enlistment of its members as Freedom Fighter in the official Gazette. The leaders of the said Liberation Force further told the Minister that the publication of the names of the Freedom Fighters of the Òb¨vc KwgDwbó cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the official Gazette in no way violates any provision of the Jatiya Muktijhodda Council Ain, 2002. The Minister, Ministry of Liberation War Affairs, assured the leaders of the said Liberation Force that he would take proper step for maintaining the list of the Freedom Fighters of the said Liberation Force published in the official Gazette under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 and that the same would not be changed or disturbed in any manner. But all on a sudden, respondent No.2 published the impugned Notification under Memo No.48.00.0000.004.75.105 (Angsha-2).2012-1488 dated 29.10.2014 in the Bangladesh Gazette on 05.11.2014, Annexure-C cancelling the Gazette Notification issued under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 containing the names of 2367 Freedom Fighters of the Òb¨vc-KwgDwbó cvwU©-QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, including the names of the petitioners, Annexure-B in exercise of his authority conferred at Serial No.6 of list No. 41, Schedule No.1 to the Rules of Business (Allocation of Business), 1996 pursuant to the recommendation purportedly made under section 7(Jha) of Jatiya Muktijhoddah Council Ain, 2002 at the 25^th meeting of the Jatiya Muktijoddha Council held on 13.10.2014, Annexure-‘C’. By publishing the impugned notification the respondents have denied the status of the said Special Guerrilla Force as one of the National Liberation Forces as was recognized by the Provisional Government of Bangladesh and the subsequent Governments, including the Government headed by Bangabandhu Sheikh Mujibur Rahman. The impugned notification has been published with a mala fide intention to deprive the members of the said Special Guerrilla Force of enjoying the honour, status and privileges as Freedom Fighters. As a recognized Liberation Force by the Government the names of the Freedom Fighters of the said Special Guerrilla Force have been correctly and lawfully published in the official Gazette and the statement made in the impugned notification that the said Gazette was wrongly published is misconceived and erroneous. The impugned Gazette Notification cancelling the earlier Gazette dated 22.07.2013 was published without serving any show cause notice to the petitioners and other members of the said Special Guerrilla Force and without affording them any opportunity of being heard. In the impugned notification, the respondents did not mention as to why the Gazette Notification under Memo No. 48. 00. 0000.004.37.149.2013-439 dated 22.07.2013 was said to have been wrongly published. The provision of section 7 (Jha) of the Jatiya Muktijoddha Council Ain, 2002 is not at all applicable to the enlistment of the Freedom Fighters of the said Special Guerrilla Force and to the cancellation of the official Gazette dated 22.07.2013 containing their names. As per the provision of section 7(Jha) of the Jatiya Muktijhoddah Council Ain 2002, Jatiya Muktijhoddah Council has no authority to make any recommendation for cancelling the official Gazette containing the list of the Freedom Fighters of the said Special Guerrilla Force. On 04.12.2014 the petitioner No.1 through his learned Advocate sent a notice demanding justice upon the respondents requesting them to rescind, cancel or withdraw the notification dated 29.10.2014 immediately, but they did not respond thereto. Accordingly, the petitioners having no other alternative and efficacious remedy filed the instant Writ Petition and obtained the Rule and the order of stay.

24. Respondent No.1 i.e. the Government of Bangladesh, represented by the Secretary, Ministry of Liberation War Affairs contested the Rule by filing an Affidavit-in-Opposition contending, inter alia, that the role played by the said Special Guerrilla Force is admitted and recognized historically, but the Gazette Notification dated 22.07.2013 was not published in accordance with the Jatiya Muktijoddha Council Act, 2002 and as such, the defective Gazette Notification was cancelled by another Gazette Notification dated 29.10.2014 while, the active role played and contribution made by and on behalf of the said Special Guerrilla Force as one of the Liberation Forces of Bangladesh was recognized by the Government of Bangladesh. Since the earlier Gazette Notification dated 22.07.2013 was not published in accordance with law, the Minister of the Ministry of Liberation War Affairs requested the members of that organization to apply individually in accordance with Jatiya Muktijoddha Council Ain inasmuch as, no organization can apply for enlistment of its fellow member as the Freedom Fighter as per the provision of law. The Muktijoddha Council found mainly the defects in the earlier Gazette Notification dated 22.07.2013 such as, (i) the Gazette was published under the name of a political organization, (ii) no resolution was taken to include the list, (iii) no individual application was found, (iv) some of them was enlisted earlier vide Gazette Notification in the year 2005 on their respective applications. Then the Jatiya Muktijoddha Council at its 23^rd meeting held on 06.08.2014 discussed that the Gazette Notification dated 22.07.2013, which included the list of the members of the said Special Guerrilla Force namely, Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ was not published in accordance with law and as such, the impugned Gazette Notification was published with a view to enlist the members of the said organization in accordance with law. In such view of the matter, there being no cogent reason and cause of action in the Writ Petition, the Rule is liable to be discharged.

25. Having placed the Writ Petition, Mr. Subrata Chowdhury along with Mr. Md. Zahedul Bari,Mr. Tabarak Hossain and Mr. S.M.A. Sabur, learned Advocate appearing for the petitioners submits that in the Jatiya Muktijoddha Council Ain, 2002, there is no provision that each and every Freedom Fighter has to apply individually and independently for enlistment as Freedom Fighter and as such, the impugned Gazette Notification having no legal basis is liable to be declared to have been made without lawful authority and is of no legal effect.

26. The learned Advocate for the petitioners further submits that it is the phenomenal spirit of any war that each and every warrior has to fight under a command or under a sector and as such, in view of the spirit of the War of Liberation, 1971, the petitioners and others still hold the commanding phenomena of the War of Liberation inasmuch as all three organizations are disciplined organization and accordingly, they prepared and submitted the list maintaining the phenomenal spirit of the War.

27. The learned Advocate for the petitioners then submits that even it appears from the Affidavit-in-Opposition that certain members, who have already applied individually and independently for enlistment as Freedom Fighter, had to obtain Certificates from their respective Commander and as such, if the Commander without issuing any certificate separately issues the same jointly, there cannot be any legal defect inasmuch as, by issuing such joint certificate, the work of issuance of such certificate separately will be reduced and less laborious.

28. Mr. A.S.M. Nazmul Haque, learned Deputy Attorney General along with Mr. Bibhuti Bhushan Biswas and Mr. Sadhan Kumar Banik, both are learned Assistant Attorney General having appeared on behalf of respondent No.2 does not dispute and controvert the role played by the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ, but he only submits that the Gazette Notification dated 22.07.2013 was not prepared in accordance with law and accordingly, the subsequent Gazette Notification i.e. the impugned Gazette Notification was issued and published with a view to rectify the legal defect in preparing and publishing the earlier Gazette Notification and also to publish a fresh Gazette Notification upon individual application and hence, there being no mala fide intention or legal infirmity in issuing the impugned Gazette Notification, the Rule is liable to be discharged.

29. Mr. S.M. Rezaul Karim, learned Advocate appearing on behalf of respondent No.3 also does not deny the role played by the said Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ in the War of Liberation and he also submits that there cannot be legal difficulties if all the members file such application individually for enlisting as Freedom Fighter and accordingly, the Rule is liable to be discharged.

30. We have perused the Writ Petition along with the Supplementary Affidavit filed on behalf of the petitioners and the Affidavit-in-Opposition filed on behalf of the respondents along with the annexure thereto and heard the learned Advocates from both the sides.

31. As per the cases of both the parties, the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ played a great role in the War of Liberation, 1971. It has not been denied that the status of the said Special Guerrilla Force as one of the National Liberation Forces was recognized by the Provisional Government of Bangladesh and the subsequent Governments, including the Government headed by Bangabandhu Sheikh Mujibur Rahman. But the only dispute is whether the commanding members of said †Mwijv evwnbx can issue any joint certificate recognizing all the members, who fought under their commands as Freedom Fighters and also can apply for their enlistment or whether it is required by law that the members of the said Special Guerrilla Force should be individually recognized and certified and they are to apply individually for enlistment as Freedom Fighter.

32. Since the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ was admittedly a separate Liberation Force, nobody other than its commanding members can recognize and certify the members, who fought under their commands. Accordingly, the other Freedom Fighters, who fought under the command of any other Liberation Force or Forces may not properly and neutrally recognize and certify the members of the said Special Guerrilla Force organized by NAP, CPB and BSU as Freedom Fighters, while, the Affidavit-in-Opposition does not disclose that even any representative of the said Special Guerrilla Force has ever been included in the Muktijoddha Council or even in any the Upazilla Scrutiny Committee.

33. It appears from the impugned Gazette Notification dated 05.11.2014, Annexure-C that the impugned Notification dated 29.10.2014 was issued pursuant to the recommendation made by the Jatiya Muktijoddha Council at its 25^th meeting held on 13.10.2014 as per section 7(Jha) of the Jatiya Muktijoddha Council Ain, 2002. The relevant portion of Section 7 i.e. section 7(Jha) of the said Ain runs as follows:

ÔÔ7| KvDw›m‡ji Kvhv©ejx|- KvDw›m‡ji Kvhv©ejx nB‡e wbæiƒc, h_vt

(K) .….….….….….….….….….….….

.….….….….….….….….….….….….

(S) cÖK…Z gyw³‡hv×v‡`i ZvwjKv cÖYqb, mb`cÎ I cÖZ¨qbcÎ cÖ`v‡b Ges Rvj I f~qv mb`cÎ I cÖZ¨qbcÎ evwZ‡ji Rb¨ miKv‡ii wbKU mycvwik ‡cÖiY;

(T) ……………………………….”

34. From the language of section 7(Jha) of the said Ain it appears that thereby the Council is authorised to make any recommendation to the Government for cancellation of any forged (Rvj) and false (f~qv) certificate or verification as Freedom Fighter only. But the impugned Notification does not disclose that the list of the members of the said Special Guerrilla Force published in the earlier Notification dated 22.07.2013, Annexure-B was either forged or false; rather it was published after scrutiny.

35. We have meticulously examined the other provisions of the Jatiya Muktijoddha Council Ain, 2002. Upon such examination, we do not find any such provision in the said Ain that each and every Freedom Fighter must have to apply individually for enlistment as Freedom Fighters. Thus, even there is no directory provision, let alone any mandatory provision in the said Ain precluding the commanding members of any Liberation Force from jointly recognizing and certifying all the members of the Force as Freedom Fighter. In the other words, the law does not bar to certifying jointly all the members of the Freedom Fighters, who fought under a command.

36. Moreover, the impugned Gazette Notification does not disclose any reason as to why the earlier Gazette Notification was cancelled, while, the submission made by the learned Advocate for the petitioners that by the earlier Gazette Notification dated 22.07.2013, all the freedom fighters enlisted therein accrued a valuable right, which cannot be taken away even without giving them any chance of being heard, deserves consideration.

37. It appears that Mr. A.K.M. Mozammel Haque, Minister of the Ministry of Liberation War Affairs issued two DOs dated 24.09.2014 under his own hand addressing the petitioners and others as their “pqk¡Ü¡” wherein the Minister also recognized the petitioners and others that they fought in the War of Liberation under the command of the Òb¨vc-KwgDwb÷ cvwU© - QvÎ BDwbqb we‡kl †Mwijv evwnbxÓ as the Freedom Fighter as well as the “pqk¡Ü¡”. It would be worthy to mention here that the Minister himself is a Freedom Fighter. Since there is no provision in the law as to whether each and every Freedom Fighter has to apply individually or jointly, we do not find any illegality in publishing the Notification dated 22.07.2013. Accordingly, there is no cogent reason in cancelling the earlier Notification dated 22.07.2013, Annexure-B by the impugned Notification dated 29.10.2014 published in the Gazette Notification on 05.11.2014, Annexure-C.

38. Nevertheless, the earlier Notification dated 22.07.2013, Annexure-B being neither forged nor false, the respondents exceeded their authority under section 7(Jha) of the said Ain in cancelling the said Notification dated 22.07.2013. Accordingly, the impugned Notification dated 29.10.2014 published in the Gazette Notification on 05.11.2014, Annexure-C cancelling the earlier Notification dated 22.7.2013 published in the Gazette Notification on 04.08.2013, Annexure-B is liable to be declared to have been made without lawful authority and is of no legal effect.

39. Hence, we find merit in the Rule.

40. Accordingly, the Rule is made absolute.

41. The impugned Notification issued vide Memo No. 48.00.0000.004.75.105 (Angsha-2) 2012-1488 dated 29.10.2014 published in the Bangladesh Gazette on 05.11.2014 under the signature of respondent No.2, Annexure-C cancelling the Notification issued under Memo No. 48.00.0000.004.37.149.2013-439 dated 22.07.2013 published in the Gazette Notification on 04.08.2013 containing the names of 2367 Freedom Fighters of the “eÉ¡f- L¢jE¢eø f¡¢¡VÑ-R¡œ CE¢eue ¢hno ®N¢lm¡ h¡¢qe£”, Annexure-B is hereby declared to have been made without lawful authority and is of no legal effect.

42. Consequently, the earlier Notification dated 22.07.2013 is deemed to have been revived and accordingly, the petitioners and others, whose names were published therein as Freedom Fighters are entitled to the status, recognition, honour and prestige as well as to the allowance, benefits and privileges as the Freedom Fighter from the very beginning of the introduction of such allowance, benefits and privileges.

43. However, there would be no order as to costs.

Ed.

Writ Petition No. 12042 of 2014

Pankaj Roy Vs. Alliance Securities and others, (Muhammad Khurshid Alam Sarkar, J.)

Case No: Cmpany Matter No. 163 of 2017

Court: High Court Division,

Advocate: Mr. Akhtar Imam with Mr. Reshad Imam, Advocates ,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Pankaj Roy

Respondent: Alliance Securities & Management Limited and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(STATUTORY ORIGINAL JURISDICTION)

Muhammad Khurshid Alam Sarkar, J

Judgment on

06.02.2019

}

Pankaj Roy

. . .Petitioner

-Versus-

Alliance Securities & Management Limited and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 111

When the Supreme Court of Bangladesh, be it the High Court Division or the Appellate Division, passes a direction upon any individual or statutory body or State-functionary, it becomes a mandatory duty of this Court to compel the concerned person/statutory body/State-functionary to comply with the said direction either on arranging compromise between/among the parties or by passing appropriate Order/s, including passing contempt Order. If an Order for implementation is passed without arriving at consensus by all the parties, then, the parties will squander further invaluable working hours of this Court and, for that reason, it is a prudent practice to obtain consent directly from the parties to the case by asking them to appear in person in the Court room. . . . (10)

Words and Phrases

Recalling the Court’s order

When a party to a litigation approaches any Court with a prayer for recalling the Court’s Order/Direction which was passed modifying the original Judgment and Order on the consent of the said party, s/he must come with clean hands upon fully satisfying the Court that s/he is at once ready to comply with the original Judgment and Order. . . . (16)

Companies Act (XVIII of 1994)

Section 233

If the company is to be saved from winding up, there is no other option for the company’s directors other than to accept any one of this Court’s decision out of the above-mentioned two solutions. That is to say, either the petitioner shall purchase all the shares of the respondent nos. 2 & 3 through payment of the Pay Order to be handed over in the Court room upon execution of the share-transfer instruments instantly and the shares of respondent no. 4 shall be purchased by the petitioner in installments by depositing Bank Guarantee/s in the Court, or, in the alternative, the respondent nos. 2 & 3 shall purchase the petitioner’s entire shares with the promised solatium i.e. upon payment of the interest for delay together with the profit of the shares on top of the share-price, within the shortest possible time. . . . (19)

Words and Phrases

Duties and liabilities of an Advocate

A truly professional Advocate would consider the legal advocacy to be a noble profession and s/he would not take up a meritless brief, rather s/he would feel duty bound to discourage the people not to get involved in a frivolous or fruitless litigation. . . . (21)

Bangladesh Legal Practitioners and Bar Council Order (PO 46 of 1972)

Article 34

The members of the Bar being the integral part of the Judiciary shoulder a solemn duty of upholding the majesty of the Court and, thus, they should not interact with their clients in a way which would damage and demean the prestige of the Court. Whilst it is the professional duty of the learned Advocates to protect the interest of their clients, it does not necessarily mean that they would be driven by the whimsical request or unlawful instructions of the clients; rather they should act on their good conscience. A gutsy Advocate shall never be motivated by mere material instructions, nor shall s/he ever get involved in squabble in the open Court for satisfying the client. The learned Advocates must not take any step to waste the invaluable business-hours of the Court. The members of the Bar should bear in mind that the Court room is considered and recognized all over the world to be the most formal place where the Judges and lawyers are obligated not only to comply with the rules regarding dresses/outfittings, but also they are required to maintain their professional ethics, etiquette and norms by mindfully using the words they utter before the Court in a genteel accent as well as by showing their demeanour to be humble without having the minimum characteristics of being egotistic or arrogant. They should not be oblivious of their status that they are addressed by the Court and the commoners as the ‘learned’ which implies that they are aristocrat and intellectual by virtue of their profession & knowledge and, inherently, an intellectual or aristocrat is expected to possess all the best qualities and features of a human being, that is to say, a member of the legal profession should not be impolite, discourteous, ill-mannered and inconsiderate either in speaking or in demonstrating any other type of performance. Therefore, it is the normal expectation of this Court and the citizenry that their conduct shall introduce themselves to be not only as knowledgeable persons, but also would suggest that they are accustomed to the sophisticated manner and attitude in all spheres of their lives.

. . . (22 and 23)

AKM Asaduzzaman Vs. Public Service Commission 4 ALR 204(2) 278; Bandar Nagari Bahumukhi Samabay Samity Vs. Bangladesh 5 ALR 2015(1) 194 and Sharifa Begum Vs. Bangladesh 9 ALR 2017(1) 158 ref.

Mr. Akhtar Imam with

Mr. Reshad Imam, Advocates

. . . For the petitioner

Mr. Mejbahur Rahman, Advocate

. . . For the respondent Nos. 2 &3

Mr. Tanjib-ulAlam, Advocate

. . . For the respondent No. 4

Mr. AKM Badruddoza, Advocate

. . . For the respondent No. 8

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Original Judgment was passed in this Company Matter on 05.02.2018 and, subsequently, on the basis of the joint prayer the aforesaid Judgment and Order has been modified by this Court on 13.12.2018 and, now, when the parties to this case are required to comply with the Orders/directions passed by this Court in the aforesaid judgments, a number of applications have been filed by the different parties of this matter.

2. The relevant facts for disposal of the aforesaid applications are that Alliance Securities & Management Limited (hereinafter referred to as the company) is a private company limited by shares, incorporated under the Companies Act, 1994 (hereinafter referred to as the Companies Act) on 09.04.2006. The company is engaged in the business of buying, selling and dealing in shares, debentures, bonds and other securities. The petitioner and respondent nos. 2 to 4 (4 persons) are holding the entire shares of the company, each of them having equal 25% of the company’s shares. The petitioner approached this Court invoking Section 233 of the Companies Act, impleading the company as the respondent no. 1, three other share holders as the respondent nos. 2-4 and the Registrar of Joint Stock Companies & Firms (RJSC) as the respondent no. 8, with the following prayers;

(i) To Order the respondent nos. 2-4 jointly or severally to purchase the shares of the petitioner at a fair valuation. Or, in the alternative, order the respondent nos. 2-4 to jointly or severally sell their shares to the petitioner at a fair valuation;

(ii) In the absence of an agreement between the petitioner and the respondent nos. 2-4 as to fair valuation of the shares, pass an Order for Special Audit of the accounts of the respondent no.1-company by an independent auditor and/or expert valuer to be appointed by mutual consent of the petitioner and the respondent nos. 2-4 or in the absence of such an agreement in this regard, by the Hon’ble Court.

3. The matter was registered as Company Matter No. 163 of 2017 on 21.05.2017 and, on the following day i.e. on 22.05.2017, after the admission-hearing of the matter, it was admitted with the following interim Order;

“Accordingly, the respondent nos. 2 and 3 are hereby directed to comply at once with the provisions of Article 45 of the Articles of Association of the company and to consult with the petitioner in discharging and performing his function as the Managing Director and also in the operation of the bank accounts. The respondent Nos. 2 and 3 having exclusive control in the board and in the managing affairs of the company and apparently acting as a group against the petitioner, therefore, respondent nos. 1, 2 and 3 are hereby further directed to make arrangement with the banks of the company for signing of all cheques and for operation of the bank account, jointly under signature of 2 (two) directors, one to be the petitioner himself and another to be any one from the respondent nos. 2 or respondent No. 3”

4. Thereafter, upon observing the required legal formalities, the matter was heard at length and, then, Judgment was delivered by this Court on 05.02.2018. The operative-portion of the aforesaid Judgment runs as follows;

“Order

In view of the deliberation, recorded above,

I. The respondent nos. 2 & 3 are directed to purchase the share of the petitioner within 30^th June, 2018 for Tk. 15,11,77,431-4,90,400=15,06,87,037/- and shall submit an affidavit-in-compliance within one month thereafter.

The interim directions dated 22.05.2017, upheld in Civil Petition for Leave to Appeal No. 545 of 2017, shall continue until filing of the affidavit-in-compliance.

II. The respondent no.4 can sell his shares in the manner prescribed hereinafter. The respondent no.4, who was earlier willing to purchase the shares of the petitioner, but has later decided not to buy the same, rather intended to sell his shares. Now, he can sell the same by making 1^st offer to the respondent nos. 2&3, if they are willing to buy, and the respondent nos. 2&3 can either themselves purchase the shares of the respondent no.4 or they can purchase through their nominee.

III. Costs of legal fees of Tk. 19,61,600/- shall be borne by all the four shareholders in equal proportion, i.e at the rate of Tk. 4,90,400/-”

5. Against the aforesaid Judgment and Order dated 05.02.2018, two sets of Civil Petitions for Leave to Appeal (CPLA) were preferred before the Hon’ble Appellate Division. One CPLA was preferred by the respondent nos. 2&3 and the other one by the respondent no. 4 and eventually vide Order dated 16.07.2018 both the CPLA were dismissed by the Hon’ble Appellate Division. Thereafter, when the respondent nos. 2 & 3 were not complying with the directions passed by this Court in the Judgment and Order dated 05.02.2018, the petitioner filed a Contempt Petition against the respondent nos. 2 & 3 before a Division Bench of this Court. Simultaneously, the petitioner also filed another application for clarification of the Judgment and Order dated 05.02.2018 before this Company Bench claiming interest against the delay occurred in implementation of the aforesaid Judgment and Order, as well as for an entitlement to profit against the shares which he holds in the company. Eventually, the petitioner and the respondent nos. 2 & 3 came up with a joint application stating that the petitioner shall not pursue his above two applications (contempt petition and the application for interest & profit), as the petitioner and respondent nos. 2 & 3 out of the Court have amicably come to an understanding that the petitioner shall buy the entire shares of the respondent nos. 2 & 3 under certain terms and conditions instead of selling the petitioner’s shares. The aforesaid joint application was allowed on 13.12.2018 by this Court. Relevant portions of this Court’s aforesaid Order are quoted below:

“…………………………………………………………………………………………………………………….

Today, by filing this joint application the learned Advocate for the petitioner as well as the learned Advocate for the respondents jointly submit that the respondent nos. 2 & 3 have not been able to comply with the direction of this Court and, under the circumstances, instead of purchasing the shares of the petitioner, the respondent nos. 2 & 3 have offered to sell their own shares to the petitioner and, in order to execute this alternative arrangement, they need sanction of this Court, they continue to submit. They submit that they have mutually reached an agreement under the following terms;

(a) The Respondent Nos. 2 & 3 shall sell their entire shareholding in the Company comprising 200,000 (two hundred thousand) fully paid-up ordinary shares each (“the said shares”) to the petitioner or any person or person(s) nominated by the petitioner. The “consideration amount” for the sale of the said shares shall be as per Audit Report dated 20.11.2017 i.e. Taka 165,362,461.00 (Sixteen Crore Fifty Three Lakh Sixty Two Thousand Four Hundred and Sixty One) only and Tk. 114,475,412/00 (Eleven Crore Forty Four Lakh Seventy Five Thousand Four Hundred and Twelve) only payable by the petitioner to the respondent nos. 2 & 3 respectively, The payment of the consideration amount shall be made by the petitioner to the respondent nos. 2 & 3 by Pay Orders.

(b) The Petitioner shall be granted 30(thirty) days time from the date of receipt of the Order of this Court to purchase the said shares by paying the consideration amount to the Respondent No. 2 & 3 as per paragraph 10(a) hereinabove.

(c) The transfer of the said shares to the Petitioner and the payment of the consideration amount by the Petitioner shall take place simultaneously as far as practicable.

(d) The sole signatory of all cheques to be issued by the Company from the date of receipt of the Order of this Court shall be the Petitioner. The Parties, as a matter of formality, shall pass a Board Resolution of the Company to this effect within 24(twenty four) hours of receipt of the Order of this Court and immediately inform/communicate to the concerned Banking institutions, including respondents No. 5& 6 (The City Bank Limited and One Bank Limited), dealing with all the accounts of the company including but not limited to Fixed Deposit Receipt accounts of the company to implement the change of signatory with immediate effect in relation to all such accounts.

(e) The Petitioner shall hand over two cheques to the custody of this Court as security in the following manner:

(i) A cheque bearing No. SBC 9808348 in favour of respondent No. 2 for the amount of Taka 165,362,461/00 (BDT Sixteen Crores Fifty Three Lakhs Sixty Two Thousand Four Hundred and Sixty One) only.

(ii) A cheque bearing No. SBC 9808346 in favour of respondent no. 3 for the amount of Taka 114,475,412/00 (BDT Eleven Crores Forty Four Lakhs Seventy Five Thousand Four Hundred and Twelve) only.

The said cheques shall be returned to the petitioner, subject to the Court’s approval, after completion of the process for the transfer of the said shares from the respondent nos. 2 & 3 to the petitioner and payment of consideration amount by the petitioner to the respondent no. 2 &3 as per the terms of the instant joint application.

(f) The petitioner hereby indemnifies the respondent nos. 2 & 3 from any liability arising out of any financial transaction of the company from the date of full effect of the change of signatory as described in paragraph 10(d) hereinabove till completion of the process for transfer of the said shares to the petitioner as per the terms of the instant Joint Application.

(g) Prior to the transfer of the said shares to the Petitioner, the Parties shall hold necessary Board meetings and pass necessary Board resolutions, wherein the Parties shall appoint the person or persons as desired by the Petitioner as Directors of the Company and thereafter the respondent nos. 2 & 3 shall resign from the Board of Directors of the Company.

(h) The respondent nos. 2 & 3 shall transfer the said shares to the petitioner by complying with all the formalities as enunciated in the Companies Act, 1994 as well as any other applicable laws in this regard.

(i) The parties shall fully co-operate with each other to give full effect to the common objective specified in the instant Joint Application strictly within the time limit as elaborated in the instant Joint Application.

(j) The parties shall individually or jointly file an affidavit of compliance before this Court within 7(seven) days of completion of the process of transfer of the said shares in accordance with the terms of the instant Joint Application.

6. Upon going through this application, it transpires that the petitioner and respondent nos. 2 & 3 have put their respective signatures in the application at the time of swearing affidavit and, thus, there is no doubt that this settlement has been done on their own volition and consent, without being influenced by any one. Moreover, the learned Advocate for the petitioner and the learned Advocate for the respondent nos. 2 & 3 have categorically submitted before this Court that if this application is allowed upon approving the terms and conditions set out in this application, then the grievances of the parties to this matter shall be mitigated once and for all.

In view of the fact that in the substantive application the petitioner’s prayer before this Court was either to direct the respondent nos. 2 & 3 to purchase the shares of the petitioner or, in the alternative, to direct the petitioner to buy all the shares of the respondent nos. 2 & 3 and since both the parties of the case have now amicably settled out of the Court that the petitioner shall buy all the shares of the respondent nos. 2 & 3, having been agreed to certain terms and conditions, this Court is of the view that there is no need to comply with the directions passed by this Court in the Judgment dated 05.02.2018. Instead, the parties are directed to comply with the following directions;

i) The Petitioner and Respondent Nos. 2 & 3 are directed to implement/execute/comply with all the terms of their joint agreement, which are incorporated hereinbefore in this Judgment under sub-paragraph nos. (a) to (j).

ii) Respondent Nos. 5 & 6 (the banking institutions) are hereby directed to change/modify the signatory requirements of Alliance Securities & Management Limited (Company) in relation to all the bank accounts of the Company, including Fixed Deposit Receipt (FDR) accounts, in accordance with the terms and conditions of the instant joint application within 24 (twenty four) hours of receipt of this Order.

iii) The Petitioner and Respondent Nos. 2 & 3 are directed to execute/implement the terms and conditions of their mutual agreement, which are paragraphed hereinbefore as Paragraph nos. (a) to (j) within 30 (thirty) days and, thereafter, submit an affidavit-in-compliance within 10 (ten) days of the expiry of the aforesaid thirty days.

With the above directions and Order, this application is allowed.

As a step towards implementation of the mutual agreement, the petitioner has deposited two cheques in this Court as the security.

………………………………………………………………………………………………………………………………………..”.

7. At the time of hearing of the above-mentioned joint application, it was submitted before this Court that for implementation of the Judgment and Order dated 05.02.2018, the petitioner and the respondent nos. 2 & 3 are the necessary and relevant parties and, accordingly, they have come up with this joint application, and since the respondent no. 4 is yet to make up his mind about selling his 25% shares, his part may be dealt with separately at any subsequent time. Accordingly, the above Order dated 13.12.2018 was passed by this Court on being persuaded that since the key parties of this case have mutually agreed to implement the said Judgment as per their convenience, the application may be allowed. In passing the aforesaid Order, this Court wished that “…….the grievances of the parties to this matter shall be mitigated once and for all” (quoted from the Order dated 13.12.2018). However, when the petitioner was experiencing difficulties to execute the above-mentioned Order through the RJSC, after a couple of weeks i.e. in the first week of 2019, he filed an application before this Court seeking direction upon the RJSC to accept the Returns to be filed by the company for the change in shareholding position (duly stamped Form 117s) and directorship (Form-XII) in accordance with the Order dated 13.12.2018 passed by this Bench in the instant matter and to update their records accordingly.

8. On the same day, the respondent no. 4 filed an application praying for rehearing the matter with an expectation of obtaining necessary direction upon the petitioner to purchase his shares, on the ground that the aforesaid application was moved without serving a copy upon the respondent no. 4 and, if the petitioner is not directed to purchase the shares of the respondent no. 4 at the price agreed to by the petitioner with the respondent nos. 2 & 3, the respondent no. 4 shall be the victim of injustice. This Court, then, was inclined to hear the respondent no. 4 and, accordingly, halted the transaction between the petitioner and respondent nos. 2 & 3 as to transfer of shares temporarily. After hearing Mr. Tanjib-ul-Alam, the learned Advocate for the respondent no. 4, it transpired that due to allowing the joint application in the absence of the respondent no. 4, the petitioner has now acquired a commanding position in dealing with the shares of the respondent no. 4. Whilst it is true that as per the original Judgment and Order dated 05.02.2018, the petitioner is not legally bound to purchase the shares of the respondent no. 4, the background of filing the instant case strongly suggests that it would be impossible for the respondent no. 4 to partner with the petitioner in any business and, thus, it is inevitable that either the original Judgment shall be complied with by the parties or the petitioner shall buy the shares of the respondent nos. 2, 3 and 4.

9. It is contended by the petitioner that prior to passing the Order on 13.12.2018 by this Court, this matter was appearing in this Court’s Cause List for the last one month, since the date of filing of the petitioner’s application for payment of interest & profit on top of the share-price, by serving copy upon the respondent no. 4, but the learned Advocate for the respondent no. 4 did not bother to remain present in the Court-room. It is prayed by the petitioner that implementation of this Court’s Order dated 13.12.2018 should not be suspended or cancelled on the plea of hearing the application of the respondent no. 4 inasmuch as the claim of the respondent no. 4 requires to be adjudicated upon in an independent application under Section 233 of the Companies Act upon conducting fresh audit of the company. On the contrary, the contention of the respondent no. 4 is that the petitioner has succeeded to obtain the Order dated 13.12.2018 by misleading this Court inasmuch as the petitioner did not bring the fact to the notice of this Court that if the petitioner is made the sole signatory of the company’s bank account, it will not only be a violation of the provisions of Memorandum & Articles of Association of the company, but shall also create an opportunity for the petitioner to illegally divert the funds of the company elsewhere, jeopardizing the rights and interest of the respondent no. 4.

10. The learned Advocate for the petitioner was repeatedly emphasizing on the point that as per the original Judgment and Order dated 05.02.2018, the respondent no. 4 could have requested the respondent nos. 2 & 3 to buy his shares and, further, at the time of filing this joint application, had the respondent nos. 2 & 3 bargained with the petitioner about purchasing of the shares of the respondent no. 4, there would have been an occasion for the petitioner to consider the issue. In reply thereto, the learned Advocate for the respondent no. 4 Mr. Tanjib-ul-Alam commented that because of the aforesaid buggers’ (respondent nos. 2 & 3) such conduct, the petitioner is now exploiting the enfeeblement of the respondent no. 4 and, therefore, it has been the duty of this Court to protect the interest of the respondent no. 4 in the company by arranging sale of his entire shares at the price agreed to by the respondent nos. 2 & 3 as well as by the petitioner. On the next day, the respondent no. 4 came up with an application for obtaining an Order of injunction from this Court restraining the petitioner from diverting the funds of the company and also to have an Order from this Court directing the petitioner to refund all the money diverted by him from the company’s account and to recall the Order dated 13.12.2018 passed by this Court.

11. Taking into consideration the contentions and submissions of the learned Advocates for all the parties, this Court asked all the parties of this case, namely, the petitioner, the respondent nos. 2 & 3 and the respondent no. 4 to appear in person in this Court and place their respective suggestions and opinions about how to implement the Judgment and Order passed by this Court on 05.02.2018 in the substantive matter (Company Matter No. 163 of 2017), for, the same having been upheld by the Hon’ble Appellate Division requires to be implemented by any means. It is worthwhile to record here that when the Supreme Court of Bangladesh, be it the High Court Division or the Appellate Division, passes a direction upon any individual or statutory body or State-functionary, it becomes a mandatory duty of this Court to compel the concerned person/statutory body/State-functionary to comply with the said direction either on arranging compromise between/among the parties or by passing appropriate Order/s, including passing contempt Order. So far as the question of implementation of any Judgment of this Court through compliance of any direction passed therewith is concerned, this Court always opts for taking recourse to the path of implementation of an Order/Direction by amicable settlement in order to save valuable time of this Court, for, if an Order for implementation is passed without arriving at consensus by all the parties, then, the parties will squander further invaluable working hours of this Court and, for that reason, it is a prudent practice to obtain consent directly from the parties to the case by asking them to appear in person in the Court room.

12. After giving due importance to the submissions made by the learned Advocates for all the parties and the opinions and suggestions made by the parties in the Court room, yesterday, in presence of all the parties to this case, namely, (i) Mr. Pankoj Roy (the petitioner), (ii) Mr. Madhab Chandra Das (respondent no. 2), (iii) Mr. Partha Pratim Das (respondent no. 3) and (iv) Mr. Tapan Krishna Podder (respondent no. 4), I, as the Presiding Judge of this Court, expressed my view in the open Court that if the following terms and conditions are agreed to by all the parties, then this Court will pronounce a written Judgment on consent. The terms and conditions which were expressed in the open Court are as follows;

(i) The respondent nos. 2 & 3 shall put their respective signatures on the transfer documents, namely, Form 117 and deed of purchase of the shares in this Court-room in presence of the learned Advocates for the RJSC on the one hand and, at the same time, the petitioner shall handover the Pay Orders of the agreed amount to the respondent nos. 2 & 3 on the another hand.

(ii) The respondent no.4 shall get the full price of his 25% shares in the company, which is Taka 18,39,91,339/- as per the audit report dated 20.11.2017. However, the costs of legal fees of Taka 4,90,400/-, as ordered in the original Judgment and Order dated 05.02.2018, shall be deducted therefrom and, then, the due amount (18,39,91,339/- Taka – 4,90,400/- Taka) shall be paid in three installments. First installment of Tk. 2,00,00,000/- (two crores) shall be paid in next 30 days, Taka 11,00,00,000/- (eleven crores) shall be paid in 12(twelve) months from date and remaining amount shall be paid within 3(three) years of this Judgment and Order .

13. The underlying reasons for the Order to make payment to the respondent no. 4 in installments is that the petitioner was not initially willing to purchase the shares of the respondent no. 4 on the ground that as per the Judgment and Order dated 05.02.2018, there was no legal obligations on the part of the petitioner to buy the shares of the respondent no. 4. On the query made by this Court to the petitioner as to whether he is at all willing to purchase the respondent no. 4’s shares, the petitioner at first made an offer of twelve crores in installments and, thereafter, on making further query as to the reason/s for offering a price lesser than the price agreed with the respondent nos. 2 & 3, the petitioner offered thirteen crores in installments of two years upon furnishing explanations and rationales thereof.

14. When all the parties were in agreement to the views expressed by the Presiding Judge in the open Court, the learned Advocate for the respondent no. 4 made a humble prayer that if one condition is agreed to by the petitioner, then the proposed Judgment may be treated to have been passed on consent of all the parties. The condition is that the petitioner shall submit 3 (three) Bank Guarantees before this Court to secure the full amount of sale proceeds of the shares held by the respondent no. 4; one is for an amount of Taka 2 (two) crores, second one is for an amount of Taka 11 (eleven) crores and the third one is for the remaining amount, having validity period of 1 (one) month, 2 (two) years and 3 (three) years respectively. The plea taken by the respondent no. 4 for such demand is that since he wishes to part away with this company forever by selling his entire 25% shares in favour of the petitioner, he neither wants to approach this Court in the event of non-payment by the petitioner nor would he like to meet the petitioner any further for this purpose. It is proposed that the respondent no. 4 shall execute the share-transfer documents in the Court room in favour of the petitioner on the date fixed by this Court and the petitioner shall deposit the consideration-money in the account of the petitioner from time to time in three installments as scheduled by this Court or, in the alternative, the petitioner shall deposit separate Pay Orders in this Court on or before the date of each installment and, in the event of the petitioner’s failure to deposit the money in the account of the respondent no. 4 or to submit the Pay Order in this Court within/on time, the Court shall hand over the Bank Guarantees to the respondent no. 4 for their encashment.

15. In dealing with this part of the claim and counter-claim in an expectation to resolve this matter amicably in presence of all these parties, yesterday the business-hours of the Court were over and, therefore, delivery of the written Judgment and Order in this matter was deferred to the next day. Hence, today is fixed for delivering the written Judgment. That is how, this Court remained in the process of implementation of this Court’s aforementioned Order dated 13.12.2018.

16. Today, when the matter is taken up for delivering the written Judgment, the learned Advocate for the respondent nos. 2 & 3 came up with an application for recalling this Court’s Order dated 13.12.2018, which was supposed to be implemented today, and prayed for allowing them to purchase the petitioner’s entire share of 25% of the company so that this Court’s original Judgment and Order dated 05.02.2018 is implemented. They also offered solatium by paying the interest for the delay that took place in the meantime on the amount of the petitioner’s share-price together with the profit of the shares for the period of delay.

17. At this juncture, this Court was a bit irritated at the mode and style of dealing with this case by the learned Advocate for the respondent nos. 2 & 3 and the Presiding Judge made few observations in the open Court. Eventually, this Court asked the respondent nos. 2 & 3 placing them in the Court-dock as to whether they are ready to pay off the entire amount with interest together with the profit of the petitioner’s shares to the petitioner by depositing Pay Order/s by today or tomorrow, against the backdrop that the petitioner is ready to pay off the amount of money agreed to by the respondent nos. 2 & 3 instantly through Pay Order. In reply thereto, the respondent nos. 2 & 3 informed this Court that if they are allowed to issue a post-dated cheque with 2 (two) months’ time, then they will be in a position to pay off the money as per the Judgment and Order passed by this Court on 05.02.2018 with the interest plus the profit of the petitioner’s shares which would be accrued till the date of payment through the Pay Order/s after 2 (two) months. Prayer of the respondent nos. 2 & 3 for allowing two months’ time for purchasing the petitioner’s shares appeared to this Court to be a cunning device with a motive to frustrate both the Judgments and Orders dated 05.02.2018 & 13.12.2018, given that after their failure to comply with this Court’s direction passed in the original Judgment, they had voluntarily made the joint application for selling their shares, instead of purchasing the petitioner’s shares. Moreover, the respondent nos. 2 & 3 did not make any prayer to this Court previously for extension of time in order to enable him to comply with the original Judgment and Order, nor did he file an application for arranging analogous hearing of the Contempt Petition by this Court with the petitioner’s application for granting interest and profit of the shares for the delay, at which event this Court would have been in a position to refer the application to the Hon’ble Chief Justice for his appropriate Order. In the alternative, the respondent nos. 2 & 3 directly could have approached the Hon’ble Chief Justice for obtaining an Order for analogous/simultaneous hearing of the Contempt Petition and this Company Matter by this Bench. Now, when this Court is going to implement the Judgment and Order dated 13.12.2018, upon directing the learned Advocate for the RJSC to remain present in the Court room to witness the transfer of shares by the respondent nos. 2 & 3 to the petitioner so as to relieve the parties from attending the office of the RJSC, the prayer of the petitioner to implement the original Judgment and Order dated 05.02.2018 does not appear to me to be bonafide. When a party to a litigation approaches any Court with a prayer for recalling the Court’s Order/Direction which was passed modifying the original Judgment and Order on the consent of the said party, s/he must come with clean hands upon fully satisfying the Court that s/he is at once ready to comply with the original Judgment and Order.

18. While this offer and counter-offer was going on in a very congenial environs in the open Court with an expectation of perpetual settlement of the dispute among the directors of the company, the learned Advocates for all the parties to this matter indulged themselves in making some inappropriate comments to each other in ominous tones leading to an untoward atmosphere. Eventually, the learned Advocate for the petitioner informed this Court that the petitioner shall not purchase the shares of the respondent no. 4 and, at the same time, the learned Advocate for the respondent nos. 2 & 3 also told this Court that they shall not sell their shares to the petitioner, rather they want to implement this Court’s original Judgment and Order dated 05.02.2018 and, therefore, they prayed for passing appropriate Order on their application for recalling the Order passed by this Court on 13.12.2018.

19. Given the fact that this Court had expressed its views in the open Court to arrange for transferring the shares of respondent nos. 2, 3 & 4 in favour of the petitioner, therefore, as the Presiding Judge, I was inclined to deliver the written Judgment in line with the views I had expressed in the open Court yesterday. However, since the petitioner has declined to purchase the shares of the respondent no. 4, I resisted myself from delivering the written Judgment in the aforesaid line. On the other hand, if this Court allows the application of the respondent nos. 2 & 3 for recalling the Order dated 13.12.2018 with the condition to pay off the petitioner’s money within a day, the respondent nos. 2 & 3 are not in a position to deposit the Pay Orders by tomorrow in this Court.

20. It is my considered view that if the company is to be saved from winding up, there is no other option for the company’s directors other than to accept any one of this Court’s decision out of the above-mentioned two solutions. That is to say, either the petitioner shall purchase all the shares of the respondent nos. 2 & 3 through payment of the Pay Order to be handed over in the Court room upon execution of the share-transfer instruments instantly and the shares of respondent no. 4 shall be purchased by the petitioner in installments by depositing Bank Guarantee/s in the Court, or, in the alternative, the respondent nos. 2 & 3 shall purchase the petitioner’s entire shares with the promised solatium i.e. upon payment of the interest for delay together with the profit of the shares on top of the share-price, within the shortest possible time.

21. In the light of the fact that it was an expectation of this Court that the matter should be disposed of once and for all on compromise by all the parties to this matter, in other words, all the parties to this case were expected by the Court to agree to receive an Order on consent and, now, since they have failed to arrive at an amicable settlement, I find it difficult to deal with this matter any further. Accordingly, I am referring the matter to the Hon’ble Chief Justice to make necessary arrangement for finally disposing of the matter by any other competent Bench. However, if all the parties to this case agree to any of the above two solutions, I shall be happy to proceed with the implementation process.

22. Before parting with this Order, I regret to record here that this case was being dealt with in an unbefitting manner by the learned Advocates for the petitioner, the learned Advocate for the respondent nos. 2 & 3 and the learned Advocate for the respondent no. 4. While it would have been a fair practice for the learned Advocate for the petitioners and the respondent no. 2 & 3 to obtain the Order on 13.12.2018 on their joint application in the presence of the learned Advocate for the respondent no. 4, it was the professional duty of the learned Advocate for the respondent no. 4 to remain vigilant on the steps taken by the petitioner and the respondent nos. 2 & 3 in the light of the fact that from the date of filing of the petitioner’s application for obtaining an Order of interest plus profit on the share-price, copy of which was served upon the learned Advocate for the respondent no. 4, it was within the knowledge of the learned Advocate for the respondent no. 4 that this Court is in seisin of this case. Secondly, when this Court allowed the learned Advocate for the respondent no. 4 to place his application, it was a sheer unexpected event for this Court to hear the indecent utterings, such as ‘bugger’ ‡e-Av`e (unmannerly) and some other remarks in taunting tone, made by the learned Advocates for the petitioner and the respondent no. 4. And, lastly, it was an incongruous step of the learned Advocate for the respondent nos. 2 & 3 to take a U-turn by stepping back to the previous decision at a belated stage when this Court had already fixed the time and date for execution of the Judgment and Order dated 13.12.2018 through handing over the Pay Order and signing the share-transfer instruments hand to hand. He ought to have filed this application before expressing the views by the presiding Judge in the open Court. In the cases of AKM Asaduzzaman Vs Public Service Commission 4 ALR 204(2) 278, Bandar Nagari Bahumukhi Samabay Samity Vs Bangladesh 5 ALR 2015(1) 194 and Sharifa Begum Vs Bangladesh 9 ALR 2017(1) 158, this Court has either slapped fine or has warned the learned Advocate when it was found that the conduct of the learned Advocates was not befitting with the norms of legal profession. In the aforesaid cases, it was observed that a truly professional Advocate would consider the legal advocacy to be a noble profession and s/he would not take up a meritless brief, rather s/he would feel duty bound to discourage the people not to get involved in a frivolous or fruitless litigation.

23. It is to be remembered that the members of the Bar being the integral part of the Judiciary shoulder a solemn duty of upholding the majesty of the Court and, thus, they should not interact with their clients in a way which would damage and demean the prestige of the Court. Whilst it is the professional duty of the learned Advocates to protect the interest of their clients, it does not necessarily mean that they would be driven by the whimsical request or unlawful instructions of the clients; rather they should act on their good conscience. A gutsy Advocate shall never be motivated by mere material instructions, nor shall s/he ever get involved in squabble in the open Court for satisfying the client. The learned Advocates must not take any step to waste the invaluable business-hours of the Court.

24. The members of the Bar should bear in mind that the Court room is considered and recognized all over the world to be the most formal place where the Judges and lawyers are obligated not only to comply with the rules regarding dresses/outfittings, but also they are required to maintain their professional ethics, etiquette and norms by mindfully using the words they utter before the Court in a genteel accent as well as by showing their demeanour to be humble without having the minimum characteristics of being egotistic or arrogant. They should not be oblivious of their status that they are addressed by the Court and the commoners as the ‘learned’ which implies that they are aristocrat and intellectual by virtue of their profession & knowledge and, inherently, an intellectual or aristocrat is expected to possess all the best qualities and features of a human being, that is to say, a member of the legal profession should not be impolite, discourteous, ill-mannered and inconsiderate either in speaking or in demonstrating any other type of performance. Therefore, it is the normal expectation of this Court and the citizenry that their conduct shall introduce themselves to be not only as knowledgeable persons, but also would suggest that they are accustomed to the sophisticated manner and attitude in all spheres of their lives.

25. Whilst this Court could have opted to send the file to the Hon’ble Chief Justice by merely recording that this Court is feeling embarrassed to hear this case, however, it preferred (i) to state the facts of this case, (ii) to quote the original Order passed in the application under Section 233 of the Companies Act, (iii) to embody the subsequent Orders and (iv) to describe the events that took place since the date of passing the original Judgment upto now, for the purpose of, firstly, to help this Court save its valuable time so that henceforth the Court can easily acquaint with the facts of the case without looking at the petitions, supplementary affidavits, annexed papers and this Order sheet; secondly, to be familiar with the background fact of sending the file to the Hon’ble Chief Justice and, lastly, to guide all the learned Advocates of this case to the right path with an expectation that they shall not squander any further business-hours of this Court.

26. Office is directed to place the file before the Hon’ble Chief Justice to allocate this case to any other Bench.

Ed.

Cmpany Matter No. 163 of 2017

Paresh Chandra Bhowmick Vs. Hiralal Nath & others

Case No: Civil Appeal No 58 of 1983.

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mahmudul Islam,Bimalendu Bikash Roy Chowdhury,,

Citation: 36 DLR (AD) (1984) 156

Case Year: 1984

Appellant: Paresh Chandra Bhowmick

Respondent: Hiralal Nath & others

Subject: Property Law,

Delivery Date: 1984-01-01

Paresh Chandra Bhowmick Vs. Hiralal Nath & others
36 DLR (AD) (1984) 156

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Paresh Chandra Bhowmick……….....................................Appellant
Vs.
Hiralal Nath & others........................................................Respondent

Judgment
January 1, 1984.

The Evidence Act, 1872 (I of 1872)
Sections 67 and 68
The Succession Act, 1925 (39 of 1925)
Section 63

The very fact of testamentary disposition is associated with preferring some heirs to others, causing deprivation to one for the benefit of another and if the testator, who got absolute right to dispose of his property by will under the Hindu Law, of his own volition and in perfect sense causes such deprivation, the Court is helpless to mitigate the deprivation…………….(13)

In view of satisfactory proof of due execution of the will by the testator who executed it in full sense and by free will and volition not being influenced by any quarter, this deprivation cannot be a ground to refuse probate to the executor in terms of the will……..(14)

Cases Referred to-
Smt. Jaswant Kaur V. Smt. Amrit Kaur and others, AIR 1977 (SC) 74; H. Ventakachala Iyengar Vs. BN Timmajama, AIR 1959 (SC) 443.

Lawyers Involved:
Mahmudul Islam, Advocate, instructed by Kazi Ebadul Haque, Advocate-on-Record—For the Appellant.
B. B. Roy Chowdhury, Senior Advocate, (Md. Abdur Rashid, Advocate with him) instructed by Md. Shamsul Huque Siddique, Advocate-on-Record—For the Respondents.

Civil Appeal No 58 of 1983.
(From the judgment and order date December 1981 passed by the High Court Division in First Appeal No. 52 of 1978.)

Judgment

Shahabuddin Ahmed J.- In this appeal by special leave the question is whether the High Court Division was well founded in law and fact in reversing the trial Court's order granting probate of a Will on the ground that execution of the will was not proved to the satisfaction of judicial conscience of the Court even if statutory requirements as to proof of execution of the will were outwardly found fulfilled.

2. The appellant, Paresh Chandra Bhowmick, is executor of the will in question namely, the will Ext. 1, purportedly executed by his grand-father-in-law, Haricharan Nath on November 3, 1963 corresponding to 16th, Kartick 1370 B.S. By this will the entire property of the testator was bequeathed to the appellant who is husband of Indu Prova, grand-daughter of the testator through his only son Rajendra who is admittedly an Indian national. Case of the appellant propounder is that Haricharan Nath, aged about 75, was attacked with partial paralysis in the right side of his body about three months before his death and that his only son Rajendra having migrated to India about 15 years ago, Rajendra's daughter and her husband Paresh remained in Pakistan and as such they looked after him. Haricharan had a second wife, Krishana Moni Devi, defendant No. 2, but he did not consider her to be the proper person to look after his property on his death. On 3 November 1963 Haricharan Nath executed the will in presence of members of the locality, both Hindus and Muslims, by putting his left thumb impressions on the document; though he was literate he could not sign his name because of partial paralysis; and that this was the last will of Haricharan. Three months thereafter, that is, on 5 February 1964, Haricharan died in his house in village Kerua, district Noakhali. The appellant filed an application being Miscellaneous Case No. 136 of 1966 praying for a Probate of the Will but it was dismissed for default. Thereafter he filed Title Suit No. 5 of 1976 (Probate) before the District Judge, Noakhali, seeking probate of the will.

3. The suit was contested by Krishna Moni Devi, respondent No. 2 who seriously disputed the will contending that her husband did not execute any will but the disputed will was ante-dated having been fabricated and forged after his death by Paresh in collusion with the scribe. Her further contention was that Hiralal, one of the sons of Rajendra, did not migrate to India but was a Pakistani national and resided with her and her husband in the same house and as such Hiralal was the proper person besides her to look after the property of her husband. She also contended that the property was all along in her possession.

4. The learned District Judge on consideration of evidence led by both the parties held that the execution of the will was satisfactorily proved as the last will of the testator and on that finding passed a decree on 27 February, 1978 granting probate of the will. But on appeal by defendant Krishna Moni Devi, a Division Bench of the High Court Division reversed the finding of the District Judge, and holding that the execution of the will was not duly proved on fulfilling the requirements of section 63 of the Succession Act, cancelled the probate and dismissed the suit. The High Court Division further observed that in view of some "unnatural, unfair and inhuman aspect of the matter" in which the widow and a grand son of the testator stood totally deprived of the property and also of "suspicious circumstances surrounding the making of the will" which were not explained by the propounder, the District Judge failed to make correct assessment of the evidence adduced in the case.

5. Leave was granted to consider whether there were any, patent unfairness and inhuman and unnatural aspects in the matter of this testamentary disposition of the property or whether there were any suspicious circumstances surrounding the execution of the will which the profounder of the will failed to remove or explain.

6. Appellant, propounder, set up the will seeking its probate, and as such it is he on whom lies the entire responsibility for proving that the will was duly executed by the testator as his last will. Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark, that is thumb impression, but also requires that the testator executed it in sound disposing mind, fully knowing the nature and effect of his action. In other words, it must be proved that the testator had 'testamentary capacity' at the time he put his signature or thumb impression on the will. When a written will is sought to be proved, it must be proved by fulfilling the statutory provisions namely, provisions of sections 67 and 68 of the Evidence Act governing proof of a document. In addition, the special requirements of section 63 of the Succession Act shall also have to be fulfilled. In the instant case the question of the testator's testamentary capacity that is, whether he was in sound mind and had the capacity to comprehend the nature of the thing he was going to do, was not raised by the caveator, whose only contention was that no will was executed by her husband but that the impugned will was fabricated and forged after his death. As such, it is to be seen, first of all, whether the will Ext. 1, was executed by the purported testator, Haricharan Nath. Four witnesses have deposed that the will was executed by Haricharan Nath in their presence. They are P.W. 1 Paresh, the profounder, P.W. 2 Chandra Shekhar Majumder, the scribe, P.W. 3 Hare Krishna Devnath, a relation of the testator and P.W. 4 Abdul Huq, member of the Local Union Council. Their uniform evidence is that at the instance of Haricharan they and some other members of the locality were brought to his courtyard on 16th Kartick 1370 B.S., that Haricharan expressed his intention to make a will, that at his dictation the scribe wrote the will which was then read over to him after which he put his left thumb impressions on the will. P.W. 2, the scribe himself took those thumb impressions on the will and put his signature below each of these thumb impressions. P.W. 1 is of course, a person interested in the will; but P. Ws. 2, 3 and 4 are found to be quite disinterested persons. There is no suggestion that they had any motive to depose falsely in support of the will. For proof of execution of a will, section 63 of the Succession Act requires at least two attesting witnesses each of whom has seen the testator sign his name or affix his mark to the will. This requirement has been fulfilled by the evidence of these four witnesses.

7. In addition to this direct evidence as to execution of the will, there is expert evidence recorded under section 45 of the Evidence Act. This is the evidence of P.W. 5, a hand-writing expert. He compared the thumb impressions purportedly of Haricharn on the will with a number of thumb impressions purportedly of Haricharan appearing in two previous sale-deeds, being registered, (Exts. 6 and 7). These sale-deeds recorded transfer of some lands by Haricharan to third parties a few years before his death. The thumb impressions in those registered documents were taken by the learned District Judge as "standard thumb impressions of Haricharan", and P.W. 5, by making comparison between these two sets of thumb impressions, expressed the opinion that all these thumb impressions were product of the same person. In support of this view he referred to as many as 15 peculiarities, formations and patterns of the ridges which were common in both sets of the thumb impressions. Since examination of finger prints is almost an accurate science the learned District Judge took the expert's opinion as additional evidence of the execution of the will by Haricharan.

8. The learned Judges of the High Court Division however rejected the direct evidence of execution of the will given by P. Ws. 1, 2, 3 and 4 and the expert opinion given by P.W. 5. They have placed reliance upon the evidence of D. W. 1 Krishna Moni Devi and three other witnesses—D.Ws. 2-4 who deposed that no will was executed by Haricharan. But P. Ws. 1-4 asserted that Krishna Moni Devi (D. W. 1) was present in the courtyard when her husband had executed the will, but since she was illiterate she was not made an attesting witness of the will. As to D. W. 2, his name is also Hare Krishna; he said that he was not an attesting witness of the will. But on due consideration of the evidence the trial Court found that D. W. 2 Hare Krishna is a different person from P.W. 3 Hare Krishna, son of Nabadwip, who is an attesting witness of the will. As to DW. 3 Ramesh Chandra, his name, is there in the will as one of the attesting witnesses, but he has disowned the signature saying that he was not aware of any such will nor did he put any signature thereon. Suggestion put to him on behalf of the profounder is that he was gained over by Krishnamoni. D. W. 4 is Hiralal, one of the six sons of Rajendra. He has said that though his father had migrated to India long ago, he was living with Haricharan and Krishna Moni Devi all along in Pakistan and that no will was executed by his grandfather. The evidence of P.W. 1 is that Hiralal had migrated to India along with his father but was brought to Pakistan by Krishna Moni Devi after the will was executed and that he came from India with an Indian passport and started creating trouble putting obstruction to the profounder getting any benefit under the will. It was further suggested that as his visa had expired he was taken into custody for 21 days. His father, Rajendra, had six sons and six daughters and according to P.W. 1, all except Indu Prova were Indian nationals all through. Considering these facts and circumstances the learned District Judge disbelieved the evidence of D. W. 4 Hiralal, and weighing these two sets of evidence, one of P. Ws. and the other of D. Ws., found the evidence given by the P. Ws. to be true and reliable. Since the trial Court is in a better position to appreciate the oral evidence of the witnesses whose demeanour is observed, the appellate Court should ordinarily be slow to disagree with the trial Court's assessment of evidence.

9. As to the opinion of the hand writing expert P. W.5, the learned Judges of the High Court Division did not accept the thumb impressions in the registered sale-deeds, (Exts. 6 and 7) as "standard thumb-impressions" of Haricharan by simple observation that the execution of those documents was not proved under section 68 of the Evidence Act. This observation we are unable to accept as correct since it is erroneous from the view point of both law and fact. Firstly, execution of those registered documents in favour of third parties was never challenged, and secondly, in respect of the sale-deed Ext. 6 there is an attesting witness P.W. 6 who has deposed that the sale-deed was executed by Haricharan in his presence by putting his left thumb impression. As to the sale-deed Ext. 7, P.W. 7, has deposed that he had identified the executant Haricharn before the Sub-Registrar whereupon the sale-deed was registered. This witness did not attest the document, Ext. 7, and as such he was not an attesting witness, but when he identified the executants Haricharan before the Sub-Registrar then, at least it was proved that Haricharan appeared before the Sub-Registrar to get registered a document which was purportedly executed by him. In this sense it is not wholly’ corrects to say that P.W. 7 was not an attesting witness of the document. Even if his evidence is rejected then the thumb impression on the sale deed Ext. 7 may go out of consideration. But so far as proof of the sale deed Ext. 6 is concerned, its execution has been proved by the attesting witness P. W.6. As such, the thumb impression in Ext. 6. is the standard thumb impression of Haricharan, and this thumb impression having agreed with the impugned thumb impression on the will—in respect of ridge peculiarities, patterns and formations, there, is no room for doubt about the expert opinion of P. W. 5. There is a suggestion that P. W. 5 deposed falsely acting in collusion with the profounder. This is a baseless suggestion; if there was any genuine doubt about his opinion, the caveator could have prayed for opinion of some other handwriting expert.

10. On the evidence of P. Ws. 1-4 re-informed by the evidence of the hand-writing expert P. W.5, there is no reason to hold that the will was not executed by Haricharan. But mere putting signature or finger print on a document does not mean that the document has been executed by the person putting the signature or placing the impression; the signature or thumb impression of the testator shall be so placed, as specifically prescribed in section 63 of the Evidence Act, that it shall appear that it was intended thereby to give effect to the writing of the will. This raises the question of testamentary capacity of the testator that is, the testator had full sense, he was in sound mind and he understood the nature and effect of his action in putting his signature or placing his mark on the document. Of course when it is found that the purported testator put his signature or mark on the will, then it shall be presumed that he knew the nature and effect of his action. But this presumption is liable to be rebutted by proof of suspicious circumstances surrounding the will. In this case, it is not contention of the caveator that the testator had no testamentary capacity at the relevant time; rather she contended than her husband was not suffering from any paralysis or any serious illness. Her contention was that no. will was executed by her husband. Even if the caveator did not raise the question of testamentary capacity, yet the profounder is not exonerated from the incumbent duty to prove that the testator had second and disposing mind and that he fully understood the nature and effect of his action in executing the will. This onus is found to have been discharged by the profounder in this case. Next question that arises in connection with due execution is whether the execution has been obtained by undue influence, fraud, coercion or misrepresentation of facts. No such suggestion was made by the caveator since her case was all along that no will was at all executed by her husband. The Privy Council, in the case of Harmes Vs. Hinkson, AIR 1946 PC 156, held that ''the burden of proving that the will is the outcome of undue influence exercised on the testator is on those who attack the will."

11. But even if there was no suggestion from the caveator that the will was obtained by undue influence, misrepresentation or coercion, it is the solemn duty of the court to satisfy its conscience that the will of a person who is no longer alive to support or deny it, is free from any infirmity. The trend of questions raided on behalf of the respondent and which were also considered by the High Court Division shows that the execution of this will was charged with suspicion and the learned Judges found it to be unfair, unusual and inhuman in that the grand-daughter's husband was given preference to the wife and the grandson who, under the will, stood totally deprived of the property. It was also observed by the learned Judges that the will was written without the help of any draft, that the thumb impression of the testator was put at the top of the document instead of the bottom and that there is no medical evidence in support of the paralysis of the testator affecting his right hand due to which he allegedly failed to sign his name.

12. Mr. B.B. Roy Chowdhury, learned Advocate for the respondent has made strenuous effort to defend the High Court Division's judgment particularly referring to these suspicious circumstances surrounding execution of the will and has sought support from, a number of decisions from Indian jurisdiction particularly in the cases of Smt. Jaswant Kaur V. Smt. Amrit Kaur and others, AIR 1977 (SC) 74 & H. Ventakachala Iyengar Vs. BN Timmajama, AIR 1959 (SC) 443. In these cases the suspicious circumstances in which the wills were executed were examined by the court which observed that in such position the burden of proof of due execution becomes heavier for the profounder, or the person who claims under the will and that the Court in such cases must take every caution in accepting the evidence as to due execution and that if on careful investigation the suspicion is not removed, then the evidence as to execution should be rejected. In the first mentioned case (AIR 1977) the Indian Supreme Court observed:
"In cases where execution of a will is shrouded in suspicion, its proof ceases to be a simple is between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the profounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."

13. In both these cases probates were granted by the District Judge but on appeal the High Court cancelled the probates finding that 'suspicious circumstances' were not explained. Facts of those cases are quite different from that of the instant case. In this case no suspicious circumstances remained unexplained. All the questions raised on behalf of the respondent have been duly answered by the learned District Judge. The only question that deserves consideration is why Hiralal and Krishna Moni were deprived of the testator's property. As to Hiralal, he is found to have migrated to India. He has of course claimed to be a Pakistani national. But when his father along with the entire family had migrated to India it is quite unusual on the part of a young boy, as Hiralal was at the relevant time, to remain in Pakistan. So far as the testator's wife is concerned, she, of course, has been deprived of the property and no provision has been made for her, and the testator's action in this respect is unfair and also unusual and this fact raises 'suspicion'. But the suspicions is found to have been removed by the profounder who explained that he being the only male relation of the testator remaining in Pakistan, Krishna Moni was not considered a fit person to look after the property on his death; and as to means of her livelihood, verbal explanation has been given that on her husband's death the widow was to join the family in India; besides she got her parents in this country to look after her. The High Court Division however did not accept this explanation as nowhere it was mentioned in the evidence of the witnesses. But the very fact of testamentary disposition is associated with preferring some heirs to others, causing deprivation to one for the benefit of another and if the testator, who got absolute right to dispose of his property by will under Hindu Law, of his own volition and in perfect sense causes such deprivation, the court is helpless to mitigate the deprivation.

14. The rules governing proof of due execution of a will which is charged with suspicion were examined by the Privy Council in the case of ‘Harmes v. Hinkson' as referred to above. It was observed there:-
''Those rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to dose his mind to the truth.”
We have given our anxious consideration to the fact that by the impugned will the testator deprived his wife of the property. But in view of satisfactory proof of due execution of the will by the testator who executed it in full sense and by free will and volition influenced by any quarter, this deprivation cannot be a ground to refuse probate to the executor in terms of the will. In the circumstances, the District Judge's order granting probate should not have been reversed by the High Court Division, as 'judicial conscience is found to have been satisfied in this case.

15. In the result, the appeal is allowed. The impugned judgment of the High Court Division is set aside and that of the District Judge is restored. No order as to costs.
Ed.

Parveen Banu @ Purnima & others Vs. Bangladesh House Building Finance Corporation

Case No: Civil Appeal No. 68 and 72 of 1989

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Dr. Kamal Hossain,Mr. T.H. Khan,Mr. Mahfuzur Rahman,Mr. Asrarul Hossain,Muksum-Ul-Hakim,,

Citation: 42 DLR (AD) (1990) 234

Case Year: 1990

Appellant: Parveen Banu @ Purnima & others

Respondent: Bangladesh House Building Finance Corporation

Subject: Property Law,

Delivery Date: 1990-03-15

Parveen Banu @ Purnima & others Vs. Bangladesh House Building Finance Corporation
42 DLR (AD) (1990) 234

Supreme Court
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Latifur Rahman J

Parveen Banu @ Purnima & ors.........………………….....Appellants
Vs.
Bangladesh House Building Finance Corporation, represented by its Chairman & ors.....…Respondents
Salma Islam.……………………………………………………………….....Appellant
Vs.
Parveen Banu @ Purnima & ors....……………………….....Respondents

Judgment
March 15, 1990.

The Code of Civil Procedure, 1908 (V of 1908)
Section 96 (3)
The Evidence Act, 1872 (I of 1872),
Section 115
The Limitation Act, 1908 (IX of 1908), First Schedule
Articles 11(1) & 95

The plaintiffs elected to relinquish all the reliefs except one by amendment of the plaint so they are bound by the principle of estoppels and debarred to raise the claim already voluntarily abandoned. The decree being obtained on understanding and consent of the parties, appeal do not lie from such decree by either party. The points lost earlier on consent cannot be raised on appeal. The claim of death of Naser before the decree was passed, claiming the decree to be a nullity is barred as because such claim was abandoned on consent while bringing amendment of the plaint………..(33)

Cases Referred to:
AIR 1936 (Madras) (FB) 205 and AIR 1945 (Patna) (FB) 1; AIR 1926 (PC) 9, PLD 1962 (WP) Lahore 137; AIR 1931 (PC) 107; Halsbury's Laws of England, Third Edition, Volume 15 p.171; In AIR 1956(SC) 593(601); LJ in Verschures Creameries Ltd. V. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608; Ker Vs. Wauchope (1819) 1 Bligh 1 (21): Douglas Menzies Vs. Umphelby 1908 AC 224 (232); PLD 1971 (SC) 376(390-391); Ganges Manufacturing Co. Vs. Sourajmull, ILR 5 (Cal) 669.

Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate (Shah Abu Nayeem Mominur Rahman, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Appellants (In C.A. No. 68 of 1989).
Mahfuzur Rahman, Advocate (Shaheed Alam, Advocate with him), instructed by A. Baset Majumder, Advocate-on-Record — For the Respondent No. 1 (In C.A. No. 68 of 1989).
Maksum-ul-Hakim, Senior Advocate (T.H. Khan, Senior Advocate with him), instructed by Miah A. Gafur, Advocate-on-Record—For the Respondent No. 2(In C.A. No. 68 of 1989).
Not represented — Respondent Nos. 3 & 4 (In C.A. No. 68 of 1989).
T.H. Khan, Senior Advocate, instructed by Miah Abdul Gafur, Advocate-on-Record—For the Appellants (In C.A. No. 72 of 1989).
Dr. Kamal Hossain, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondent Nos. 1-4 (In C.A. No. 72 of 1989).
Asrarul Hossain, Senior Advocate, (Shaheed Alam, Advocate, with him) instructed by Mr. Sajjadul Huq, Advocate-on-Record—For the Respondent No. 5 (In C.A. No. 72 of 1989).
Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.7 (In C.A. No. 72 of 1989).
Not represented — Respondent No. 6 (In C.A. No. 72 of 1989).

Civil Appeal No. 68 of 1989
with
Civil Appeal No. 72 of 1989.
(From the Judgment and decree dated 16.2.89 passed by the High Court Division, Dhaka in First Appeal No. 46 of 1988).

Judgment

ATM Afzal J. - These two appeals by leave, Civil Appeal No. 68 of 1989 by the plaintiffs and Civil Appeal No. 72 of 1989 by defendant No. 4, arise out of the same judgment and decree dated 16 February, 1989 passed by a Division Bench of the High Court Division, Dhaka in First Appeal No. 46 of 1988 allowing the same "as at presently constituted" and decreeing "the plaintiffs' suit, as amended" upon setting aside the judgment and decree of the Subordinate Judge, 3rd Court, Dhaka passed in Title Suit No. 269 of 1987.

2. The facts leading to these appeals are that one MA Naser, a Film Producer and Distributor in the then East Pakistan, took a loan of Tk. 40,000/- from the House Building Finance Corporation, defendant No. 1, in 1964 and constructed a residential house on his plot No. 8, Block No. N/W(J) Gulshan Model Town, Dhaka (Property in suit). Defendant No. 1 filed Miscellaneous Case No. 88 of 1976 in the Court of District Judge, Dhaka under Article 27 of President's Order No. 7 of 1973 for the realisation of loan money against MA Naser, the loanee and 2 others i.e. Dhaka Improvement Trust (Defendant No. 3) and the Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Public Works (defendant No. 2) and the said case was decreed ex parte on 21.9.1977. Thereafter, in pursuance of the said decree, Money Execution Case No.7 of 1978 was filed by the decree-holder (House Building Finance Corporation) and in the said Execution case the mortgaged property (suit property) was sold in auction on 30.4.1985 by the District Judge, Dhaka at a price of Tk. 34,62,500/- and defendant No. 4 auction purchased the same. The auction sale has been confirmed on 27.12.1986 and the sale Certificate has been issued by the District Judge, Dhaka on 18.1.1987 in favour of the auction purchaser who had to pay in total Tk. 41,13,750/00.

3. The plaintiffs filed Title Suit No. 555 of 1985 in the First Court of Subordinate Judge, Dhaka which was, on transfer, re-numbered as Title Suit No. 269 of 1987 in the 3rd Court of Subordinate Judge, Dhaka. There were three main prayers of the plaintiffs in the said suit which are as follows:
(a) that a decree declaring that the plaintiffs are the sole legal heirs and successors of late MA Naser and as such they are the sixteen annas owners of the suit property.
(b) that a decree declaring that the decree/ order passed in Miscellaneous Case No. 88 of 1976 on 21.9.1977 is illegal, null and void being obtained against a dead man by practising fraud upon the court and by suppression of the process of the court may be passed.
(c) that a decree declaring that the auction sale was irregularly and fraudulently held and as such it was null and void may be passed.

4. Plaintiffs' case, briefly, is that plaintiff No.1 is the wife, plaintiff No.2 is the son and plaintiff Nos.3-4 are the daughters of MA Naser who is untraceable since 16.11.71 and hence presumed to be dead. Naser was a Non-Bengali domiciled in erstwhile East Pakistan after the creation of Pakistan in 1947 and had been living with the plaintiff No.1 after his marriage with her on 16.1.1963 at 43, Rankin Street, PS Sutrapur, Dhaka. After the 25th March, 1971, Naser shifted from 43, Rankin Street to House No. 4/13 Humayun Road, Mohammadpur, Dhaka. On 16.11.1971 Naser started from the residence towards his place of business at Gulshan as usual, but did not come back to his residence even late at night or at any time afterwards. Plaintiff No.1 searched for Naser at every probable place including the residences of his known friends and relatives but his whereabouts could not be known. It was concluded for certain that MA Naser must have been killed in the liberation struggle of Bangladesh.

5. After the liberation of Bangladesh on 16.12.71, plaintiff No. 1 with her children shifted from Mohammadpur area and started living at 643, Bara Maghbazar, Dhaka. Thereafter the plaintiffs shifted to plot No. 8, Block No. N/W(J), Gulshan Model Town, the suit house, where they have been residing till to-day. Naser never returned to his family.

6. MA Naser took permanent lease of the suit property from the erstwhile Dhaka Improvement Trust by a deed of lease. He partly constructed a building thereon with the loan taken from the House Building Finance Corporation, defendant No.1 but could not complete the building owing to the disturbed condition in the country in 1970. The building remained in an unfinished condition.

7. After the disappearance of MA Naser the plaintiffs were put to financial hardship and as such a number of instalments due to the House Building Finance Corporation fell due. Defendant No.1 pressed hard for repayment of the loan money whereupon plaintiff No.1 requested the said defendant to allow, sufficient time to the plaintiffs for repayment of the outstanding loan money and also requested the said defendant to consider the case favorably in view of the tragic disappearance of Naser.

8. Plaintiff No. 1 also approached the Government of Bangladesh to intervene in the matter and as a result the Ministry of Public Works and Urban Development by Memo No. 29 dated 12.6.72 requested the Secretary of House Building Finance Corporation to consider the case of Plaintiff No.1 favorably. Defendant No. 1 received Tk. 9,912.48 paisa on 22.5.74, Tk. 1,467.06 paisa on 28.2.75 and Tk. 1,467.06 paisa on 31.3.76 from Plaintiff No. 1 by way of payment of loan instalment, plaintiff No.1 also spent a sum of Tk. 24,046.77 towards the development of the land and construction of the building in 1972 and 1973.

9. In the meantime defendant No.1 without waiting for the repayment of loan money by the plaintiffs in reasonable instalments filed Miscellaneous Case No.88 of 1976 before the District Judge, Dhaka without impleading either the plaintiffs who were known to defendant No.1 as the wife and children of MA Naser or the surety of Naser and obtained an ex parte order/decree by suppressing the process of the court at the instance of some motivated party who was after the property of Naser. Defendant No.1 then put the said decree to execution in Money Execution Case No.7 of 1978 in the Court of District Judge, Dhaka behind the back of the plaintiffs.

10. On 24.2.1980 the plaintiffs came to learn about the said fraudulent transactions of defendant No.1 when a sale proclamation of the suit property was published in the daily Bangladesh Observer. After inspecting the case records through Advocates the plaintiffs finally came to know about the Miscellaneous Case No.88 of 1976 and the Money Execution Case No.7 of 1978. The decree had been passed against a dead man and without impleading the plaintiffs. The suit property was sold in collusion with the auction purchaser-defendant No.4 and the staff of the Court. The present value of the suit property will be not less than Tk. 60,000/- but because of the collusion between the auction-purchaser and the staff of the Court it was sold at a much lower price.

11. Defendant Nos.1 and 4 i.e. respondent Nos.1 and 2 in CA 68/89 contested the suit by filing separate written statements and denying completely the averments of the plaintiffs. The case of both the contesting defendants, inter alia, is that the suit is barred by limitation both under Articles 11(1) and 95 of the First Schedule to the Limitation Act. It was denied that plaintiff No.1 was the legally married wife of MA Naser or that the plaintiff Nos. 2-4 were the children of said Naser. The Kabinnama relied upon by plaintiff No.1 is a false, fictitious and forged document. The signatures of MA Naser in the so-called Kabinnama differs from his admitted signatures in the mortgage document and other papers lying with defendant No.1. The story of Nasser’s disappearance on 16.11.1971 was denied. It was emphatically stated that the plaintiffs never applied to defendant No.1 to be substituted as the heirs and successors of Naser. The plaintiffs may have paid some loan instalments but it was contended that acceptance of deposit of loan instalments did not constitute recognition of heirship and successorship. As the plaintiffs never applied to be substituted as heirs and successors of Naser defendant No.1 did not make them parties in Miscellaneous Case No. 88 of 1976.

12. It has been asserted by defendant No.1 that MA Naser is not dead but that he is alive, and defendant No.1 had come to know from a reliable source that MA Naser was living in Karachi with his wife, son and daughters and that he was doing his business there.

13. It has been alleged that the plaintiffs have created some documents in order to grab the suit property. Defendant No.4 claimed that she is the lawful owner of the suit property by way of auction purchase from the Court. On 31.12.87 defendant No.4 filed an application for adoption of the written statement of defendant No.1 which was allowed by the Court by Order No.58 dated 2.1.88.

14. The learned Subordinate Judge framed the following issues:
1. Is the suit maintainable in its present form?
2. Is the suit barred by limitation and hit by PO 7/73?
3. Is the impugned order/decree passed by the learned District Judge in Miscellaneous Case No. 88/76 and the impugned auction sale in respect of the suit property illegal, fraudulent and were they passed and held against a dead man MA Naser?
4. Are the plaintiffs entitled to get the decree of declaration for their sixteen annas ownership in the suit property and are they the legal heirs of Abu Naser?
On the question of maintainability and limitation the learned Subordinate Judge found against the plaintiffs.

15. As to the other issues, the learned Subordinate Judge held that the plaintiffs have not succeeded in establishing their claim that Abu Naser is dead and on their (Plaintiffs) failure to prove the factum of death of Abu Naser, no ownership can accrue in favour of the plaintiffs as the legal heirs of Abu Naser inasmuch as defence side has shown that Abu Naser in question is still alive and in the legal heirship. So long as the said Abu Naser is alive, the presumptive heirs or the heir apparent like the plaintiffs cannot have absolute ownership in respect of the suit property. Accordingly the suit was dismissed by judgment and decree dated 23.6.88.

16. Plaintiffs then took the appeal, FA. No 46/88, to the High Court Division, Dhaka against the said Judgment and decree.

17. From the impugned judgment it appears that the learned Judges of the High Court Division agreed with the findings of the trial Court that the suit was barred by limitation. Being confronted with this difficulty the learned Advocate for the plaintiff-appellants offered to forgo the main reliefs prayed for in the plaint (in order to get over the difficulty of limitation) and submitted an application for amendment of the plaint on the date of delivery of judgment (sworn by the appellants on the day before) praying that the words (a)" and as such they are the sixteen annas owners of the suit property" in paragraph 26(a) of the plaint be deleted (b) that the prayers as in paragraphs 26(b) and 26(c) shall be deleted and (c) that the prayers as in paragraphs 26(d) and 26(e) shall be renumbered as paragraphs 26(b) and 26(c) respectively."

18. As amended the only prayer of the plaintiff-appellants in the suit which survived was for a declaration that the plaintiffs are the sole legal heirs and successors of late MA Naser.

19. The contesting respondents neither opposed the amendment of the reliefs nor contested the only issue which fell for determination after amendment.

20. The learned judges held that the amended prayer was not barred by any law of limitation or by any special statute and proceeded to decide the same on merit. Referring to section 108 of the Evidence Act which provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it, the learned Judges upon a consideration of the evidence adduced by the plaintiffs held that it was satisfactorily proved that MA Naser has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive. The burden of proving that MA Naser is alive, it was held, thus shifted to the defendants and on consideration of their evidence, it was found that they have not been able to prove the same and the presumption of death has not been rebutted.

21. It was ultimately found "that the plaintiffs have been able to prove that MA Naser married the plaintiff No. 1 in 1961 and plaintiff Nos. 2-4 were the legitimate children of MA Naser and plaintiff No.1. The plaintiffs have also proved that MA. Naser has not been heard of since 16.11.71. They have also proved that he has not been heard of for more than 7 years by those who would naturally have heard of him if he had been alive. We, therefore, draw the legal presumption that MA. Naser is dead. "Accordingly the suit was decreed as amended, by the impugned judgment, in that it was declared that the plaintiffs are the sole legal heirs and successors of late MA Naser. In the penultimate paragraph of the Judgment it has been observed thus: "From all accounts, the fate that the plaintiff appellants now suffer from this suit is, to say the least, unfortunate. They are now being driven out of a property which could have been legally theirs. For a paltry sum of Tk. 70/72 thousand, the valuable suit property has been auction sold for Tk. 34,62,500/-. The appellants are at least entitled to that amount minus the dues of the defendant No.1."

22. The plaintiffs obtained leave to appeal from the impugned judgment on 9 July, 1989 on the ground that having regard to the findings made by the High Court Division itself there was a patent illegality in the said judgement in that a decree against a dead man without impleading his heirs which was a nullity has been ignored and allowed to remain valid and that this court should interfere to undo the said wrong and do complete justice having regard to the facts and circumstances of the case.

23. Defendant No.4 (as also defendant No.1) who did not put up any contest to the amended prayer of the plaintiffs in the appeal having noticed the plaintiffs' move, which in the course of hearing has been described by her learned counsel" as an act of breach of faith", herself came up with a prayer for leave to appeal against the same judgement as a counter-measure which was granted on August 30 1989. Defendant No.4 now questioned the propriety of the finding made by the High Court Division that Naser was dead. It was also contended that in the absence of any evidence that Naser had died at any lime before the decree was passed on 21.9.77 in Misc. Case No. 88/76 it could not be said in any case that the decree was a nullity.

24. Dr. Kamal Hossain, learned counsel for the plaintiff-appellants (in CA. 68/89), has submitted that in view of the clear finding of the High Court Division that MA Naser is dead and that the plaintiffs are the legal heirs of said MA. Naser, the decree passed in Misc. Case No. 88/76 against MA. Naser without impleading the appellants is a nullity and of no legal effect. Dr. Kamal Hossain argued that even though the particular date as to the death of Naser could not be proved, it may be presumed having regard to the then prevailing circumstances that Naser, a non-Bengali, must have been killed on or about 16.11.71 since when he became untraceable. In this connection he referred to M. Monir's Law of Evidence (Pakistan Edition) Vol. 11 (1974) 1084 and Sarker's Law of Evidence 12th Edition 937. It has been argued that at any event the Money Execution Case No.7 of 1978 which was started on 1.12.78 after the expiry of seven years of disappearance of Naser and without impleading his heirs was wholly illegal and void. He referred to section 50 of the Code of Civil Procedure and AIR 1936 (Madras) (FB) 205 and AIR 1945 (Patna) (FB) 1 in support of his contention.

25. The learned counsel for respondent Nos. 1 & 2 i.e. defendants Nos. 1 and 4 respectively (in CA. 68 of 1989) vehemently argued that the plaintiffs having voluntarily relinquished all their claims made originally in the suit except praying for a simple declaration that they are the sole legal heirs of MA Naser by agreeing to amend the plaint, they are estopped/precluded from filing any appeal against the decree which they have obtained by their own choice and on the basis of consent and understanding with the defendant respondents. If has been submitted that the appellate decree was the result of a package deal between the parties and so the findings made by the High Court Division were not contested then. As to the argument now made that the decree was a nullity, the learned counsel contended that in the absence of any evidence that Naser had died before 21.9.77 (when the decree was passed) it could not be said in any case that the decree was passed against a dead man because there is no presumption as to the date of death within the period of seven years under section 108 of the Evidence Act which is a matter of evidence. The learned counsel in support of their submission referred to AIR 1926 (PC) 9, PLD 1962 (WP) Lahore 137 and other decisions. It has been argued, in view of the present plea of the plaintiffs, with equal vigour in the other appeal (CA 72/89) that the finding that Naser was dead was itself wrong and based on gross misappreciation of the evidence on record. The evidence of the DWs that Naser is alive and doing business in Karachi has been illegally discarded, it is submitted.

26. We have considered the facts and circumstances of the case in the light of the submissions made by the learned counsel for the parties. It appears to us that the objection raised by the learned counsel for the defendant-respondents as to the competence and propriety of the appeal by the plaintiffs assumes fundamental importance’s in view of the manner and circumstances in which the impugned judgment and decree were passed by the High Court Division. It has been noticed that the High Court Division concurred with the findings of the Subordinate Judge that the suit was barred by limitation and there is no further challenge to the said finding. The suit was, therefore, liable to be dismissed on that ground alone but in order to avoid a complete shipwreck the plaintiffs, it seems, elected to give up all the reliefs prayed for in the suit and to limit their prayer to a declaration that they are the sole legal heirs of MA Naser. The contesting defendants, evidently complacent at nothing to lose, neither opposed the prayer for amendment of the plaint nor the issue which was to be decided on the basis of the said amendment. That this was brought about on the basis of understanding and consent of the parties will be evident from the fact that the prayer for amendment was made on the date of delivery of judgment. The observation made by the High Court Division in this connection is also significant. It says: Both Mr. Mahfuzur Rahman and TH Khan (learned Advocates for defendants 1 and 4 respectively) have submitted that the suit and the appeal can very well protected with the only remaining aforesaid prayer. They have the instructions of their respective clients that they will not enter any contest in this appeal with the appellants if the appellants limit their prayer to a declaration that they are the sole legal heirs and successors of late MA Naser. Accordingly they have not advanced any argument in this appeal either in respect of the appellant's only remaining prayer or in support of the findings of the learned Subordinate Judge that the plaintiffs have not been able to prove the death of MA Naser.

27. It is abundantly clear from the above that the decree which was passed by the High Court Division was for all practical purposes a consent decree, the plaintiffs having consciously given up their claim to the ownership of the suit property and objection as to the decree passed in Misc. Case No. 88 of 1976 and the proceedings of Money Execution Case No.7 of 1978. The learned counsel for the respondents have referred to section 96(3) of the Code of Civil Procedure which provides that no appeal shall lie from a decree passed by the Court with the consent of parties. They have also invoked in aid the principle of Order II, rule 2(2) of the said Code which provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

28. Mr. Maksum-ul-Hakim referred to AIR 1931 (PC) 107 for highlighting the abhorrence of the judicial committee to consent decrees. The judgment of the Judicial Commissioners in that case was by consent of the parties and a plea was taken later on that there had in fact been no consent to the judgment and that the statement to that effect by the Judicial Commissioners was a mistake. Upon considering the facts of the case it was observed that "Under these circumstances which their Lordships have characterized not without reason as peculiar, it is impossible for them to accept without further question the affirmation by the judgment of the Judicial Commissioners that the decree they were about to pass was a decree by consent of parties. If it was so in fact, it clearly could not be challenged by way of appeal, and the certificate should have been refused".

29. Mr. TH Khan, learned counsel, also appearing for defendant No. 4, sought to conjure up vividly as to why no resistance was given to the plaintiffs' limited prayer in the High Court Division. He submitted that the defendants did not object to the plaintiffs' prayer because the question of validity of the marriage between MA Naser and plaintiff No.1 was involved and it was realized that the plaintiffs' only anxiety before the High Court Division (in the suit) was to obtain a declaration for a legal and social stamp of legitimacy and recognition to them and to remain satisfied with the excess sale proceeds lying in deposit with the Court. Mr. Khan resolutely argued that the plaintiffs could not be allowed to agitate the same cause/causes which they had voluntarily abandoned and in the bargain secured a favourable decree for themselves with the passive assistance of the defendants but for which it may not have been possible. The plaintiffs are debarred by the principle of estoppel, even to file the present appeal, he submitted. Mr. Khan referred to Halsbury's Laws of England, Third Edition, Volume 15 p.171 where it has been said that on the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions; first, that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resale, and, second, that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.

30. In AIR 1956(SC) 593(601) an observation of Scrutton, LJ in Verschures Creameries Ltd. V. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608 has been referred to which is very instructive: "A plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scottish law, where it is used to express the principle embodied in our Doctrine of Election—namely, that no party can accept and reject the same instrument: Ker Vs. Wauchope (1819) 1 Bligh 1 (21); Douglas Menzies Vs. Umphelby 1908 AC 224 (232). The Doctrine of Election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction."

31. The Supreme Court then observed that "It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the Doctrine of Election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto".

32. On the question of estoppel Mr. Khan has also referred to PLD 1971 (SC) 376 (390-391) in which Hamoodur Rahman CJ. observed thus:
"The Doctrine of Estoppel is not confined to the matters dealt with under section 115 of the Evidence Act, for, as pointed out by Garth, CJ in the case of Ganges Manufacturing Co. Vs. Sourajmull, ILR 5 (Cal) 669 "estoppels in the sense in which the term is used in the English legal phraseology arc matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act". It has been defined in Halsbury's Laws of England (2nd Edn), Vol. 13," as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate."

33. All these principles, as noticed above, are found to be clearly applicable in the facts of the present case. Since the plaintiffs elected to relinquish all the reliefs except the one as noticed above apparently for saving the suit from limitation and to secure some benefit for themselves, they are bound by the Principle of Estoppel and cannot be permitted to argue for the same reliefs which have been voluntarily abandoned by them. The decree that has been obtained by them being otherwise based on understanding and consent of the parties as will be evident from the facts noticed above, they are not permitted on principle and authority to take any appeal from such consent decree. On the same principle, more or less, defendant No.4 is also barred from preferring any appeal from the impugned judgment. She has not, admittedly, put up any contest to the issue which was decided by the High Court Division; therefore, she also cannot be permitted to open a fresh front in this appeal and challenge the findings which were not opposed. It is, however, understandable that she was obliged to file her appeal only when the plaintiffs had filed theirs.
Having regard to the rationale upon which we have considered the present appeals it is neither necessary nor right to enter into the question whether in view of the presumption under section 108 of the Evidence Act and the finding made by the High Court Division that the presumption of death of Naser could not be rebutted, the decree in Misc. Case No.88/76 was a nullity or the proceeding in Money Execution Case No. 7 of 1978 was void and similarly whether the findings made by the High Court Division as to the death of MA Naser are correct or not. The parties must be left to be governed by the impugned judgment and decree as they are.
In view of the discussion above, both the appeals are dismissed without any order as to costs.
Ed.

Pashan Ali Mia Vs. Mozammel Hossain, (Muhammad Imman Ali, J.)

Case No: CIVIL PETITION FOR LEAVE TO APPEAL No. 1171 OF 2014

Judge: Md. Abdul Wahhab Miah, J, Nazmun Ara Sultana, J, Mirza Hussain Haider, J. Md. Nizamul Huq, J.

Court: Appellate Division ,

Advocate: Mr. Subrata Chowdhury, Senior Advocate, instructed by Mrs. Sufea Khatun, Advocate-on-Record ,

Citation: 2018(2) LNJ (AD)

Case Year: 2016

Appellant: Pashan Ali Mia

Respondent: Mozammel Hossain

Subject: Contract Act

Delivery Date: 2019-12-02

APPELLATE DIVISION

(CIVIL)

Md. Abdul Wahhab Miah, J,

Nazmun Ara Sultana, J,

Mirza Hussain Haider, J.

Md. Nizamul Huq, J.

Judgment on

30.05.2016

}

Pashan Ali Mia

. . . Petitioner

-Versus-

Mozammel Hossain

. . . Respondent

Contract Act (IX of 1872)

Section 17

Code of Civil Procedure (V of 1908)

Section 115(1)

It is a well established principle that fraud vitiates everything. In this case the defendant’s fraud has been found proved by all the Courts and hence the suit was rightly decreed. In view of the facts and circumstances discussed above, we do not find any illegality or infirmity in the decision arrived at by the High Court Division. However, we are of the opinion that ends of justice will be sufficiently met if the order of cost of Tk. 20,000/- is expunged. The order of the appellate Court, in respect of cost of Tk. 5000/- awarded by that Court has not been altered by the High Court Division and is hereby maintained. . . . (11 and 12)

For the Petitioner: Mr. Subrata Chowdhury, Senior Advocate, instructed by Mrs. Sufea Khatun, Advocate-on-Record

For the Respondent : Mr. Md. Taufique Hossain, Advocate-on-Record

JUDGMENT

Muhammad Imman Ali, J: This civil petition for leave to appeal is directed against the judgement and order dated 07.11.2013 passed by a Single Bench of the High Court Division in Civil Revision No. 2642 of 2008 discharging the Rule with costs.

2. The facts, relevant for disposal of the instant civil petition for leave to appeal, are that the respondent herein as plaintiff filed Other Suit No. 44 of 2003 in the Court of Senior Assistant Judge, Tangail, for cancellation of Deed of Exchange No. 3471 dated 09.7.2001. He stated, inter alia, that the land described in schedule No. 1 measuring an area of 11½ decimals was owned and possessed by the plaintiff, respondent herein and the land described in schedule No. 3 of the plaint measuring an area of 15 decimals was owned and possessed by the petitioner. The said 15 decimals of land is contiguous to the land of the plaintiff wherein his residence is situated, and considering comfort of both the parties they came to an agreement to exchange the aforesaid respective lands. Accordingly, on 09.07.2001 the disputed deed of exchange had been executed. But before execution of the disputed deed of exchange the defendant Pashan Ali by executing two deeds dated 03.03.1992 and 03.01.1996 transferred his 15 decimals of land to his brother Chinta Miah and by suppressing such transfer executed the disputed deed of exchange claiming the 15 decimals of land as his own. The plaintiff did not get possession of the 15 decimals of land in exchange of his 11½ decimals. After execution of the disputed deed, on query made by the plaintiff, the defendant assured him that he would hand over the exchanged land after purchasing the same from successors of his brother, but the clever defendant by two deeds purchased 7 decimals of land in the name of his son Shahidul Islam. By showing the deeds in the name of their father, the successors of the defendant’s brother claimed their title in the disputed land. On such claim a shalish was held in presence of local elites wherein it was decided that the defendant has got title only over 10 decimals of land and he is not entitled to get further land, as such the defendant could not hand over the exchanged land to the plaintiff. The plaintiff could not realise that the defendant collusively transferred 15 decimals of land to his brother before executing the disputed deed of exchange though he had no right and title over the said 15 decimals of land and had no right to transfer or exchange the same.

3. The defendant contested the suit by filing written statement denying all the material averments made in the plaint. He stated, inter alia, that vide a deed dated 03.11.1991 he got total 92 decimals of land from his father including 4 decimals out of the land of Plot no. 55 and 25 decimals of land of Plot No. 31 under Mouza Bonogram. Subsequently, by executing deeds he transferred some land to his brother Chenu Miah, who subsequently by executing deed of Heba-bil-Ewaz No. 59 dated 03.01.1996 transferred 19 decimals of land of Plot No. 31 to the defendant. In the same manner the defendant became owner of 2 decimals of land in Plot No. 65 and 10 decimals of land in Plot No. 31 which is under his possession and ownership. This land is contiguous to the land of the plaintiff and as such the plaintiff proposed to him to exchange that land with his land, and he agreed to such proposal. As per their agreement the plaintiff’s cousin Abdul Hakim was entrusted with the duty of writing and registering the deed of exchange. On the impression that 11½ decimals of land had been transferred by the plaintiff in exchange of his aforesaid 12 decimals, he on good faith put his left thumb impression (LTI) in the disputed deed and handed over possession of 12 decimals of land to the plaintiff, but the plaintiff in collusion with his said cousin included further 3 decimals of land of C.S. Khatian Nos. 59 in the said deed, but in fact the defendant has got no right and title over the said 3 decimals of land. As per the agreement, possession of 12 decimals of land was handed over to the plaintiff, and in exchange he got 11½ decimals and has been residing therein by constructing his residence. At cost of huge money and labour he developed the quality of the suit land. Due to establishment of new bazaar in the land contiguous to his residence, the value of the disputed land has increased and the plaintiff with evil intention instituted the suit.

4. After hearing the parties and considering the evidence and materials on record the Senior Assistant Judge, Tangail, by the judgement and decree dated 11.09.2006 decreed the suit. Then the defendant preferred Other Class Appeal No. 180 of 2006, which was heard by the Joint District Judge, Third Court, Tangail, who by his judgement and decree dated 13.02.2008 dismissed the appeal with costs of Tk. 5000/- and upheld those passed by the trial Court.

5. Being aggrieved, the defendant filed Civil Revision No. 2642 of 2008 before the High Court Division and obtained Rule, which upon hearing the parties concerned was discharged with costs of Tk. 20,000/-. Hence, the defendant is now before us having filed the instant civil petition for leave to appeal.

6. Mr. Subrata Chowdhury, learned Senior Advocate appearing on behalf of the petitioner submitted that the Courts below erred in determining the actual quantum of land exchanged and the defendant petitioner asserted that in exchange of .11½ acre of the plaintiff’s land he gave .12 acre and not .15 acre, and though to that effect sufficient materials are lying with the record, but those were not looked into or perused by any of the Courts below and thus committed error of law decreeing the suit. He further submitted that the petitioner after execution and registration of the exchange deed developed his portion by filling earth and constructed residential house at a huge cost and has been living there with his family members and 2 years after execution and registration of the exchange deed the plaintiff filed the suit with the plea of not getting the entire exchanged property and with the collusive inclusion of .03 acre. In support of his contention the defendant produced sufficient materials which are on record, but none of the Courts below went through the evidence and thus occasioned failure of justice. He submitted that the Courts below in decreeing the suit failed to appreciate the evidence on record, in particular the evidence of the defendant petitioner, wherein the plea of the defendant that the exchange deed was agreed upon to exchange .12 acre and not .15 acre in exchange of .11½ acre and the witness of the defendant though proved the same, but those are not reflected in any judgement of the Courts below and thus those are erroneous and not sustainable in law. He lastly submitted that the Courts below ought to have dismissed the suit on the ground that the plaintiff filed the suit simply seeking cancellation of the deed and he did not seek the remedy of khas possession of the second schedule land which is admittedly under possession of the defendant petitioner and as such the suit is not maintainable and decreeing the suit the Courts below committed error of law.

7. Mr. Md. Taufique Hossain, learned Advocate-on-Record appearing for the respondent made submissions in support of the impugned judgement and order of the High Court Division.

8. We have considered the submissions of the learned Advocates for the parties concerned, perused the impugned judgement and other connected papers on record.

9. The High Court Division observed that the exchange deed executed by the defendant is beyond question and its contents have not been denied by anybody. It was further observed that, “apparently the defendant played fraud upon the plaintiff. He executed the deed of exchange in respect of some land over which he had no right and title, rather it was transferred by him to his brother much earlier to the date of execution of the disputed deed.” The High Court Division noted that the facts and circumstances and the depositions of the witnesses made it clear that he defendant played fraud upon the plaintiff by executing the disputed deed of exchange in respect of some land over which he had no right, title and possession, accordingly the Rule was discharged with cost of Tk. 20,000/-.

10. We note from the judgement of the appellate Court that the appeal was dismissed awarding cost of Tk. 5000/- against the appellant.

11. It is a well established principle that fraud vitiates everything. In this case the defendant’s fraud has been found proved by all the Courts and hence the suit was rightly decreed.

12. In view of the facts and circumstances discussed above, we do not find any illegality or infirmity in the decision arrived at by the High Court Division. However, we are of the opinion that ends of justice will be sufficiently met if the order of cost of Tk. 20,000/- is expunged. The order of the appellate Court, in respect of cost of Tk. 5000/- awarded by that Court has not been altered by the High Court Division and is hereby maintained.

25. With the above modification, the civil petition for leave to appeal is dismissed.

End of volume.

CIVIL PETITION FOR LEAVE TO APPEAL No. 1171 OF 2014.

(From the judgement and order dated 7^th of November, 2013 passed by the High Court Division in Civil Revision No. 2642 of 2008).

Paul Reinhurt Limited and another Vs. Prime Textiles Spinning Mills Ltd. and others

Case No: Civil Revision Nos. 1937, 1938 & 1939 of 1995.

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mr. Rafique-ul-Huq,Dr. M Zahir,,

Citation: 54 DLR (2002) 17

Case Year: 2002

Appellant: Paul Reinhurt Limited and another

Respondent: Prime Textiles Spinning Mills Ltd. and others

Subject: Property Law,

Delivery Date: 2001-11-06

Paul Reinhurt Limited and another Vs. Prime Textiles Spinning Mills Ltd. and others
54 DLR (2002) 17

Supreme Court
High Court Division
(Civil Revisional jurisdiction)

Present:
Md. Abdur Rashid J
Hassan Foez Siddique J

Paul Reinhurt Limited and another ………..Petitioners
Vs.
Prime Textiles Spinning Mills Ltd. and others……Opposite Parties

Judgment
November 6, 2001.

Arbitration Act (X of 1940)
Section 32

After coming into force of the Arbitration Act in 1940, any suit either for enforcement of an award or challenging the existence or validity of an agreement or award is prohibited. Section 32 makes such prohibition absolute.

Section 32

A suit for declaration that a contract (even though it contains an arbitration agreement) is void or that there was no existence of any such contract is not barred under the provision of section 32 of the Act.

Cases Referred To-
Md. Yousuf vs Alhaj G P Mollah and Co. 1987 BLD 77; Tofazzal Hossain Akon vs. Sekeluddin Akon, 1954 PLR 599, State of Bombay vs. Adamjee Hajee Dawood and Co., AIR 1951 Calcutta 147; Serajuddin and Co. vs. Michael Golodetz, AIR 1960 Calcutta 47; Pratambull Rameshwar vs. K Sethia Ltd. AIR 1960 Calcutta 702; Probity Shipping Corporation and another vs. StateTrading Corporation of India (1980-81) 85 CWN 268, times Orient Transport Co. vs. Jaya Bharat C & J Co., AIR 1987 (SC) 2289; Mecca Mills vs. Bangladesh Shilpa Bank, (1999) 4 BLC 169; Salamat Khan vs. QG Ahad, (1978) 30 DLR (SC) 271; Government of India vs. Jamunadhar Rungra and others, AIR 1960 Patna 19; BIWTA vs. United TC, 41 DLR 513; Shafiqur Rahman vs. Mir Nazmul Hossain Khan, 44 DLR 428=46 DLR 165; Satish Kumar vs Suinder Kumar, AIR 1970 (SC) 833;Bhajahari Saha Bankkya vs. Behary Lal Basak. (1909) ILR 33 Cal 881 at page 898; Jugal Kishore vs Goolbai, AIR 1955 (SC) 812; Union of India vs. Rallia Ram, AIR 1963 (SC) 1685; Salamat Khan vs. QG Ahad, 30 DLR (SC) 271.

Lawyers Involved:
Dr. M Zahir with Afreen Mohiuddin and AHM Mizanur Rahman—For the Petitioners.
Rafiq-ul Huq with Ahsanul Karim, M Moniruzzaman and Aneek R Hoque—For Opposite Party No. 1.
Tania Amir—For Opposite Party No. 2.

Civil Revision Nos. 1937, 1938 & 1939 of 1995.

Judgment

Md. Abdur Rashid J.- This order will dispose of the above three Rules.

2. The Rules were obtained by defendant Nos. 1 and 2 upon making three revision applications under section 115 of the Code of Civil Procedure against an order dated 24-5-95 passed by Subordinate Judge, 5th Court at Dhaka in Title Suit No. 139 of 1994.

3. Opposite Party No. 1, a limited company, instituted the suit for following declarations as well as perpetual injunctions:
a. Permanent injunction against the defendants restraining them from taking any legal or other action and/or proceeding on the basis of alleged contracts said to have been entered into between the plaintiff and defendant No. 1 and also on the basis of illegal, malafide and void Award obtained by the defendant No. 1 from the defendant No. 1.
b. declaration that the plaintiff never entered into any agreement in relation to contracts No. 7209 dated 25-8-9 1, Nos. 7228 and 7229 both dated 26-8- 91 and 7311 dated 17-9-91 with the defendant No. 1 and/or its agent defendant No. 2 nor there was any written agreement with defendant No. 1 or its agent defendant No. 2 to refer any dispute to the defendant No. 3 for arbitration
c. declaration that there was no written agreement between the plaintiff and the defendant No. 1 and/or No. 2 giving any jurisdiction to the defendant No. 3 to arbitrate the alleged dispute.
d. permanent injunction restraining the defendant No. 3 from black listing and or otherwise taking any punitive action against the plaintiff relating to and/or in connection with the Award dated 22-10-92 given by them and/or relating to the alleged contracts on the basis of which the Award was given.
e. declaration that ex parte Award dated 22-10-92 given by the defendant No. 3 in favour of the defendant No. 1 is ex facie illegal, without jurisdiction, void and malafide and has no legal basis nor the same can be executed against the plaintiff. (underlined by us)

4. Defendant Nos. 1 and 2 appeared in the suit and made three applications. One of them was for return of the plaint, another was under section 34 of the Arbitration Act, hereinafter referred to as the Act, for stay of further proceedings of the suit and the last one for rejection of the plaint under Order 7 rule 11 of the Code of Civil Procedure, briefly, the Code. In the applications, it is stated that the plaintiff entered into four contracts dated 25-8-91, 26-8-91 and 17-9-91 with said defendants for import of cotton. All the contracts contained arbitration agreement to refer all disputes present and future to the defendant No. 3. There were disputes and defendant Nos. 1 and 2 referred the disputes to the defendant No. 3, which was named in the contracts as the arbitrator. As the plaintiff did not turn up, defendant No. 3 on 22-10-92 made the award ex parte. The plaintiff first on 12-1-93 took an action before the High Court of Justice at England being 1993 Folio No. 41. The action was dismissed for want of steps by the said Court by its order dated 11-11-94.

5. Meanwhile, on 18-11-93 the plaintiff lodged a Notice of Appeal against the Award before the ‘Technical Appeal Committee.” But the plaintiff failed to deposit the necessary fees and other charges and the defendant No. 3 informed the plaintiff by its letter dated 28-10-95 that the appeal was struck out and the award dated 22-10-92 was declared final, and valid and binding on the parties.

6. On the above assertions, it was prayed one application, for return of the plaint on the ground that the plaintiff challenged the award in the garb of a suit without making the statutory security as required under section 33 of the Act.

7. In the second application, may be alternatively, the prayer was for stay of further proceedings of the suit under section 34 of the Act on the ground that as the suit related to arbitration proceedings, and as such, the suit could not proceed.

8. Last prayer, seems to be the main, was for rejection of the plaint under Order 7 rule 11 of the Code.

9. The plaintiff opposed all the applications by filing separate written objections.

10. All the three applications were heard together, and rejected by one order, against which; above three Rules’ were unnecessarily obtained as stated above.

11. Dr. M. Zahir, learned Senior Counsel for the petitioners, submits that the award is sought to be set aside in the suit instead of making an application under section 33 of the Act. Under section 33, before filing any objection, furnishing of statutory security as per provisions of the Law Reforms Ordinance, 1978 was mandatory. Without the statutory security, the plaint is liable to be returned,

12. Secondly, he submits that when the suit relates to and seeks to set aside a valid award, such suit cannot proceed under the provisions of section 34 of the Act.

13. Lastly, he submits that the suit as framed for setting aside a valid award is barred by the provision of section 32 of the Act as well as those of section 11 of the Act. Accordingly, the plaint of the suit is liable to be rejected under Order 7 rule 11(d) of the Code.

14. In support of his submissions, he cited the decision in the case of Md. Yousuf Vs. Alhaj G P Mollah and Co., 1987 BLD 77.

15. Opposing the Rules, Mr Rafiq-ul Huq, learned Senior Counsel for the plaintiff submits, we find rightly, that the trial Court correctly rejected the applications for return of the plaint and stay of further proceedings of the suit since there was no proceeding pending for arbitration.

16. Against the application for rejection of the plaint on the ground of the bar under section 32 of the Act, he submits first that the bar under the provisions of section 32 of the Act does not cover the instant suit. Elaborating, he submits that no one is debarred from instituting a suit of civil nature under section 9 of the Code either impeaching a contract or the existence of a contract. In the plaint of the suit, the plaintiff categorically has denied entering into any of the four contracts (described above) and the plaintiff has also asserted that it never executed or signed any of the contracts. When the contracts were not executed, there was no occasion for the existence of an arbitration agreement and the award passed thereupon must be held to be void.

17. He also submits that the ex parte decision of the High Court of Justice at England or the Award in question cannot bar the suit under the provisions of section 11 of the Code.

18. In support, he cites the decisions in the cases of Tofazzal Hossain Akon Vs. Sekeluddin Akon, 1954 PLR 599, State of Bombay Vs. Adamjee Hajee Dawood and Co., AIR 1951 Calcutta 147, Serajuddin and Co. Vs. Michael Golodetz, AIR 1960 Calcutta 47, Pratabmull Rameshwar Vs. K Sethia Ltd. AIR 1960 Calcutta 702, Probity Shipping Corporation and another Vs. State Trading Corporation of India, (1980-81) 85 CWN 268, Orient Transport Co. Vs. Jaya Bharat C & J Co, AIR 1987 (SC) 2289.

19. It is also submitted that what is the suit for, the purpose of section 32 of the Act or Order 7 rule 11 of the Code could only be ascertained by reference to the averments made in the plaint not to the prayer or relief prayed for since the prayers or relief following the plaint are no part of the plaint Reliance was placed on the decision in the case of Mecca Mills Vs. Bangladesh Shilpa Bank, 4 BLC 169.

20. On behalf of the defendant No. 3 an application was made and moved for striking out its name, mainly, on the ground that no relief was prayed for against such defendant nor its presence in the suit is necessary. Moving the application, Mrs. Tania Amir, learned Counsel addressed us on all possible questions raised including res judicata rejection of the plaint, maintainability of the suit, forum shopping etc. We find no objection against the prayer, either from the plaintiff or the defendant Nos. 1 and 2.

21. Dr Zahir, in reply, submits that if the plaint is read as a whole, there was no scope to deny that the suit was instituted challenging the existence of the arbitration agreement and the award given and the suit is therefore barred under section 32 of the Act. He also submits that the case of Mecca Mills does not cover the instant case, for section 32 of the Act bars a suit not a plaint. The suit is solely based on the assertion that the plaintiff did not sign any of the four contracts, he submits, no such signature is necessary for the existence of an arbitration agreement and the award to be made upon such arbitration agreement. He relies upon the authority in the case of Salamat Khan Vs. QG Ahad, (1978) 30 DLR (SC) 271. Finally, he submits, even if the plaint may escape rejection under res judicata but the suit cannot evade the bar of section 32 of the Act.

22. In order to appreciate contradictory submissions of learned Counsels, we need to examine closely the following provisions of the Arbitration Act, 1940.
Section 30.- An award shall not be set aside except on one or more of the following grounds, namely,-
(a) that an arbitrator or umpire has misconduct himself or the proceedings;
(b) that an award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under section 35;
(c) that an award has been improperly procured or is otherwise invalid.
Section 31. (1) Subject to the provisions of this Act, an award may be filed in any Court having jurisdiction in the matter to which the reference relates.
(2) Notwithstanding anything contained in any other law for the time being in force and save as otherwise provided in this Act, all questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the Court in which the award under the agreement has been, or may be, filed, and by no other Court.
(3) All applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to no other Court.
(4) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and in no other Court.
Section 32.- Notwithstanding any law for the time being in force, no suit shall lie, on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act.
Section 33.- Any party to an arbitration agreement or any person claiming under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits:
Provided that where the Court deems it just and expedient, it may set down the application for hearing on other evidence also, and it may pass such orders for discovery and particulars as it may do in a suit:
Provided that no application challenging the existence or validity of an award or for having its effect determined shall be entertained by the Court unless the applicant had deposited in the Court the amount which he is required to pay under the award or has furnished security to the satisfaction of the Court for the payment of such sum or for the fulfillment of any other obligation by him under the award.
Section 34.- Where arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings.”

23. The Bar addressed us at length. Many questions were raised over those three applications. We have already expressed ourselves that the trial Court has correctly rejected the applications for return of the plaint and stay of further proceedings of the suit. Order 7 rule 10 of the Code has provided the circumstances in which a plaint of a suit should have to be returned for filing in proper Court. In view of the provisions of section 41 of the Act, even if such provisions for return of the plaint is available but we do not find any of the circumstances for return of the plaint. The submissions of Dr. Zahir that the plaint of the suit is nothing but an application under section 33 of the Act and such application without deposit of the statutory security is not maintainable are wholly misconceived for we do not find any reason so to read.

24. And section 34 of the Act empowers the Court to order stay of the legal proceedings under certain conditions and such order can only be passed pending arbitration in accordance with the arbitration agreement. In the case before us, an award has already been made which the defendant No. 3 claims to be final and binding upon the parties, and there is no proceeding pending for arbitration. In such circumstances, the submissions of Dr. Zahir have no substance. Consequently, the trial Court did not commit any error in rejecting the application for stay of further proceedings of the suit.

25. Now, we shall consider the moot issue raised as to whether the suit is barred by the provisions of section 32 of the Act or hit by the principles of res judicata under section 11 of the Code and the plaint is accordingly liable to be rejected under Order 7 rule 11(d) of the Code.

26. We shall now consider questions in the light of the decisions cited at the Bar. In State of Bombay Vs. Adamjee Hajee Dawood & Co., AIR 1951 Calcutta 147, an appeal from a decree dismissing a suit on a preliminary issue that the suit was not maintainable in view of section 32 of the Arbitration Act, 1940. The suit was instituted for a declaration that a certain contract was not made between the parties and is not binding on it. There was a prayer for an injunction for restraining the defendant, its servants and agents from making any claim or demand on the contract. Banerjee J held,-
“The Arbitration Act lays down a definite procedure for challenging the arbitration agreement and on a plain reading of the sections, I am of the opinion that section 32 does not hit a suit which challenges the validity of a contract though it contains an arbitration clause.”
While in concurring, Harries, CJ also held,-
“Sections 32 and 33 on their true construction do not purport to deal with suits for declarations that there never was a contract or that a contract is void. The section must be confined to attacks on arbitration agreements and awards and the fact that an arbitration agreement may fall with contract does not prevent the Court declaring in a properly constituted suit that there never was a contract at all or that the contract is void and of no effect.”
In Serajuddin and Co. Vs. Michael Golodetz and others, AIR 1960 Calcutta 47, an appeal from an order of stay granted by a single judge under section 34 of the Act in staying a suit pending disposal of an arbitration proceeding before American Arbitration Association. The suit was instituted on the Original Side of the Calcutta High Court, claiming, inter alia, the contract in question “be adjudged void and delivered up and cancelled,” buyers be restrained “from taking steps in purported enforcement of the said contract,” and ‘declaration, if necessary, that the said contract stands discharged and that the parties have no rights or obligations thereunder.”
In an elaborate judgment in setting aside order of stay, a division bench also attempted to define the term ‘foreign arbitration‘ as following,-
“What, in the eye of law, is a foreign arbitration, is not very clear. But the decisions, in which the terms, ‘foreign arbitration’ and ‘foreign award’ have been used, appear to have used the same in connection with arbitrations in foreign lands by foreign arbitrators, to which foreign law is applicable and in which a foreign national is involved.”
“The parties, therefore, must be deemed to have adopted the American law for the settlement of their disputes by arbitration. This is confirmed by two other circumstances. The forum or venue of arbitration in the present case is to be New York (vide the arbitration clause itself) and the arbitration also would presumably be by American citizens as arbitrators (vide the Rules) (including ‘Foreward’) of the American Arbitration Association and the actual selection and appointment of arbitrators in the present case). Prima facie then, the parties must have accepted the American law—at least, for purposes of arbitration. In the above view, the Indian Arbitration Act would be excluded and it would be irrelevant, so far as the present arbitration is concerned.”
It reasoned that-
“But, as section 34 does not stand alone as the words ‘arbitration agreement’, as used in that section, must have the same meaning as in the several other sections, which employ the said term, and so section 34 cannot be separately or independently construed, and, as the said other sections and the term ‘arbitration agreement’ as employed therein, if applied to foreign arbitrations, would, on the above view, affect the vires of the Act and place it beyond the legislative competence and powers of the enacting legislature, the above prima facie construction of section 34 would have to be rejected.”
On the above view and reasons, the Division Bench held that section 34 of the Act would not apply in the instant arbitration and accordingly, set aside the order of stay.
In Pratabmull Rameshwar vs KG Sethia Ltd., AIR 1960 Calcutta 702, a suit was instituted for declaration that certain jute contracts (four in number) and the Arbitration agreements contained therein are void and unenforceable, that such awards may be taken off the file, and for perpetual injunction restraining the defendants, their servants and agents from enforcing the award or taking any steps thereunder.
The contracts were made through the exchange of usual Bought Notes. Disputes had arisen, the defendant referred the dispute to the Arbitration of London Jute Association. Defendant’s claims failed before the arbitrators. On appeal therefrom before the Committee of London Jute Association, the Special Committee made an award in the form of a special case. The Court and the Court of Appeal upheld the award and the House of Lords also dismissed the appeal therefrom. Then, the respondent KC Sethia Co. made an application under section 5 of the Arbitration (Protocol and Convention) Act, 1937 to file the foreign award and the appellant brought the suit. The appeal was dismissed on the following view of PB Mukharji, J,-
“I am therefore inclined to hold for these reasons that the appellant has a right to institute this suit but the awards and the judgments on the special case by the English Courts constitute a good valid defence to such action in the facts of the present case under section 4(2) of the Protocol Act."
In Orient Transport Co. Vs. Messers Jaya Bharat C & J Go, 1987 AIR (SC) 2289, an appeal from a judgment dismissing the suit in view of section 32 of the Act. The suit was for declaration that eight contracts/agreements executed were not ‘Hire purchase agreements but were agreements relating to transaction of loan and for injunction. The Supreme Court of India construed section 32 of the Act as hereunder,-
“Section 32 of the Act stipulates that notwithstanding any law for the time being in force no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in the said Act.
If the intention of the legislature were that all documents containing an arbitration clause should come within the purview of sections 32 and 33, the legislature would have said so in appropriate words. These sections have a very limited application, namely, where the existence or validity of an arbitration agreement and not the contract containing the arbitration agreement is challenged.”
In the Govt., of India Vs. Jamunadhar Rungta others, AIR 1960 Patna 19, appeals from judgment passed in a suit instituted for declaration that the award given was illegal and void, a Division Bench of the Patna High Court held-
“54. The true legal position may, therefore, be formulated as follows:
1. An arbitration agreement or an award can neither be challenged nor enforced by suit.
2. No proceedings or action may be taken which shall affect in any way an arbitration agreement or award otherwise than as provided in the Indian Arbitration Act, 1940
3. The existence of an arbitration agreement or award may be set up as a bar in defence to a suit based on the original cause of action arising out of rights and titles which formed the subject-matter of such an agreement or award.
4. Even if no such defence has been taken but at any stage of suit before a court of law, it comes to its notice that the subject-matter of the suit has been adjudicated upon by arbitration in pursuance of an agreement between the parties according to law and the parties have accepted the award and have acted upon it, or, the prescribed period of challenging the award has elapsed, it is the duty of such a court to refuse to give any relief to the plaintiff or plaintiffs of such a suit.”
In our Jurisdiction, in Md. Yousuf Vs. Alhaj GP Mollah & Co., 1987 BLD 77, the Court on receipt of award through postal mail registered a suit. The Court the application challenging the maintainability of the suit. This Division, in revision, held that “the award filed in Court is not an arbitration award as there was no arbitration agreement between the parties to refer the matter for arbitration.” and upon such finding, dismissed the suit.
In BIWTA Vs. United TC, 41 DLR 513, a suit was instituted for a decree for some amount of money on the basis of an award. A preliminary issue was raised on the maintainability. The Court held that the suit was maintainable on the view that the suit was not barred under section 32 of the Arbitration Act, 1940. This Division, in revision, appears to have considered the section 32 of the Act for the first time. It found that in the garb of a money, suit that was a suit for enforcement of the award, which was barred under section 32 of the Act.
In Shafiqur Rahman Vs. Mir Nazmul Hossain Khan, 44 DLR 428=46 DLR 165, a suit was instituted for declaration that the award dated 5-8-79 given by the defendants 1 to 6 and Mvi. Abdul Sattar was null and void and not binding upon the plaintiff. The defendants made an application for rejection of the plaint on the ground that the provisions of the Act barred the suit. The Court rejected the plaint under Order 7 rule 11(d) of the Code on the ground of limitation but not under the provisions of the Act. In an appeal preferred therefrom, a Division Bench of this Division held that-
“Since section 32 of the Arbitration Act bars such a suit challenging the validity of an award, we find that the suit was barred by the provisions of section 32 of the Arbitration Act. The learned Subordinate Judge should have rejected the plaint on the finding that it was barred by the provision of section 32 of the Arbitration Act, instead he rejected the plaint as being barred under Article 158 of the Limitation Act which is not tenable.”
In Tofazzal Hossain Akon Vs. Sekeluddin Akon, 1954 PLR 599, a Single Bench in exercising revision jurisdiction rejected an application under section 33 of the Act as not maintainable on the view that,-
“Whether a person is a party to the arbitration agreement cannot possibly be a matter that can be referred to the arbitration for their decision and, in fact, as it appears from the Achalnama that it was not referred to the arbitration; therefore, the suit for a declaration that a person has not submitted to arbitration or has not entered into arbitration agreement cannot be barred under section 32. Besides that, the opening words “any party to an arbitration agreement” in section 33 clearly indicate that the relief provided for in the section is for those who are admittedly parties to the arbitration agreement.”

27. In view of the above decisions, we are unable, with respect, to take the view of the learned single judge as the correct statement of law. In Satish Kumar Vs. Suinder Kumar, AIR 1970 (SC) 833, the Supreme Court of India quoted with approval its earlier decision in the case of Messers Uttam Singh Dugal and Co Vs. Union of India, Civil Appeal No. 162 of 1962 on the true construction of section 33 of the Act,-
“The true position in regard to the effect of an award is not in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in the respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, no action can be started on the original claim which had been the subject matter of the reference. As has been observed by Mookerjee, J in the case of Bhajahari Saha Bankkya Vs. Behary Lal Basak (1909) ILR 33 Cal 881 at page 898, ‘the award is, in fact, a final adjudication of a Court of the parties’ own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the face of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive in reality, an award possesses all the elements of vitality even though it has not been formally enforced and it may be relied upon in a litigation between the parties relating to the same subject-matter.’ This conclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a Court of last resort. Therefore, if the award, which has been pronounced between the parties, has in fact or can, in law be deemed to have dealt with the present dispute, the second reference would be incompetent. This position also has not been and cannot be seriously disputed.”

28. On the above authorities, we find that after coming into force of the Arbitration Act in 1940, any suit either for enforcement of an award or challenging the existence or validity of an arbitration agreement or an award is prohibited. Section 32 of the Act as quoted above leaves no manner of doubt that such prohibition is absolute. If anyone wants to challenge the existence, effect or validity of an arbitration agreement or award, he will have to take the proceedings in accordance with the provisions of the Act for no arbitration agreement nor award can be set aside, amended or modified otherwise than as provided in the Act itself. The Arbitration Act is a complete code for all purposes relating to arbitration. Section 30 provides for the grounds upon which an award could be set aside. Section 31 provides that an award may be filed in any Court having jurisdiction in the matter to which the reference relates. All questions regarding the validity, effect or existence of an award or an arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by such Court and no other Court will have any jurisdiction in the matter. And section 33 has laid down the procedure as to how all application is to be made for challenging the existence or validity of an arbitration agreement or an award and how the Court will decide the questions raised in such application.

29. It is also now well settled that a suit for declaration that a contract (even though it contains an arbitration agreement) is void or that there was no existence of any such contract is not barred under the provision of section 32 of the Act.

30. In view of above legal position, when we peruse the plaint we find that the declarations and perpetual injunctions sought for in the suit are based upon the challenge against the existence of arbitration agreement and the award made. None of declarations sought for is against the validity or existence of any of the contracts.

31. The cause of action for the suit is also stated to be with reference to the award as hereunder,-
“21. “the cause of action for this suit arose on 25-5-92 when the defendant No. 1 falsely accused the plaintiff to commit breach of the alleged contract, on 3-6-92 when the plaintiff received notice of arbitration from LCA, (defendant No. 3) and on 22-10-92 when the Arbitrators passed the award and on various dates when the defendant No. 1 claimed compensation under non-existing sic, on 3-10-94 when the solicitors of the plaintiff withdrew from the case in London High Court compelling the plaintiff not to continue with the proceeding and the said cause of action is continuing till date.”

32. In the plaint, it is also averred in detail that number of occasions, the plaintiff purchased cotton from defendant No. 1 through the defendant No. 2 under a number of contracts. All those contracts were discharged. In the second week of August, 1991, the Managing Director of the defendant No. 2 came to the office of the plaintiff, the Managing Director of the plaintiff, left quotations and samples. Thereafter, defendant No. 2 took back the sample and the test report. No further discussion took place.

33. The plaintiff received a telex dated 25-5-92 from the defendant No. 2 in which the plaintiff was accused of not honouring the contracts Nos. 7209, 8, 7229 and 7311. The plaintiff on 6-6-92 lied by telex denying the existence of any such contract. The plaintiff received a telex dated 3-6-92 followed by a letter from the defendant No. 3 informing it that defendant No. 2 had already referred the disputes and the plaintiff was accordingly asked to appoint its arbitrator for arbitration of the disputes arising out of Contract No. 7209 dated 25-8-9 1, Contract No. 7228 and Contract No. 7229 dated 26-8-91 and Contract No. 7311 dated 17-9-91. Finally, the plaintiff was requested to appoint an arbitrator by 17-6-92 or else the reference would be disposed of in accordance with LCA rules and arbitration. Plaintiff was also asked to submit written submissions. Whereupon, the plaintiff vide letter dated 22-7-92 sent a brief for the defendant No. 4, Member, Liverpool Association Ltd.

34. Thereafter, the plaintiff received an award made ex parte dated 22-10-92. As the award was invalid, ineffective and not binding upon the plaintiff, the plaintiff decided to challenge the legality of the award before the High Court of England. But the plaintiff was compelled not to continue with the proceeding.

35. Throughout the plaint, the plaintiff averred that there was no existence of any contract with the defendant No. 1 But we did not find any positive statement to the effect that there was no existence of any arbitration agreement. The positive case is that the plaintiff did not sign and/or execute any contract with defendant No. 1 or 2. The difference between the existence of a contract and existence of an agreement is quite, which we will deal with shortly. The plaintiff has also admitted that there was an award given by the defendant No. 3. On perusal of the plaint, we are convinced that in the suit, the plaintiff left no manner of doubt in challenging the existence of the arbitration agreement and the validity of the award made thereupon and sought relief accordingly against, the award, and award only. No relief is sought for in respect of any of the aforesaid contracts. Such a suit is clearly barred by the provision of section 32 of the Act.

36. On behalf of the plaintiff, we are asked to read the averments in the plaint only minus the prayers following the plaint for, according to them, the prayers or relief sought for in a suit are not the part of a plaint. In support, reliance is placed upon the case of Mecca Mills Vs. Bangladesh Shilpa Bank, 4 BLC 169. A Division Bench of this Division upon an application under Order 7 rule 11 of the Code for rejection of the plaint held,-
“But the cause title and the prayer portion does not come within the ambit of averments made in the plaint. The defect must be found out from the averments made in the plaint.”

37. Submission appears to be thought provoking. Let us see what the law says. Order 7 rule 1 has enumerated the particulars to be contained in a plaint. It reads as hereunder,
1. the plaint shall contain the following particulars:
a……………………………………………
b……………………………………………
c…………………………………………..
d……………………………………………
e……………………………………………
f. ………………………………………….
g. the relief which the plaintiff claims ;
h……………………………………; and
i.………………………………………….

38. Clause (g) of the above rules made it mandatory to include the relief in the plaint. A suit is generally known or categorised by the relief prayed for in the plaint. A Court gives a final adjudication upon the plaint by either granting or refusing such of the reliefs as is established in the trial of the suit. The prayer or relief sought for is therefore an important and integral part of the plaint. May be, the attention of the Division Bench to the above provisions was not drawn at all. Consequently, the above view might have been expressed. Such view being contrary to the express requirement of the law is, with due respect, not the correct statement of law.

39. Now, we shall see the law on execution of an arbitration agreement. The case as made out in the plaint is wholly based upon the premise that the plaintiff did never ever sign or execute any of the aforesaid contracts. The law on the proof or existence of an arbitration agreement is well settled. Though an arbitration agreement must be in writing but the parties need not sign it. What is necessary is that the terms must be reduced into writing and the fact that the parties had agreed should be established.

40. Relying on decisions in the case of Jugal Kishore Vs. Goolbai, AIR 1955 (SC) 812 and Union of India Vs. Rallia Ram, AIR 1963 (SC) 1685, the then Supreme Court of Pakistan held in the case of Salamat Khan Vs. QG Ahad, 30 DLR (SC) 271 that “Arbitration agreement” is a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not.

41. On acceptance of an offer, it also held that it is again well settled that an acceptance of an offer to constitute an agreement, what is necessary is that the offeree has expressed its acceptance and no writing is necessary. It may be oral or inferred from the conduct of the parties.

42. It also noticed the decision of The House of Lords in the case of Brohden Vs. Metropolitan Railway Company, 1877 (2) Appeal Cases, that the circumstances in the conduct of two parties may establish a binding contract between them, although the agreement, reduced into writing as a draft, has not been formally executed by either.

43. If a valid arbitration agreement is there, then there need not be a formal agreement executed by the parties, nor is it required of the parties to sign. The agreement must be in writing and accepted by the parties. No particular form is necessary, it may be inferred from a set or series of documents.

44. Lastly, we shall consider the submission that the provisions of section 32 of the Act do not cover a foreign award. Learned Counsels for the plaintiff pinned their whole thrust upon this point. What is a foreign award is not defined in the Act. The Act has defined arbitration agreement and award as hereunder:
Section 2(a) “arbitration agreement” means a written agreement to submit present or future difference to arbitration, whether an arbitrator is named therein or not;
(b) “award” means an arbitration award;
and
(c) “Court” means a Civil Court having jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit, but does not, except for the purpose of arbitration proceedings under section 21, include a Small Cause Court.

45. The Arbitration Act, 1940 extends to the whole of Bangladesh. But the above definition of an arbitration agreement has not excluded any agreement between a national of Bangladesh and a foreign national or corporation from its ambit. No such definition as foreign arbitration agreement is conceivable under the law of arbitration. Similarly, foreign award has not been defined. We find section 2(6) of the Code has defined ‘foreign judgment’ as means a judgment of a foreign Court’ and section 2(5) ‘foreign Court’ ‘means a Court situated beyond the limits of Bangladesh which has no authority in Bangladesh and is not established by the Government.’ We have seen earlier in the case of Serajuddin, a Division Bench of the Calcutta High Court attempted to give an idea about ‘foreign arbitration’ as hereunder-
“What, in the eye of law, is a foreign arbitration, is not very clear. But the decisions, in which the terms ‘foreign arbitration’ and ‘foreign award’ have been used, appear to have used the same in connection with arbitrations in foreign lands by foreign arbitrators, to which foreign law is applicable and in which a foreign national is involved.”

46. In modem practice, arbitration agreement between the parties of more than one country generally names the arbitrator, the forum and the law to be followed in arbitration. The impugned arbitration agreements are no exception. Before coming into force of the Arbitration Act, 2001, only law available for enforcement of a foreign award was the Arbitration (Protocol and Convention) Act, 1937. But a Division Bench of this Division held that law was not applicable in Bangladesh. The dispute was however never resolved.

47. Coming back to the real issue on the maintainability of the suit, we are clearly of the view that no suit shall lie on any ground whatsoever to challenge the existence, validity or effect of an arbitration agreement or award. An arbitration agreement or award can only be set aside, modified or amended in accordance with the law of arbitration. The principles behind such bar appear to be universal. Facts of the case do not suggest that the plaintiff is not aware of the forum and the law to pursue. In October 1992, the plaintiff lodged a notice of appeal against the award before the appellate forum of defendant No. 3. On 12-1-93 it also took a civil action against the award in 1993 Folio No. 41 before the High Court of Justice in England. Each of the actions was the most appropriate in the facts of the case but both of them were allowed by the plaintiff to be concluded against them. Now, if the plaintiff can challenge the validity of the award or the existence of the arbitration agreement in the municipal forum, then we find no absence of intention of the legislature behind the municipal law on arbitration to take care of such a suit.

48. The Bar addressed us that the international endeavours are also very alive under the stewardship of the UNO for codification of a uniform arbitration law. In this era of globalisation, there is no alternative to such a uniform and universal law for the smooth transaction of international trade and commerce. Our law on arbitration has already been updated by the Arbitration Act 2001. In this Act, there are provisions for enforcement or recognition of a foreign award.

49. Besides, the provisions of section 14 of the Code enjoin upon a Court in Bangladesh to presume that foreign judgment was pronounced by a court of competent jurisdiction unless the contrary appears. However, such presumption may be rebutted on proof of want of jurisdiction or may not be conclusive on any matter within the exception of section 13 of the Code. Certified copy of the judgment of the High Court of Justice in England in 1993 Folio No. 41 was annexed. We cannot shut our eyes to the conclusions as arrived at by such Court of competent jurisdiction. The decision is though ex parte yet is no doubt binding upon the plaintiff until set aside in accordance with law. The High Court in England has given the following adjudication and declarations:
i. The plaintiffs were parties to contracts No. 7209 dated 25-8-91, Nos. 7228 and 7229 dated 26-8-91 and No. 7311 dated 17-9-91;
ii. Each of the contracts contained a written agreement between the plaintiffs and the defendants to resolve any disputes arising thereunder by arbitration in accordance with the Rules of the Liverpool Cotton Association Limited (defendant No. 3 herein); and
iii. The Arbitration Award dated 22-10-92 was a valid Award which was binding on the plaintiffs.

50. The above declarations were given by the High Court of England on the cause brought by the plaintiff before it. The plaintiff has not yet challenged the decision. Not even in the instant suit. Even if we can avoid the legal effect of the decision of the High Court of England for the time being but we cannot allow the suit to continue in view of the bar of section 32 of the Act. The suit has already wasted more than six years’ time, toil and money of all the parties including the Court.

51. In the view of the matter that we have taken, the impugned order cannot be sustained in law, which has no doubt resulted in failure of justice. We must allow the application of the defendant Nos. 1 and 2 for rejection of plaint as we find the suit is barred by the provisions of section 32 of the Act and the plaint is therefore liable to be rejected under Order 7 rule 11 clause (d) of the Code.

52. In the result, the Rule in Civil Revision No. 1939 of 1995 is made absolute while other Rules are discharged. No order as to cost. The plaint of Title Suit No. 139 of 1994 of 5th Court of Subordinate Judge at Dhaka is hereby rejected. Order of stay as granted at the time of issue of the Rule is recalled and vacated.
Plaint of the suit having been rejected, no separate order needs to be passed on the application of defendant No. 3 for striking out its name.
Ed.

Phoenix Leasing Ltd and others Vs. Bangladesh Bank and others, 51 DLR (AD) (1999) 258

Case No: Civil Petition for Leave to Appeal No. 605 of 1999

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Dr. M. Zahir,,

Citation: 51 DLR (AD) (1999) 258

Case Year: 1999

Appellant: Phoenix Leasing Ltd.

Respondent: Bangladesh Bank

Subject: Company Matter,

Delivery Date: 1999-7-12

Supreme Court
Appellate Division
(Civil)

Present:
Mustafa Kamal CJ
Bimalendu Bikash Roy Choudhury J
AMM Rahman J
Mahmudul Amin Choudhury J

Phoenix Leasing Ltd and others
………………… Appellant
Vs.
Bangladesh Bank and others
……………………..respondents

Judgment
July 12, 1999.

The Financial Institution Act, 1993
Section 48
i) Section 25(3) is not a provision which is concerned with the individual or representative character of a director. Petitioner Nos. 2 and 5 may be the nominee-directors of Appollo Steel Mills Ltd in the Board of Directors of the petitioner company. But they are also directors of the City Bank Limited and therefore their directorship is hit by the omnibus provision of section 25(3)………...(18)
ii) The petitioner company was formed knowingly and voluntarily under the restrictive provisions of the said Act. It cannot now complain that its freedom of association has been restricted by section 25(3)……..(20)
iii) Section 25(3) does not on terms make any distinction between directors who represent their own share- holding individually and nominee-directors who represent their companies’ share holdings. It applies to all, whether they are individuals or nominees of a bank, insurance or financial institutions………(22)

Lawyers Involved:
Dr. M. Zahir Senior Advocate, instructed by Sharifuddin Chaklader Advocate-on-Record —For the Petitioners.
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-Record —For the Respondents.

Civil Petition for Leave to Appeal No. 605 of 1999.
(From the Judgment and order dated 11-5-1999 passed by the High Court Division in Writ Petition No. 4992 of 1997).

JUDGMENT

Mustafa Kamal CJ.

1. The writ-petitioners of Writ Petition No. 4992 of 1997 have preferred this petition for Leave to Appeal from the judgment and order dated 11-5-99 passed by a Division Bench of the High Court Division discharging the Rule Nisi with costs.

2. Petitioner No.1, Phoenix Leasing Limited, is a lease finance company registered under the Companies Act to act as a financial institution licensed by the Bangladesh Bank on 9-5-95 under section 4 (1) of the Arthik Protisthan Ain (Financial Institutions Act, 1993). Petitioner Nos. 2-6 are directors of the petitioner Company. After obtaining licence, the petitioner company by letter dated 19-7-95 sought the approval of Bangladesh Bank for inclusion of petitioner Nos. 3 and 4 as nominee -directors of Phoenix Insurance Company Limited and of petitioner Nos. 2 and 5 as nominee- directors of Appollo. Steel Mills Limited (Annexure Al). By letter dated 24-8-95 (Annexure-B) Bangladesh Bank wanted to know whether the representatives of Appollo Steel Mills Limited, i.e. petitioner Nos. 2 and 5 are the directors of any Bank or Insurance Company. By letter, dated 27-8-95 petitioners No.1 informed the Bangladesh Bank that petitioner Nos. 2 and 5 are directors of the City Bank Limited. By letter dated 6-9-95 (Annexure-C) Bangladesh Bank informed petitioner No.1 that the matter of approval is under consideration of the Bank. By letter dated 25-10-95, Bangladesh Bank wanted to know the full particulars of a11 the proposed nominee-directors. The matter rested there for the moment.

3. Section 25(3) of the Arthik Protisthan Ain, 1993 provides as follows:

২৫(৩) আপাততঃ বলবত অন্য কোন আইনে জাহা কিছুই থাকুক না কেন, অন্য কোন আর্থিক প্রতিষ্ঠান, ব্যাংক কোম্পানি বা বীমা কোম্পানির পরিচালক আছেন এমন কোন ব্যক্তি কোন আর্থিক প্রতিষ্ঠানের পরিচালক হইবার যোগ্য হইবেন না।

It is, however, provided in section 48 of the said Act as follows:

৪৮। কতিপয় ক্ষেত্রে অব্যাহতি প্রদানের ক্ষমতা। বাংলাদেশ ব্যাংক, সরকারের সহিত পরামর্শক্রমে, সরকারি গেজেটে প্রজ্ঞাপন দ্বারা ঘোষণা করিতে পারে যে, এই আইনের সকল বা কোন বিশেষ বিধান, কোন নির্দিষ্ট আর্থিক প্রতিষ্ঠান বা সকল আর্থিক প্রতিষ্ঠানের ক্ষেত্রে সাধারনভাবে বা প্রজ্ঞাপনে নির্ধারিত কোন মেয়াদকালে প্রযোজ্য হইবে না।

On 27-8-95, Bangladesh Bank by a Gazette notification provided as follows (Annexure-E): নং বিসিডি (নন-ব্যাংকিং) ১০৫১/প্রজ্ঞা/৩—আর্থিক প্রতিষ্ঠান আইন, ১৯৯৩ ইং (১৯৯৩ ইং সনের ২৭ নং আইন)- আর ২৫ (৩) ধারার বিধান অনুযায়ী অন্য কোন আর্থিক প্রতিষ্ঠান, ব্যাংক, বীমা কোম্পানির পরিচালক আসেন এমন কোন ব্যক্তি কোন আর্থিক প্রতিষ্ঠানের পরিচালক হইতে পারবেন না। এক্ষণে উক্ত আইনের ৪৮ ধারায় প্রদত্ত খমতাবলে বাংলাদেশ ব্যাংক কর্তৃক সরকারের সাথে পরামর্শক্রমে কেবল মাত্র সরকার কর্তৃক মনোনীত কোন পরিচালক অথবা কোন ব্যাংক, বীমা বা আর্থিক প্রতিষ্ঠানের প্রতিনিধিত্বকারি কোন পরিচালকের ক্ষেত্রে আইনের উপরুক্ত বিধান হইতে উক্ত আইনে সংজ্ঞায়িত আর্থিক প্রতিষ্ঠানসমূহকে অব্যাহতি প্রদান করা হইল।

4. By letter dated 13-3-96 (Annexure-F) Bangladesh Bank wrote to petitioner No.1 stating that Bangladesh Bank has no objection to the inclusion of Petitioners Nos. 2-5 as nominee-directors of their respective companies to the Board of Petitioner No.1.Then came a notification dated 14-12-96 (Annexure-G by Bangladesh Bank as follows : নং আঃ প্রঃ (নন-ব্যাংকিং) ১০৫১/প্রজ্ঞা/৩—আর্থিক প্রতিষ্ঠান আইন, ১৯৯৩ ইং (১৯৯৩ ইং এর ২৭ নং আইন)-এর ২৫ (৩) ধারার বিধান হইতে বাংলাদেশ ব্যাংক কর্তৃক সরকারের সহিত পরামর্শক্রমে কেবলমাত্র সরকার কর্তৃক মনোনীত কোন পরিচালক অথবা কোন ব্যাংক, বীমা বা আর্থিক প্রতিষ্ঠানের প্রতিনিধিত্বকারী কোন পরিচালকের ক্ষেত্রে আইনের উপরুক্ত বিধান হইতে উক্ত আইনে সংজ্ঞায়িত আর্থিক প্রতিষ্ঠানসমূহ অব্যাহতি প্রদানের যে আদেশ ১৪ই জৈষ্ঠ্য ১৪০২ বাং/২৮ শে মে ১৯৯৫ ইং তারিখে নং বিসিডি (নন-ব্যাংকিং) ১০৫১/প্রজ্ঞা/৩ নম্বর প্রজ্ঞাপন মারফত জারি করা হইয়াছিল, এক্ষণে উক্ত আইনের ৪৮ ধারার প্রদত্ত ক্ষমতাবলে বাংলাদেশ ব্যাংক সরকারের সহিত পরামর্শক্রমে ঐ আদেশ অবিলম্বে প্রত্যাহার করিল।

5. The said notification dated 14-12-96 was communicated to petitioner No.1 by Bangladesh Bank by a circular dated 1-2-97 (Annexure-H). By a notice, dated 4-2-97 petitioner No.1 was directed to intimate within 7 days as to whether there was any director of any Bank, Insurance or Financial institution in their Board of Directors in violation of section 25(3) of the said Act.

6. The writ petitioners filed the instant writ petition challenging the vires of section 25(3) of the said Act and the notification of withdrawal of the exemption of restriction imposed by section 25(3) of the said Act dated 14-12-96 (Annexure-G) under section 48 of the said Act and also the directive dated 26-4-97 (Annexure-L) issued by the Bangladesh Bank complaining violation of section 25(3) of the said Act by the petitioner-company.

7. In their affidavit-in-opposition respondent Nos. 1-3 stated that relaxation of section 25(3) was made by notification dated 27-8-95 (Annexure-E) but the relaxation having been found discriminatory was repealed restoring the restriction imposed by section 25(3) of the said Act. The impugned letter dated 26-4-97 was issued for, compliance with section 25 (3) of the said Act.

8. The High Court Division found that there was no violation of fundamental rights of the petitioners as urged by them.

9. Dr. M. Zahir, learned Counsel for the petitioners, submits first, that the Bangladesh Bank having allowed petitioner Nos. 2-5 expressly to be in the Board of Director of Petitioner No. 1 by letter dated 13-3-96 (Annexure-F), it cannot be unilateral action withdraw the exemption of section 25(3) and thereby unseat them as directors. The power of granting exemption does not carry with it the power of withdrawal.

10. Dr. Rafiqur Rahman, learned Counsel for respondent No. 1 entering Caveat, submits that before the Gazette notification dated 27-8-95 granting exemption under section 48 of the said Act, petitioner Nos. 2-5 were never given any permission by Bangladesh Bank to be included in the Board of Directors of the petitioner company. The writ petition itself reveals that the matter rested with the letter dated 25-10-95 (Annexure-D) written by Bangladesh Bank to the petitioner company asking for full particulars of petitioner Nos. 2-5. Hence, there cannot be any question of allowing petitioner Nos. 2-5 to be in the Board of Directors of the petitioner company before 27-8-95. On perusal of the writ petition, we find that the submissions of Dr. Rahman are correct.

11. An express permission was given by the letter of the Bangladesh Bank dated 13-3-96 (Annexure-F) but, Dr. Rahman submits, that letter was a surplusage because petitioner Nos. 2-5 already came under the umbrella of relaxation made by the Gazette notification dated 27-8-95 (Annexure-E). We also find substance in this submission of Dr. Rahman.

12. As to the question whether after making an exemption under section 48 of the said Act the Bangladesh Bank can withdraw it, Dr. Rafiqur Rahman submits that exemption is in the nature of an exception and the exemption-giving authority can always withdraw it. Although Dr. M Zahir is very emphatic in his submission that an exemption once given under section 48 creates a vested right and cannot be withdrawn later we agree with the submission of Dr Rafiqur Rahman that an exercise of discretion under section 48 is in the nature of an exercise of an enabling power which can be withdrawn also in the discretion of the authority. It creates no vested right. We, therefore, do not find any substance in the first contention of Dr M Zahir.

13. Dr. Zahir next submits that once an exemption is made under section 48 of the said Act the nominee-directors become eligible to act as directors of the petitioner company and section 25(3) does no longer apply to them. There being no change in the factual circumstances the same set of directors who were considered eligible for appointment as directors cannot be subsequently found ineligible to continue as directors.

14. It is not necessary for the exemption- giving authority to narrate or describe what are the changes in the factual circumstances necessitating the withdrawal of exemption. Once the power of relaxation is, there under section 48, it is innate in the said power to withdraw the same as and when the exemption making authority thinks fit to do so. Hence, we do not find that there is much validity in this submission either.

15. The third submission of Dr. Zahir is that the withdrawal of exemption by notification dated 14- 12-96 is prospective and not retrospective. It will not affect those who are already continuing as nominee-directors like petitioner Nos. 2-5. Those who are already in cannot be ousted.

16. This interpretation of the impugned notification dated 14-12-96 is not acceptable on the face of it. Section 25(3) of the said Act is a barring provision making certain persons ineligible for being appointed as directors of a financial institution Until there is an exercise of power of exemption under section 48, the bar remains as a permanent provision in the said Act. When an exemption is given the bar under section 25(3) is relaxed; but when the exemption is withdrawn the legal consequence is the revival of the permanent bar under section 25(3), which will affect the existing nominee-directors including petitioner Nos. 2-5. The question of prospectivity and retrospectively does not arise in these circumstances. It is a case of certain section of an Act remaining in abeyance as if in a state of hibernation because of an exemption granted and the revival of it as soon as the exemption is withdrawn.

17. Dr. Zahir submits next that petitioner Nos. 2 and 5 are nominees of Appollo Steel Mills Limited d not of any bank, insurance or financial institution. It was wholly illegal to unseat them because they did not sit in the Board of the petitioner company as a nominee-directors of any bank, insurance or financial institution.

18. Section 25(3) is not a provision which is concerned with the individual or representative character of a director. Petitioner Nos. 2 and 5 may be the nominee-directors of Appollo Steel Mills Ltd. in the Board of Directors of the petitioner company. But they are also directors of the City Bank Limited and therefore their directorship is hit by the omnibus provision of section 25(3).

19. Dr Zahir then submits that under Article 38 of the Constitution every citizen shall have the right to form an association or union, subject to any reasonable restrictions imposed by law in the interest of morality or public order. The petitioner company was formed by the citizens of this country in exercise of their fundamental right of freedom of association which includes the right to continue the association with its existing members. There is no nexus between the restriction imposed by section 25(3) and morality or public order. Therefore, section 25(3) is ultra virus Article 38 of the Constitution.

20. The fallacy of the submission is that the petitioner company was formed in 1995 under the said Act with all the restriction contained therein. It was also not formed with petitioner Nos. 2-5 as nominee-directors. The petitioner-company was still seeking the permission of Bangladesh Bank to include them in its Board of Directors. When the petitioner company was not formed at all with petitioner Nos. 2-5 as its directors, there is no question of acquiring any fundamental right to continue with petitioner Nos. 2-5 as its directors. Besides the petitioner-company was formed in 1995 after the Arthik Prothisthan Ain, 1993 was enacted on 30-9-93. It was already governed by the restrictions imposed by section 25(3) of the said Act. The petitioner company was formed knowingly and voluntarily under the restrictive provisions of the said Act. It cannot now complain that its freedom of association has been restricted by section 25(3).

21. Lastly, Dr. Zahir submits that section 25(3) of the said Act refers only to those individuals who are directors of a bank, insurance or financial institution in their individual capacity, and personally holding shares in the financial institution in question. It does not refer to directors who are nominee-directors of a corporate body. The nominee-directors do not represent themselves or their own personal shareholdings in the petitioner company. They represent their principal organisations and the share holdings of their principal companies. As such, he submits, section 25(3) ought to be interpreted to mean directors who are individuals and not nominee- directors.

22. The argument does not hold good. Section 25(3) does not on terms make any distinction between directors who represent their own share-holding individually and nominee-directors who represent their companies’ share holdings. It applies to all, whether they are individuals or nominees of a bank, insurance or financial institutions.

Thus all the submissions of Dr. Zahir fail and the petition is dismissed.

Ed.

PHP Float glass Industries Vs. Commissioner of Customs and others, 1 LNJ (2012) 625

Case No: Writ Petition No. 3063 of 2007

Judge: Md. Akram Hossain Chowdhury,

Court: High Court Division,,

Advocate: Mrs. Israt Jahan,,

Citation: 1 LNJ (2012) 625

Case Year: 2012

Appellant: PHP Float glass Industries

Respondent: Commissioner of Customs and others

Delivery Date: 2012-05-30

HIGH COURT DIVISION
(Special Original Jurisdiction)

Syed Refat Ahmed, J.
And
Md. Akram Hossan Chowdhury, J.

Judgment
30.05.2012

PHP Float glass Industries Ltd.

...Petitioner.

Vs.

Commissioner of Customs, Excise and VAT Commissionerate, Chittagong and others.

...Respondents

Constitution of Bangladesh, 1972
Article 102(2)(a)(i)and(ii)
Value Added Tax Act (XXII of 1991)
Section 42(1)(4)
Value Added Tax Rules, 1991
Rule 3(7)
When the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007. The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

Value Added Tax Act (XXII of 1991)
Sections 42(1) and 43(1)(3)
When an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power.

Chittagong Cement Clinker Grinding Co. Ltd. Vs. Chairman, Board of Revenue and others, 60 DLR 287, Commissioner of Custom, Excise and VAT Vs. Commissioner of Customs, Excise and VAT, 8 BLC 329 and M.A. Hai Md. Wajed Ali Miah and Md. Moslem Vs. Trading Corporation Bangladesh, 40 DLR (AD) 206 ref.

Mr. M. A. Hannan

---For the petitioner.

Ms. Israt Jahan, A.A.G

---For the Respondents

Writ Petition No. 3063 of 2007

JUDGMENT

Md. Akram Hossain Chowdhury, J:

          On an application under article 102 of the constitution this rule nisi was issued calling upon the respondents to show cause as to why the impugned order dated 18.3.2007 passed by the Respondent No. 3 demanding Tk. 87,14,891.68 as VAT alleging to be less paid during the period of 21.9.2006 to 28.02.2007 and adjusting the said amount by deduction in the current account register and stopping the supply of the goods till having positive balance in the said register (Annexure-G) should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order of orders passed as to this Court may seem fit and proper.

2.     The facts in the writ petition in short are that the petitioner, a Private Limited Company represented by its Managing Director, established a factory for manufacturing Float Glass by using silica sand, the main raw material, as available in the country. The petitioner company being a VAT registered entity, as per the requirement of rule 3(1) of the Value Added Tax Rules-1991, (Rules) submitted a price declaration of its product vide Mushak-I for payment of VAT to the concerned Divisional Officer, respondent No.2, the Assistant Commissioner, Customs Excise and VAT Division, Feni, who by his order dated 13.08.2005 arbitrarily altered the petitioners declared value by purportedly enhancing the said price of float Glass at Tk. 17885/- to Tk. 23500/- per metric ton.

3.     Feeling aggrieved by the said order of respondent No.2 the petitioner filed a review application on 28.08.2005, invoking the provision of Rule 3(7), before the respondent No. 1, Commissioner, Custom, Excise and VAT Commission-rate, Agrabad, Chittagong. On hearing the said review application the respondent No. 1 passed an order fixing the price of Float Glass at Tk. 21,000/- per Metric Ton and the same was communicated to the petitioner vide Nathi No. ৪র্থ/এ(১২)৩২০/মূসক/পি এইচপি/গ্লাস/০৩/৮৪২৪-২৬ dated 03.9.2005. Accepting the said approved price the petitioner continued its business sincerely.

4.     In the meantime the price of the raw material being reduced to a considerable amount for which the petitioner submitted a fresh price declaration on 21.9.2006 as per Musak-I and the respondent No. 2 again gave an arbitrary order of approval and altered the said price declaration purportedly enhancing the value of each item vide Nathi No. ৪র্থ/এ (১২)২৪/মূসক/পিএইচপি/ফ্লোটগ্লাস/০৬/৩০৭৪ dated 08.10.2006.

5.     Against such backdrop the petitioner filed a review application before the Respondent No. 1, Commissioner of Customs, Excise and VAT Commissionrate, Agrabad, Chittagong, on 22.10.2006 and submitted a written statement in support of his price declaration along with all relevant documents on 09.11.2006. The respondent No. 1 upon perusal of the same passed an order on 15.11.2006 under Rule 3(7) of the Rules, fixing the value of Transparent glass at the rate of Tk. 20,500/- and coloured glass at Tk. 25,000/- per Metric Ton and the said order was communicated to the petitioner vide Nathi No. ৪র্থ/এ(১২)৩২০/মূসক/ পিএইচপি/গ্লাস /০৫/৫৬২৯-৩১ dated 15.11.2006.

6.     Being aggrieved by and dissatisfied with the said order dated 15.11.2006 the petitioner preferred an appeal on 03.12.2006 before the respondent No. 5, the Customs, Excise and VAT Appellate Tribunal, under section 42 of the VAT Act-1991 (Act). The said appeal was registered as Appeal No. CEVT/Case (VAT) 234/2006 which is pending for hearing.

7.     It is alleged that during pendency of the said appeal all on a sudden on 18.03.2007, the respondent No. 3, Superintendent, Custom, Excise and VAT Sitakunda Circle, Chittagong, most illegally and arbitrarily passed the impugned order in the current register of the petitioner demanding Tk. 87, 14, 891.68 allegedly less paid VAT during the period of 21.9.2006 to 28.02.2007 and adjusted the same by deducting in the current account register and stopped the supply of goods till having positive balance in the said register. Hence the petitioner, finding no other alternative and efficacious remedy against the aforesaid mala fide action of the respondent No.3, was compelled to file this writ petition and obtained the instant rule.

8.     No one for the respondents came forward to oppose the rule by filing any affidavit in opposition.

9.     Mr. M. A. Hannan, the learned Advocate appearing on behalf of the petitioner submits that the respondent No. 3 most arbitrarily and illegally issued the impugned order without serving any notice under Section 55(1) of the Act leaving the petitioner without any opportunity to defend his case. Therefore, violating the principle of natural justice the respondent No. 3 issued the impugned order which is to be declared without lawful authority. Mr. Hannan, further submits that the appeal under section 42(1) of the Act was filed by the petitioner against the enhanced price approval order of commissioner, from which the present issue of VAT evasion and demand arose. The said appeal is still pending for disposal before the respondent No. 5, though there is specific provision of nine months time limit for disposal the appeal under Section-42(4) of the Act. But during pendency of the said appeal the impugned order of demand and adjustment thereto in the current account register of the petitioner was made purportedly with a mala fide intention. The petitioner informed the respondent No. 3 that the order was passed over an issue as in part and parcel to the said appeal and also constitutes a Sub judice matter. That notwithstanding the respondent No. 3 without considering such aspect and not applying its judicial mind issued the impugned order which the petitioner submits is now liable to be set aside and to be declared illegal and without any lawful authority. The learned Advocate for the petitioner in support of his submissions cited the decisions in Chittagong Cement Clinker Grinding Co. Ltd. –Vs- Chairman National Board of Revenue and others, reported in 60DLR-287, and Commissioner of Customs, Excise and VAT –Vs- Customs Excise and VAT Appellate Tribunal and others, reported in 8 BLC(2003)-329.

10.   Referring to the Chittagong Cement Clinker case, reported in 60 DLR, Mr. Hannan submits that in the said Judgment there lordships observation was that “When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer”. Accordingly, Mr. Hannan argues that the respondent No.1, the Commissioner, without considering such legal prescription, the rationale of the law and the base value of similar products as were in particular before him by glaring failure of proper adjudication of law passed the order apparently beyond the stipulated period of 15 days as provided by rule-3(7) under the Rules. Mr. Hannan argues, therefore, that the adjudication order itself is illegal and void.

11.   The learned Advocate for the petitioner in course of hearing drew our attention to the fact that the appeal is still pending before the Tribunal for disposal. In fact, there is a provision for disposal of appeal stipulating the period of 9 months, failing which the appeal is deemed to be allowed as per provision of Section 42(4) of the Act. Though no steps have yet been taken for a due disposal of the appeal, in the meantime the stipulated period has long since expired. In such circumstances he submits, that given there is no order of this Court staying the appeal proceedings, therefore, the appeal pending before the Tribunal is deemed to have been allowed due to expiration of 9 months stipulated period in disposal of the appeal as per provision of Section 42(4) of the Act.

12.   At this stage, on our query, the learned Advocate for the petitioner by filing a supplementary affidavit brought into our notice that since the instant writ petition is pending, the tribunal is awaiting further order(s) of this Court before proceeding any further with the appeal hearing.

13.   In respect of the impugned order passed by the respondent No.3, demanding the less paid amount of VAT and deduction of the amount in the current register even, when an appeal is pending on the same issue, Mr. Hannan relied upon the case of Commissioner of Customs -Vs- Appellate Tribunal reported in 8BLC(2003),329 wherein it was noted in a similar situation that when an appeal is filed under Section 42 of the Act the order appealed against is deemed automatically to be stayed. This is because purely as an administrative measure that order is automatically stayed by the department concerned and no steps are, therefore, taken to implement the same during the pendency of the appeal before the appellate forum. This, therefore, necessarily obviates the need for this Court to pass an     ad interim order staying the operation of the impugned order. So far so good. Since the appeal is pending on a demand of VAT assessed upon relying on an order of the respondent No.1, Commissioner, which is under consideration as the subject matter of the appeal, the respondent No. 3 being a subordinate authority could not pass the impugned order in a sub judice matter. In such circumstances, Mr. Hannan submits that the order passed by the respondent No. 3 is to be declared without lawful authority and is of no legal effect.

14.   Ms. Israt Jahan, the learned Assistant Attorney General (A.A.G) though conceding the facts of the case as assured by the petitioner, raises the question whether the petitioner can invoke the writ jurisdiction when an alternative remedy lies against the same under Sub Rule 7 of Rule 3 of the Rules. In reply Mr. Hannan has referred to a judgment reported in 40 DLR(AD)-206 in the case of M.A. Hai, Md. Wazed Ali Miah & Md. Moslem –Vs- Trading Corporation of Bangladesh. Mr. Hannan submits by reference to that judgment that where an interpretation of law or a question of law is involved, such a situation requires for a decision by way of invoking writ jurisdiction. This Court in wholly subscribing to that view reflected in the above decision, finds that the instant writ petition is very much maintainable.

15.   Heard the learned Advocates for both side at length and perused the writ petition along with the Annexures. The document in Annexure-D series to the writ petition are the price declaration along with Musak-1 Form filed under rule 3, sub rule 2 of the Rules explaining particularly that the price of the manufacturing materials being reduced and the price declaration of the similar items of M/s. Nasir Glass Industries being accepted by the VAT authority at a lower rate, the petitioner’s price declaration is to be accepted. Upon receipt of the petitioner’s said price declaration, the respondent No. 2 vide its order (Annexure-D1) dated 08.10.2006 re-fixed the price of the petitioner’s Float Glass and Coloured Glass at a higher rate as compared to M/s. Nasir Glass Industries.

16.   Feeling aggrieved by the said order of respondent No.2 dated 08.10.2006 the petitioner filed a review petition vide annexure-E before the respondent No.1, Commissioner of Customs, Excise and VAT Commissionrate, for a reconsideration of the matter. The review application was filed on 22.10.2006 and the respondent No. 1 by its order dated 15.11.2006 re-fixed the price of the base value of Transparent Float Glass at the rate of Tk. 20,500/- and coloured Glass at TK. 25000/- per Metric ton. The said order was passed under sub Rule 7 of Rule 3 of the Rules. It is noted that the proviso of sub rule 7 of Rule-3 provides that the Commissioner, upon receiving the application, fails to make a decision within 15 days the application shall be deemed to have been allowed. That order passed by the respondent No.1, seems to have been made beyond such stipulated time.

17.   Being aggrieved by and dissatisfied with the said order of the respondent No.1 the petitioner preferred an appeal, under section 42 (i)(Kha) of the Act, before the Customs, Excise and VAT Appellate Tribunal, Dhaka, who upon receipt of the same registered it as Appeal No. CEVT/ Case (VAT) 234/ 2006. The said appeal was filed on 03.12.2006 and admittedly the appeal is still pending for disposal. But all on a sudden on 18.3.2007 the respondent No. 3, Superintendent, Customs, Excise and VAT, Sitakunda Circle, Chittagong, issued the impugned order (annexure-G) on 18.03.2007 thus:

১৮.৩.২০০৭ প্রতিষ্ঠান কর্তৃপক্ষ ২১.৯.২০০৬ ইং তারিখে তাদের উৎপাদিত পন্য স্বচ্ছ ও রঙিন ফ্লোট গ্লাস সীট এর মূল্য ঘোষনা দাখিল করেন। সহকারী কমিশনার, কাষ্টমস এক্সাইজ ও ভ্যাট, ফেনী বিভাগ, ফেনী এর পত্র নথি নং- ৪র্থ/এ(১২)মূসক/পিএইচপি ফ্লোট গ্লাস/০৬/ ৩০৭৪ তাং ০৮/১০/২০০৬ এর মাধ্যমে অনুমোদিত মূল্যে প্রতিষ্ঠান কর্তৃপক্ষ সন্তুষ্ট না হয়ে কমিশনার কাষ্টমস, এক্সাইজ ও ভ্যাট চট্টগ্রামের এর বরাবরে আপিল আবেদন দায়ের করায় কমিশনার মহোদয় তার আদেশ পৃষ্ঠাঙ্খন নথি নং- ৪র্থ/এ(১২) ৩২০ মূসক/পিএইচপি ফ্লোট গ্লাস/০৫/৫৬২৯-৩১ তাং ১৫/১১/২০০৬ এর মাধ্যমে প্রতি মেঃ টঃ স্বচ্ছ গ্লাস এর মূল্য =২০,৫০০/- (বিশ হাজার পাঁচশত) টাকা ও প্রতি মেঃ টঃ রঙ্গিন গ্লাসের মূল্য ২৫,০০০/-(পঁচিশ হাজার) টাকা নির্ধারণ করে দেন। কিন্তু তারা অনুমোদিত মূল্য অপেক্ষা কম মূল্যে পন্য সরবরাহ করায় ২৮.০২.২০০৭ইং তারিখ পর্যন্ত সময়ে প্রতিষ্ঠান কর্তৃপক্ষ মোট =৮৭,১৪,৮৯১.৬৮ টাকা মূসক কম পরিশোধ করায় উক্ত টাকা প্রদেয় কলামে এন্ট্রি দিয়ে সমন্বয় করা হলো এবং কমিশার মহোদয়ের অনুমোদিত মূল্যে পন্য সরবরাহ করার অনুরোধ করা হলো। উক্ত টাকা সমন্বয়ের পরিপ্রেক্ষিতে চলতি হিসাবে ঋণাত্বক সিহতি হওয়ায় পর্যাপ্ত টাকা ট্রেজারী চালানের মাধামে জমা দিয়ে পন্য সরবরাহের অনুরোধ করা হলো। স্বাক্ষর অস্পষ্ট এম আর নাইম সুপারিনটেনডেন্ট কাষ্টমস, এক্সাইজ ও ভ্যাট সীতাকুন্ড সার্কেল, চট্টগ্রাম সার্কেল, চট্টগ্রাম।

The aforesaid order of respondent No.3, was passed in apparent disregard of the fact of the appeal already filed.

18. In view of the above facts, since the appeal is pending before the Appellate Tribunal and the proceedings of the appeal was not challenged the said proceedings of appeal has not been stayed by this writ petition. In fact, the order passed by the respondent No.3 was impugned in this writ petition. Now it is to be decided whether the order as impugned was passed lawfully or not.

19. Notably, here in deciding the instant case firstly we may examine the decision referred by the learned Advocate for the petitioner, the case of “Chittagong Cement Clinker =VS= NBR” reported in 60 DLR-287, the ratio in which was that- “Sub-section(2) of Section-5 entitles a producer or manufacturer to sell its goods at a price/consideration which he declares and neither the National Board of Revenue nor the Government is empowered any provision of the vat Act in any way to fix any flat or minimum value for any goods.” Furthermore, as already noted earlier, in deciding the case their Lordships also aptly held therefore-

“When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer”

20.   Relying on the above Judicial view Mr. Hannan’s submission is that as per requirement of the law the process for approval of declaration of base value upon a consideration of the detailed breakdown of cost provided by the petitioner in Musak-1 Form, as in the present instance, obviates the necessity of the respondents to revisit the same, let alone reject such value declaration, that too, without considering the petitioner’s objections at the time of re-fixing such value.

21.   The same view also been reiterated by this Court in a judgment passed in writ petition No. 10540 of 2006, the case of “Aman Cement Mills Limited –Vs- Customs Excise and VAT Appellate Tribunal, Dhaka and others”. In the above decisions it is mostly decided that the manufacturer is entitled at his consideration to fix a base value and the authority concerned has to approve the said price without affecting the interest of the manufacturer.

22.   In the instant case we could not overlook whether the respondent No. 1 has considered this aspect in deciding the review application. The order of the respondent No. 1 has been challenged by filing an appeal before the Tribunal, which is still pending for disposal. It is incumbent upon the Tribunal to conclusively decide the matter upon a due and fair determination of the issues raised in appeal upon the petitioner being heard. During pendency of the appeal the respondent No. 3, Superintendent, Customs, Excise & Vat, Sitakunda Circle, Chittagong, overwhelmingly going beyond its jurisdiction passed the impugned order on a sub judice matter, demanding the amount as less paid VAT and deducted the same in his own way to the current account register of the petitioner and stopped the supply of the petitioner’s goods till having positive balance in the said register. The legality of the said order in these facts is found to be untenable by this Court. This Court has had regard to the case of Commissioner of Customs, Excise and VAT –Vs- Customs, Excise and VAT Appellate Tribunal and others, reported in 8BLC-329, where in a similar situation their Lordships in deciding on a dispute whether the Tribunal can pass an ad interim order of stay in an appeal filed before the Tribunal and awaiting for disposal requested Mr. Hasan Ariff, the then Attorney General and Mr. Mahmudul Islam, the former Attorney General as amici curiae to address the matter. Mr. Hasan Ariff in his submission categorically stated “on perusal of the provision as contained in section 42(2) of the VAT Act it is clear and obvious that as soon as an appeal is filed the impugned order is automatically stayed.”

23.   Mr. Mahmudul Islam in his submission pointed out that- “as an administrative measure department concerned automatically stays the order appealed against and does not take any step to implement the same during the pendency of the appeal before Appellate forum and therefore, there is no necessity of passing an ad-interim order for staying the operation of the impugned order”

24.   In the said case their Lordships observed accordingly “In interpreting Sub-section(2) of Section 42 all the learned Advocates agreed that on filing of the appeal with the necessary deposit of a portion of the disputed amount, the impugned order is automatically stayed and there is no scope for the VAT officials to press for the payment of the disputed amount during the pendency of the appeal.”

And at the end of the day their Lordships held-

“Inasmuch as the appeal is admitted, the impugned order is automatically stayed.”

Upon a perusal of the above decisions of this Court, it is now held that when the appeal was registered and admitted for hearing, the order in question which is impugned in the appeal has been automatically stayed. In the instant case since the appeal has registered and is awaiting for hearing, the respondent No.3 curiously adjusted the amount in the current register of the petitioner as evident from the impugned order dated 18.03.2007 (Annexure-G). The said decision of the respondent No. 3 is indeed unlawful in a sub judice matter and is, therefore, liable to be quashed. In such circumstances the purported decision taken by the respondent No. 3 is very much unlawful, without jurisdiction and to be declared as void and a nullity in law.

25. Moreover section 43 of the Act empowers the National Board of Revenue to call for record and to examine the same and arrive at its decision on a given matter. For proper appreciation of law, reproduced herein below is the said section 43:

“৪৩ (১) বোর্ড স্বতঃপ্রবৃত্ত হইয়া এই আইনের অধীন কোন কার্যধারার নথিপত্র উহাত বোর্ডের অধঃস্তন কোন মূল্য সংযাজন কর্মকর্তা কর্তৃক প্রদত্ত আদেশ বা সিদ্ধান্তর বৈধতা বা ন্যায্যতা সম্পর্কে সন্তুষ্ট হওয়ার উদ্দেশ্যে তলব ও পরীক্ষা করিতে পারিবে এবং উহা তৎসম্পর্কে যেইরূপ বিবেচনা করে সেইরূপ আদেশদান করিতে পারিবে।"

Significantly, however, Sub-section 3 of said Section 43 places limits on the Board’s power and prohibits the initiation of any action as otherwise sanctioned under sub-section above when an appeal under section 42(1) of the Act is pending and until disposal of the said appeal. Sub-section 3 of Section 43 runs as follows-

“৪৩ (৩) যে ক্ষেত্রে ধারা ৪২ এর উপধারা-(১) এর অধীন কোন অাপীল বিবেচনাধীন রহিয়াছে সে ক্ষেত্রে উক্ত আপীল নিষ্পত্তি না হওয়া পর্যন্ত উপধারা (১) এর অধীন কোন কার্য্যধারা শুরু করা যাইবেনা।”

26.   In view of the above provisions of law, when an appeal under section 42(1) is pending before the Tribunal the Board’s functions as provided by section 43(1) is clearly to be stayed under section 43(3) of the Act, the respondent No.3, being a subordinate officer to the Board, cannot consider himself to be possessed of any further residual authority in law equipping him in any manner to legally pass such kind of order like the impugned order dated 18.3.2007 whatsoever. Where the National Board of Revenue itself has no such power in a pending appeal it would be highly presumptuous of the respondent No. 3 to suppose himself to be somehow the repository of such power. This Court’s reading of the act finds no legal basis for such assumption of authority by the respondent No. 3. In such view of the fact, we have no hesitation to hold that the respondent No.3 went beyond his jurisdiction and passed the impugned order which has no legal force and is to be declared to be without any lawful authority and as having no legal effect.

27.   Since the appeal is pending before the Customs, Excise & VAT Appellate Tribunal and could not proceed due to the filing of this writ petition as is evident from a statements to that effect accorded in the petitioner’s Supplementary Affidavit, even though there is no order of stay in respect of the appeal pending before the Tribunal, we are now inclined to direct the respondent No.5, Appellate Tribunal to dispose of the appeal within a certain period, keeping in mind the observations as stated above.

28.   On the issue of maintainability of this writ petition as raised by the Learned Assistant Attorney General, in light of the questions of the law raised under this Rule and decided upon by this Court as above, this Court subscribes to the principle reflected in the decision reported in 40 DLR(AD)-206, thus “If the writ Jurisdiction is sought to be involved raising purely a question of law or interpretation of statute, availability of an alternative remedy will not stand in the way.” In view of the above observation it is decided that the instant writ petition is maintainable.

29.   In the result, the rule is made absolute without, however, any order as to costs. The impugned order dated 18.03.2007 passed by the respondent No.3 demanding Tk. Tk. 87,14,891.86 as alleging less paid VAT during the period of 21.9.2006 to 28.02.2007, adjusting the said amount by deduction in the current account register of the petitioner and stopping the supply of the goods till having positive balance in the said register (Annexure-G) is declared to be without lawful authority and of no legal effect. The respondent Nos. 1-4 are directed to restore the petitioner’s current account register and refund the said amount of Tk. 87,14,891.86 to the petitioners current register as has been deducted by the impugned order dated 18.3.2007 (Annexure-G), and the Respondent No.5, Appellate Tribunal is also directed to finally dispose of the appeal in accordance with law, keeping in mind the observations made herein above, positively within 60 (Sixty) days from the date of receipt of a certified copy of this judgment and order.

        Communicate this judgment and order at once.

Ed.

Pijush Kanti Chowdhury Vs. Sitakunda Sharine Committee, 2018(1) LNJ (AD) 34

Case No: CIVIL APPEAL No. 125 of 2004

Judge: Md. Muzammel Hossain, J

Court: Appellate Division ,

Advocate: Mr. Rokonuddin Mahmud, Senior Advocate, Mr. Horendra Nath Nandi, Advocate,,

Citation: 2018(1) LNJ (AD) 34

Case Year: 2012

Appellant: Pijush Kanti Chowdhury

Respondent: Sitakunda Sharine Committee and others

Subject: Constitution of Bangladesh, 1972

Delivery Date: 2018-06-04

APPELLATE DIVISION

(CIVIL)

Md. Muzammel Hossain, C,J.

Md. Abdul Wahhab Miah

Nazmun Ara Sultana, J

Syed Mahmud Hossain, J

Md. Shamsul Huda, J

Judgment on

12.06.2012

}

Pijush Kanti Chowdhury

. . .Appellant

-Versus-

Sitakunda Sharine Committee and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 104

To overcome the difficulties re-course must be had to Article 104 of the Constitution for doing complete justice in the matter. Article 104 of the Constitution is an extra-ordinary power given to this Division to issue orders or directions as may be necessary for doing complete justice in a cause or matter-pending before it. This power can be exercised in a cause or matter which is pending before this Division when it is found that no remedy is available to the appellant for gross injustice caused to him for no fault of his own. In view of the administrative reforms of 1983 creating separate District of Cox’s Bazar, emerging social needs, informational development and formation of different professional groups, the amendment so made by the High Court Division is not sufficient to meet the requirement of the requirement of the present day. Performance of religious acts and developments would be difficult without co-ordinate efforts of different professional bodies and social organizations. Again, to amend the Scheme it has to be kept in view that the amendment does not jeopardize or compromise the interest of the Deities and the holiness of the place of pilgrimage. Therefore, we are inclined to invoke extra ordinary power of this Division under Article 104 of this Constitution for reconstituting the Sitakunda Shrine Committee, by further amendment and modification of the Scheme amended by the High Court Division, in the best interest of the Shrines under the unified command and control without affecting the basic tenets and character of the existing Scheme. The reconstitution of the committee would not charge the unitary and indivisible character of the shrines. Accordingly, the scheme for the Sitakunda Shrine Committee as amended by the High Court Division for managing and Administering the three Temples are further modified and amended by reconstituting the Shrine Committee by the Appellate Division of the Supreme Court of Bangladesh. . . . (12, 16 and 17)

Delhi Development Authority Vs. Skipper Construction Company (P) Ltd and another, AIR 1996 SC 2005; Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yaday and another, (2005) 3 SCC 284 P 294; Ashok Kumar Gupta Vs. State of U.P. 12 SCC 250, and Bangladesh Vs. Shamirunnessa, 2005 BLD (AD) 225 ref.

For the Appellant: Mr. Rokonuddin Mahmud, Senior Advocate, instructed by Mr. Bivash Chandra Biswas, Advocate-On-Record.

For the Respondents: Mr. Horendra Nath Nandi, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-On-Record.

JUDGMENT

Md. Muzammel Hossain, J: This appeal by leave is directed against the judgment and order dated 31.05.2001 passed by a Division Bench of the High Court Division making the Rule absolute in Civil Rule No.159 (R) of 2001 in modification of the Scheme dated 14.05.1947 arising out of F.A. No.398 of 1911 and connected Civil Rule No.1586 (F) of 1945 which arose out of the original decree dated 07-11-1911 passed by the learned District Judge, Chittagong in Civil Suit No.1 of 1911.

2. The relevant facts in brief are that Civil Rule No.159 (R) of 2001 arose out of an application made by the respondent No.1-Sukhamoy Chakraborty, Secretary of Sitakunda Shrine Committee for the Temples of Chandranath Dam at Sitakunda and Kanchannath at Fatikchari in the District of Chittagong and Adinath Temple at Moheskhali in the District of Cox's Bazar for amendment and modification of the Scheme which was framed by the then High Court of Judicature at Fort William in Bengal now in India in Civil Rule No.1586 (F) of 1945 on 14^th May,1947 which arose out of an appeal being First Appeal No.398 of 1911 against the decree dated 07-11-1911 passed by the learned District Judge, Chittagong in Civil Suit No.1 of 1911.

3. The aforesaid First Appeal and the connected Civil Rule No.1586 (F) of 1945 were the matters of the then Calcutta High Court and those were already disposed of long before the partition of India, By the aforesaid judgment dated 3-01-1915 of the Calcutta High Court a Scheme was created for management of the affairs of 3(three) Hindu Temples of Kanchannath at Fatikchari, Chandranath Dham at Sitakunda and Adinath Temple at Moheskhali Police Station of the then Chittagong District. According to the Scheme created by the Calcutta High Court the above named 3(three) Temples were to be managed by a Management Committee consisting of:

“ (i) One representative from the Adhikaris.

(ii) One representative from the local Hindu Endowment Committee.

(iii) One Hindu resident of Sitakunda to be nominated by the District Judge, Chittagong.

(iv) One representative of the elected Hindu members of the District Board of Chittagong.

(v) One representative of the elected Hindu members of Chittagong Municipality to be elected by the Hindu members.

(vi) One representative of the Hindu members of the local Bar Association.

(vii) One representative of the Sitakunda Pilgrimage Improvement Fund Committee at Chittagong Town.

(viii) One Hindu judicial officer of the District Judge's Court to be nominated by the District Judge, failing which, a Hindu gentleman to be nominated by the District Judge, Chittagong.

(ix) One representative of the Bharat Sevasram Sangha to be nominated by the Sangha.

(x) The Mohunt shall be a member of the Committee, ex-officio.”

4. The respondent No. 1 Sukhamoy Chakratorty, the Secretary Sitakunda Shrine Committee as the appellant filed an application for amendment and modification of the Scheme under clause 27 of existing Scheme of Sitakunda Shrine Committee stating, inter-alia that due to the Partition of India in 1947 and birth of Bangladesh in 1971 political, administrative and organizational change has taken place at the root of the society. With the progress of the society the clause made in the Scheme vide judgment dated 14^th May 1947 became unworkable. New social and professional forces are taking leading part in the socio-religious organizations, and the old organizations are coming to an end in the natural course of social process and cannot meet the exigencies of the needs of the society.

5. Civil Rule No.159 (R) of 2001 arose out of an application made by the present respondent No.1 (as the petitioner) seeking an amendment of the above Scheme created by the then High Court of Calcutta by way of reconstituting the aforesaid Management Committee and the respondent Nos.2-11 were impleaded as opposite parties in the above Civil Rule although none of them were made parties in Calcutta High Court. However, the respondent No.10 herein is the Government of the People's Republic of Bangladesh represented by the Deputy Commissioner of Chittagong and respondent No.11 is the Deputy Commissioner of Cox's Bazar and they were made opposite parties respectively as opposite party Nos.9 and 10 in the aforesaid Civil Rule No.159 (R) of 2001. The High Court Division by judgment and order dated 31-05-2001 made the Rule absolute and the Scheme for management of the affairs of the three Hindu Temples of Kanchannath at Fatikchari, Chandra Nath at Sitakunda and Adinath at Moheshkhali Police Stations under the then Chittagong District sanctioned and made by the then High Court of judicature at Fort William in Bengal by judgment dated 14-05-1947 in First Appeal No. 398 of 1911 and connected Civil Rule No. 1586 (F) of 1945 was amended and modified by reconstituting the aforesaid Management Committee.

6. Being aggrieved by the aforesaid judgment and order dated 31-05-2001 passed by the High Court Division in Civil Rule No. 159 (R) of 2001 the petitioner preferred the instant Civil Petition for Leave to Appeal No. 1765 of 2001 before this Division.

7. In the leave petition the petitioner stated that he is the President of Sree Sree Adinath Mandir Shanskar Committee, Moheskhali, Cox's Bazar and is a devotee of the Temple and as such he is interested in the affairs and Management of the Temples and he was not made party in the above Civil Rule but he came to know about the proceedings on 06.06.2001 from the Court of District Judge, Chittagong and thereafter, he came to Dhaka and consulted Mr. Rokanuddin Mahmud, the learned Senior Advocate, who advised him to contest the matter by filing an application for being added as a party that while the petitioner was taking such steps to file an application for addition of party, he was informed by Mr. H.S. Deb Barman, the learned Advocate for the respondent No.1 in the aforesaid Rule that the said Rule was already made absolute by judgment and order dated 31.05.2001 and it surprised him as the Rule was issued only on 12.04.2001 and it was disposed of within 6 weeks. It has been further stated that the Partition of India took place in 1947 and subsequent to the aforesaid judgment of the Calcutta High Court dated 14.05.1947, the administrative reforms resulted in bifurcation of Cox's Bazar as independent District in the year 1983 and as such the aforesaid Management Committee as constituted by the Calcutta High Court has become obsolete. It is to be mentioned here that there is at present no District Board at Chittagong or Cox's Bazar and as such the question of representative of elected Hindu members of such District Board does not arise. Secondly, even if there was any such District Board after the Partition of India in 1947, there was hardly any Hindu member. There is a provision for representative of Hindu elected members of Chittagong Municipality but Chittagong Municipality is no longer in existence and in its place Chittagong City Corporation has been created and there has not been a Hindu member in Chittagong Municipality or Chittagong City Corporation for a long time, and though there is one Hindu member in Chittagong City Corporation but she is not in the Management Committee that according to the Scheme there should be one representative of the Bharat Sevasram Sangha but after the Partition of India in 1947, there has been no Bharat Sevasram Shangha in the then East Pakistan nor in present Bangladesh. There is also no Mohunt in any of the Temple at present and as such there is no Muhunt in the Management Committee. In view of the above, Management Committee as sanctioned by the Calcutta High Court is non est, under the Scheme. The administrative reforms of 1983 resulting in creation of separate District for Cox's Bazar, has put Adinath Temple at Moheshkhali outside the territorial jurisdiction of Chittagong District Judge and as such the administration of Adinath Temple at Moheshkhali which is now under the jurisdiction of Cox's Bazar is being hampered. Many of the properties belonging to Adinath Temple at Moheshkhali has been included in the khas khatian of the Government in the last B.S. Survey. Besides, many other properties for lack of proper maintenance, care and custody have been under illegal occupation of trespassers and intruders causing mismanagement and mal-administration in the Management Committee of the said Temple being far away from Cox's Bazar; that after the creation of Cox's Bazar as a separate District no representative from Cox's Bazar or nominee of District Judge of Cox's Bazar was included in that Management Committee that in the District of Chittagong under Fatickchari Police Station the Temple of Chandranath and under Sitakunda Police Station the Temple of Kanchannath are situated. But in the District of Cox's Bazar under Moheshkhali Police Station the Adinath Temple is situated and as such the administration and management of the affairs of Adinath Temple at Moheshkhali is being greatly hampered because of the said Temple is under separate District of Cox's Bazar which is far away from Chittagong Town. Admittedly, Moheshkhali is an island at the coast of Cox's Bazar and is far away from Chittagong Town requiring a journey by road and boat absorbing a minimum of 7 hours journey from Chittagong Town whereas Moheshkhali is only about one hour's journey from Cox's Bazar by ordinary boat and about twenty minutes by speed boat.

8. In Civil Rule No. 159 (R) of 2001 the High Court Division having considered the whole gamut of the proposed Scheme for the amendment of the Scheme which was framed by the High Court of Judicature at Fort William in Bengal, now in India in Civil Rule No.1586 (F) of 1945 on 14th of May,1947 which arose out of an appeal from Original Decree No.398 of 1911 passed in Civil Suit No.1 of 1911 by the District Judge, Chittagong framed the following Scheme for the Sitakunda Shrine Committee for Managing and Administering the Temples and estates of Chandranath Dham at Sitakunda and Kanchannath at Fatikchari in the District of Chittagong and Adinath Mandir at Maheshkhali in the District of Cox's Bazar:

“ 1. All movable and immovable properties of the Shrines, whether existing at present or to be acquired in the future are to be regarded as the properties of Deities Swayambhu Nath, Chandranath, Adinath etc. and no private right whatsoever in them, whether of the Mohunt, the Adhikaris, the Pujaris or any body else, shall be recognized. No immovable property shall be acquired by the Mohunt or the Pujaris or by the members of the Shrine Committee, individually or collectively, in their names or in any other mode and manner from the income or usufruct of the Shrines and despite such bar, if any acquisition of property is made in the individual name or collective names, such property shall be regarded as the property of the Deities in absolute interest and no personal interest of any sort shall be entertained for any purpose.

2. The general Hindu public of any caste not suffering from any physical disability shall have the right of access and worship in these Temples at all relevant times, subject to any reasonable restrictions that may be imposed by the Shrine Committee for the convenience of the Seva-Pajas and performance of other religious ceremonies.

3. All income of the properties left after meeting the payment of compulsory rent and revenue demands and the cost of administration shall be used (a) to defray the expenses of the daily and occasional ceremonial pujas of Deities Swaymbhunath, Chandranath, Birupaksha, Uudkotishiva, Joutirmoyee Devi, Bhavani Debi and Bhairab and pujas at Chandi Bhaban (Mandir), Sita Mandir, Barabanal, Labanakhya, Sahashra Dhhara etc; at Sitakunda, Adinath, Astabhuja and Bhairab at Moheshkhali and Kanchannath and Baneshwar (Shovanchari Shib Mendir) at Fatikchari (b) to perform the ceremonial worships and rites that by tradition or custom have come to be associated with these places of pilgrimage; (c) to preserve and improve the Shrines and their approaches (d) to preserve, protect and maintain the existing buildings and structures and to construct new one, whenever found necessary, for housing the estate officers, itinerant Sadhus and poor pilgrims, who cannot afford to have accommodation of their own; (e) to create and set up Hindu religious, spiritual and cultural centers and (f) to do any charitable and religious work, commensurate with the ideals of the Shrines, as may be approved by the Shrine Committee.

4. The movable properties meant for the seva-pujas of the Deities shall on no account be used for private purposes. These cannot be pawned, mortgaged or sold or disposed of under any circumstances, Properties meant for the use and occupation of the Mohunt and the estate officers shall not be regarded as private properties and these will be used only by the persons approved by the Shrine Committee.

5. The Mohunt shall be a person belonging to one of the Dasnami sects of Sanyasis introduced by Sree Sankaracharya or from a high caste Brahmin who renounced wordly affairs and detached himself from family ties. The Shrine Committee will take necessary steps in these regards in consultation with the District Judge, Chittagong. The Mohunt must be a celibate or one who has renounced his wife and children and has accepted the life of a sanyashi according to the Vedic rites. He should be well versed in Sanskrit and in Hindu Scriptures and must follow a life of strict integrity, purity and self abnegation. Marriage, sexual exercises or addiction to drinks and narcotics shall be regarded as disqualification inviting immediate removal from the office. No indulgence in the pleasure, of the flesh, sought to be supported by a reference to the Tantric Texts, shall be considered a justification for a departure from the rule laid down above.

6. The Mohunt, whenever necessary or called upon, shall be appointed by the Shrine Committee in consultation with the District Judge, Chittagong and the best available incumbent should be selected, but once appointed, he shall remain in office till death, retirement or removal.

7. The Mohunt may take disciples, if necessary. Such disciples, if any, properly nominated by the Mohunt will be eligible to succeed to the Gadi (Office), subject to the approval of the Shrine Committee and the District Judge, Chittagong.

8. The preservation of the Shrines, the Deities and the Seva-pujas arc the responsibilities of the Shrine Committee. The Shrine Committee shall conduct, perform and manage the Seva-pujas and other ceremonial worships of the Deities and ceremonial rites and rituals in prevalence over years through the Mohunt in strict compliance with the prevailing customs and traditions. In case of necessity, the Shrine Committee shall have the right to make such arrangement for these functions as may be found expedient in the best interest of the Deities and the Shrines, with prior approval of the District Judge, Chittagong.

9. The Mohunt shall not intermeddle with the administration of the Shrine properties, which shall ordinarily be in charge of Manager appointed by the Shrine Committee, subject to the ultimate control and superintendence of the Shrine Committee. The salaried Manager appointed by the Shrine Committee shall, subject to the superintendence of the Shrine Committee, shall collect rents, grant receipts, pay dues and charges for and on behalf of the Shrines and will also do such other thing or things as may be assigned to him by the Shrine Committee but he shall have no power to sell, exchange, mortgage, lease out or in any way alienate any immovable property belonging to the Shrines. Any such thing or things done by him shall be totally void and without authority.

10. The Mohunt shall have the right of residence in the 'Astanabari' of the Shrines with his disciples. With the approval of the Shrine Committee and in consonance with the dignity of his position, he should receive from the Shrine estates as suitable monthly allowance to be fixed by the Shrine Committee, in consultation with the District Judge, Chittagong. The Shrine Committee shall review his service condition and salary from time to time.

11. The Mohunt will be entitled to half of the 'prenames' offered to him impersonally by the devotees while the other half shall go to the fund of the Shrines.

12. Subject to the ultimate control of the District Judge, Chittagong the secular affairs of the Shrines, including the general administration and management of the Shrines, the collection of rents and offerings from Charani, Manashi etc. the payment of revenue, rent rates and other public dues, the filing of suits, cases, whenever necessary, the improvement of the Shrine estates etc. shall be the responsibility of the Shrine Committee and shall perform these acts in the best interest of the Shrines. The members of the Shrine Committee or their authorized agents, if any, shall have to indemnify the Shrines for any damages or injury caused to the Shrines and the Shrine properties for their acts of willful negligence, malfeasance and malafides. The Shrine Committee, if for any special reason considers it necessary .may authorize any office-bearer of the Committee or any employee of the Shrines to do these things for a specified time and such office bearer or employee shall be responsible and accountable for his work in these regards to the Shrine Committee.

13. The Manager, the Cashier or any other employee, considered necessary for the benefit of the Shrines shall be appointed and dismissed by the Shrine Committee, wherever found expedient in the interest of the Shrines, subject to the approval of the District Judge, Chittagong. The employees of the Shrines shall furnish such security as may be fixed by the Shrine Committee. They shall remain accountable for all their acts and works to the Shrine Committee.

14. The Sitakunda Shrine Committee shall be constituted as follows:-

(i) One representative from the Aadhikaris.

(ii) One representative from the Hindu Endowment Committee (Hindu Utsarjan Committee) at Chittagong City.

(iii) Two Hindu residents of Sitakunda and one Hindu resident of Fatikchari to be nominated by the District Judge, Chittagong, Similarly, one Hindu resident of Moheskhali to be nominated by the District Judge, Cox's Bazar.

(iv) One elected Hindu member from the District Council / Zila Parishad of Chittagong, if any, to be nominated by the Chairman of the District Council / Zila Parishad, Chittagong. If no such person is available, the Chairman of the District Council / Zila Parishad shall be approached by the Shrine Committee to nominate any Hindu of high social standing or a well reputed Advocate to act as a member of the Shrine Committee from this category for a period of 5 years and he shall function as such till the expiry of the term of the Committee.

(v) One representative of the Chittagong City Corporation to be elected by the Hindu Commissioners / Hindu Members, failing which a well reputed and pious Hindu of Chittagong City. to be nominated by the Mayor of Chittagong City Corporation to act as a member of the Shrine, Committee from this category. He shall function as a member of the Shrine Committee till expiry of the term of the Committee.

(vi) Two Hindu representatives from the District Bar Association of Chittagong and one Hindu representative from the District Bar Association of Cox's Bazar to be reelected by the Hindu members under the supervision of the Executive Committee of the said Bar Associations.

(vii) One representative from the Sitakunda Pilgrimage Improvement. Fund Committee (Tirtha Unnayan Committee) Chittagong City.

(viii) One Hindu Judicial Officer from the Judgeship of Chittagong to be nominated by the District Judge, Chittagong failing which, a well reputed Hindu Advocate to be nominated by the District Judge, Chittagong.

(ix) One representative of the Bangladesh Sevashram Sangha to be nominated by the Sangha at Chittagong City.

(x) The Mohunt shall be an ex-officio member of the Shrine Committee.

(xi) One representative from Bangladesh Tripura Sannatan Kalyan Parishad to be nominated by that Parishad at Khagrachari Town under the supervision of the Deputy Commissioner, Khagrachari.

(xii) One representative from the Adinath Mandir Sanskar Committee at Moheskhali, District Cox's Bazar, to be nominated by that Committee under supervision of the Upazila Nirbahi Officer, Moheskhali, Cox's Bazar.

(xiii) One representative from the Hindu teachers of the Chittagong University to be elected by its Hindu teachers under the supervision of the Registrar of the University of Chittagong.

(xiv) One Hindu representative from the Supreme Court Bar Association to be elected by the Hindu members of the said Association under the supervision of the Executive Committee of the Supreme Court Bar Association, Dhaka.

(xv) Two reputed Hindu gentlemen from any place in Bangladesh to be co-opted by the Sitakunda Shrine Committee, in consultation with the District Judge, Chittagong whose service shall be considered beneficial to the interests of the Shrines.

15. The Sitakunda Shrine Committee means Sitakunda Chandranath Shrine (Chandranath Dham), Kanchannath Shrine and Adinath Shrine (Tritha) Management Committee. Its head office shall be located at Sitakunda Chandranath P.S. Sitakunda, District Chittagong.

16. Except the Mohunt, the other members of the Shrine Committee shall hold office for five years. The Shrine Committee shall be reconstituted at the end of every Five years term. There is no bar against re-election of a member any number of times. In case of death, resignation or removal of any member the vacancy shall be filled up by election and the tenure of the new member shall be up to the tenure of the existing Committee. Charge of office shall have to be handed over by the out-going Committee to the newly formed Committee within seven days of its formation.

17. The Committee shall elect a President, a Senior Vice-President, a Vice President, a Secretary and two Assistant Secretaries and they shall discharge their powers and functions as trustees of the Shrines in consonance with religious customs and traditions. Of the two Vice-Presidents, one shall be from Cox's Bazar District and of two Assistant Secretaries one shall be from Moheskhali, Cox's Bazar.

18. Meetings of the Shrine Committee should be held preferably once in every month and must be held at least thrice in a calendar year at Sitakunda. At least one meeting in a calendar year must be held at Adinath, Moheskhali, Quoram of the meetings will be formed with the presence of one-third members of the Committee. Minutes of the proceedings of such meetings shall be maintained in a bound volume as permanent record.

19. The Sitakunda Shrine Committee shall have the right to appoint pujaries, menials and other employees for the Shrines, which may be found necessary by the Shrine Committee, for smooth and efficient running of the affairs of the Shrines. The terms and conditions of their service, including salary and other benefits, shall be determined by the Shrine Committee in consultation with the District Judge, Chittagong.

20. The minimum qualification of the Mohunt shall be a Higher Secondary School pass certificate from a recognized Board of the country or equivalent thereto. The Minimum qualification of the Pujari shall like wise be a Secondary School pass Certificate from a recognized Board or equivalent thereto. Preference shall be given to religious title holders such as Kabyatirtha, Smrititirtha etc.

21. The Committee shall have the right to take disciplinary actions against the Mohunt, Pujari and any of the employees of the Shrines, including suspension, termination and dismissal from service on grounds of inefficiency, negligence of duty, insubordination, acting in any manner prejudicial to the interest of the Shrines, indulging in any activity subversive of the state or of discipline, any undignified conduct not commensurate with the high ideals and sacredness of the Shrines, malafides and malfeasance. The delinquent shall have the privilege of an appeal before the District Judge, Chittagong whose decision in the matter shall be final.

22. The President shall be the executive head of the Shrine Committee and he shall preside over all Meetings. He shall have the power to direct the Secretary to convene any Meeting of the Shrine Committee in the normal course of firmness and an Emergency Meeting within twenty four hours. If the Secretary for any reason fails to convey such Meeting directed by the President, the latter shall himself convene such a Meeting. In the absence of the President, the Senior Vice-President shall preside over the Meeting and in case the President and Vice-Presidents are not available, any senior member of the Committee shall preside over the Meeting.

23. The Secretary shall be responsible for the over all management of the affairs of the Shrines. The functions of the Assistant Secretaries shall be assigned by the Shrine Committee and they shall be responsible for their activities to the Committee.

24. The Secretary shall take proper steps to prepare and preserve (a) a complete record of all the properties of the Shrines, both movable and immovable, which are presently in possession of the Shrines and (b) and up-to-date record of properties, which are now not in possession of the Shrines but are likely to be recovered from the illegal occupiers by taking appropriate legal or administrative steps. Records of khas lands, lands under permanent tenants and temporarily settled lands belonging to the Shrines should be separately maintained. Movable properties classified as (a) articles belonging to the Deities and (b) articles intended for use of the establishment shall be entered in a stock book, which has to be periodically made up-to-date. He shall also maintain a separate Register of all dues payable by the Shrines as revenue, cess or rent, rates and other public dues, mentioning the exact dates by which these are required to be paid and the dates when these have been actually paid.

25. The Secretary shall and arrange for their safe custody and proper maintenance. He also keep all important papers and correspondence relating to the Shrine estates in appropriate files, and shall, for that end, obtain copies of important letters or classified authenticated information from the Office of the District Judge, Chittagong and other relevant offices. An authenticated complete list of properties of the Shrines, moveable and immovable, must be promptly supplied to the District Judge, Chittagong for his record.

26. The Secretary shall not sell or other wise dispose of or alienate any immovable property of the Shrines nor shall he lease out and mortgage any such property under any circumstances. He shall not borrow any money from any person or authority for the Shrines except under a resolution of the Shrine Committee, duly approved by the District Judge, Chittagong. The Mohunt must not borrow at all. Any loan in violation of these conditions shall not be binding upon the Shrines. Neither the Secretary nor the Mohunt or any other person shall have the right to encumber the estates of the Shrines by way of pawn or mortgage, except on the basis of a resolution of the Shrine Committee passed by a majority of at least two third Members of the Shrine Committee in a specially convened Meeting for the purpose and with and due approval of the District Judge, Chittagong. Such extra- ordinary step shall be resorted to only when it is found absolutely necessary in the best interest of the Shrines. Such as the protection, preservation and beneficial advancement of the value of the Shrine Estates.

27. If on account of any emergency and that for the benefits of the Shrines and the Deities, non-permanent settlement of any property of the Shrines for more than three years becomes necessary, it shall be done only under a written resolution of the Shrine Committee adopted by a majority and with the sanction of the District Judge, Chittagong. Necessary documents shall be executed by the Secretary of the Shrine Committee as the representative of the Deities and the Shrines and the certified copy of such documents must be promptly supplied to the District Judge, Chittagong for his record. Certified copies of such documents must also be preserved in the Office of the Secretary of the Shrine Committee and it shall be produced before the Members of the Committee for their perusal and scrutiny in the next Meeting of the Shrine Committee.

28. The Secretary shall keep regular accounts and preserve all vouchers. The vouchers may be destroyed after three years, if permitted by the Shrine Committee. The Secretary shall maintain accounts in any Nationalized Bank in the name of the Sitakunda Shrine Committee, to be operated by the President, Secretary and Senior Vice-President. Money shall be withdrawn by joint signatures of any two of them.

29. At least a month and a half before the beginning of the Bengali Calendar Year, the Secretary shall prepare a budget of income and expenditure of the Shrines and get it passed by the Shrine Committee. The budget will then be placed before the District Judge, Chittagong, for his sanction and he may make such modifications thereto as he may consider necessary. The amount allowed for the daily Seva-Pujas of the Deities will be made over to the Mohunt from time to time, and incase of emergency, an extra grant up to Taka five thousand during a calendar year may be paid to him by the Secretary, with the sanction of the Shrine Committee.

30. The Secretary will not generally spend any money in excess of the budget. In case of emergency, he may spend up to amount of Taka 5,000.00 (Five thousand) only in excess or the budget but he must get it approved by the Shrine Committee in the next Meeting of the Committee.

31. Within two months after the end of a Bengali Calendar year the Secretary shall submit accounts of the Shrines for the immediate past year and the accounts must be audited by an Auditor to be nominated by the District Judge, Chittagong. The report of the Auditor is to be submitted to the Shrine Committee and the Committee with its remarks on the report will sent a copy of the same for the perusal of the District Judge, Chittagong. Any direction given on such report by the District Judge shall be duly respected. The accounts shall have to be passed in the next meeting of the Shrine Committee.

32. The Sitakunda Shrine Committee shall have powers to frame rules in conformity with the sprit of the Scheme for conveniences of administration of the Shrine Estates and for carrying out the work of proper management and development of the Shrines.

33. The Upazila Nirbahi Officers of Sitakunda, Fatikchari and Moheskhali along with the Officers-in-Charge of these three Police Stations shall co-operate with the Shrine Committee in administering, preserving and protecting the properties of the three Shrines and shall provide necessary safety and protection thereto.

34. The Divisional Commissioner, Chittagong through the Deputy Commissioner of Chittagong will supervise and maintain the law and order situation of the Sitakunda "Shiva Chaturdashi and Dol Purnima Mela" festivals while the Deputy Commissioner of Cox's Bazar will supervise and maintain the law and order situation of the "Adinath Shiva Chaturdashi and Dol Purnima Mela" festivals at Moheskhali, Cox's Bazar in consultation with the Sitakunda Shrine Committee.

35. ln case of any doubt, dispute or difficulty regarding the true import or interpretation of any of the Clauses of the Scheme, the Mohunt or the Shrine Committee may apply to the District Judge, Chittagong for necessary explanation and clarification, directions and guidelines. The explanation, clarification and guidelines given by the District Judge, Chittagong not being inconsistent with this Scheme, shall be final.

36. The Sitakunda Shrine Committee will arrange Annual Vedic Conference and will award certificates of honour and Crest / Padak to those distinguished personalities who have made laudable contributions in various fields of the national life or to the advancement of the society and humanity at large.

37. The Mohunt or any member of the Shrine Committee may approach the Shrine Committee to apply to the High Court Division of the Supreme Court of Bangladesh for amendment of this Scheme to meet emergent situations and in case the Committee fails to take necessary action this regard within 15 days of the written notice served upon the President and the Secretary of the Shrine Committee, he shall have the right to apply before the High Court Division of the Supreme Court of Bangladesh for amendment of this Scheme solely for the benefit of the Shrines but under no circumstances the proposed amendment shall be directed to effect separation of the management of the Shrines, toughing its "unitary and integrated character".

9. Leave was granted to consider the following submissions of the learned Advocate for the petitioner-appellant:

1. That the High Court Division of the Supreme Court of Bangladesh is a Court created under the Constitution of the People’s Republic of Bangladesh and it being not a successor Court of Calcutta High Court has not been vested with any power to amend the Scheme passed by the Calcutta High Court nor it has any power under its Rules to issue a Rule that is Civil Rule No. 195 (R) of 2001 on an interlocutory application in F.A. No. 398 of 1911 of Calcutta High Court. The High Court Division in Civil matters may issue Rule only on an application under Section 115(1) of the Code of Civil Procedure or on an interlocutory application in an Appeal filed and pending before it and the High Court Division has also no original jurisdiction in the subject matter of the Rule.

2. That a Scheme created by Calcutta High Court by its judgment dated 14.5.1947 in Civil Rule No. 1586 (F) of 1945 arising out of its F.A. No. 398 of 1911 cannot be amended by the High Court Division of the Supreme Court of Bangladesh and it is unprecedented that the Rule issued and disposed of by the Calcutta High Court before the partition of India can be amended by the High Court Division of the Supreme Court, Dhaka being not a successor Court of Calcutta and as such the findings and decisions as arrived at by the High Court Division in the impugned judgment cannot be sustained in law.

3. That the High Court Division having not applied its judicial mind in passing the impugned judgment and order dated 31.5.2001 in Civil Rule No. 159 (R) of 2001 arising out of F.A. No. 398 of 1911 and Civil Rule No 586 (F) of 1945 is misconceived and not at all maintainable in the eye of law.

10. Mr. Rokanuddin Mahmud, the learned Senior Advocate appearing for the appellant submits that he has instruction not to press the ground that the respondent has got no locus standi to file the Civil (R) No. 159 of 2001 and that the Scheme created by the then High Court by its judgment dated 14-5-1947 in Civil (R) No. 1586(F) of 1945 arising out of F.A. No. 398 of 1911 cannot be amended by the High Court Division of the Supreme Court of Bangladesh. Rather he submits that the appellant being the President of Sree Sree Adinath Mondhir Shanskar Committee, Moheskhali, Cox’s Bazar and a devotee of the Adinath Temple is interested in the affairs and management of the Temples and that by reason of the partition of India in 1947, which took place subsequent to the aforesaid judgment dated 14-5-1947 of the Calcutta High Court and the administrative reforms resulting in bifurcation of Cox’s Bazar as an independent District in the year 1983, the aforesaid Management Committee as constituted by the Calcutta High Court has become obsolete and that due to administrative reforms of 1983 separate District was created and which has put Adinath Temple at Moheshkhali, outside the Chittagong District and outside the territorial jurisdiction of District Judge, Chittagong and as such Administration of Adinath Temple of Moheskhali which is now in the jurisdiction of Cox’s Bazar is being hampered. Mr. Mahmud then submits that many of the properties belonging to the Adinath Temple at Moheshkhali has been included in the Khas Khatian of the Government in the last B.S. Survey. He then submits that besides, many of its properties for lack of proper maintenance, care and custody have been under illegal possession of trespassers, and intruders and that this has been possible due to total lack of care and management by the Management Committee which is located at a place far away from Cox’s Bazar. After the creation of Cox’s Bazar as a separate District no representative from Cox’s Bazar or no nominee of the District Judge, Cox’s Bazar was included in that Management Committee. He further submits that since the Adinath Temple is situated within the District of Cox’s Bazar, the administration and management of the affairs of Adinath Temple of Moheskhali has greatly suffered by reason of it being located not only in a separate District under the jurisdiction of separate District Judge but also at a far distance from Chittagong Town. Moheskhali is an island at the coast of Cox’s Bazar which requires a journey by road and boat absorbing a minimum of 7 hours journey from Chittagong Town whereas Moheskhali is only about one hour journey from Cox’s Bazar by ordinary boat and about twenty minutes by speed boat. He finally submits that for proper and effective Administration of Sree Sree Adinath Temple/ Adinath Trithadham a separate Committee is required to be framed, if it is permissible for amendment of the Scheme created by the Calcutta High Court/ or the District Judge, Cox’s Bazar and other persons from different institutions or organizations in the District of Cox’s Bazar be included in the Sitakunda Shrine Committee for proper Administrations and Management of the Adinath Temple at Moheskhali.

11. Mr. Harendra Nath Nandi, the learned Advocate appearing for the respondent submits that due to Partition of India in 1947 and after the birth of Bangladesh in 1971 political, administrative and organizational changes have taken place at the root of the society, with the progress of the society the clause made in the Scheme vide judgment dated 14^th May 1947 became unworkable and that new social and professional forces are taking leading part in the socio- religious organizations, and the old organizations are coming to an end in the natural course of social process and can not meet the exigencies of the need of the society. Mr. Nandi further submits that particularly with the administrative changes that had taken place in Bangladesh, Adinath Temple of Moheskhali has come under the administrative jurisdiction of Cox’s Bazar District in the absence of any well –equipped dynamic instrument for management of the endowment property, the Debottar properties are going to be dispossessed as in the case of Kanchannath of Fatikchari, Chittagong. He then submits that in view of the application for amendment and modification of the Scheme of Sitakunda Shrine Committee the High Court Division by judgment dated 31-5-2001 in Civil Rule No. 159(R) of 2001 amended and modified the Scheme of Sitakunda Shrine Committee for managing, and administering the Temple estates of Chandranath Dhum at Sitkunda and Kanchannath at Fatikchari in the District of Chittagong and Adhinath Temple at Moeskhali in the District of Cox’s Bazar and as such there is no illegality in the amendment and modification of the Scheme. However, having considered the submissions of Mr. Rokonuddin Mahmud, the learned Advocate for the appellant, Mr. Nandi, the learned Advocate for the respondent submits that in view of the administrative changes that had taken place in 1983 resulting in creation of separate District of Cox’s Bazar the Adinath Temple at Moheskhali has been placed outside the territorial jurisdiction of the Chittagong District rather the Adinath Temple at Moheskhali has been placed under the territorial jurisdiction of Cox’s Bazar District and therefore, the appeal be disposed of by invoking Article 104 of the Constitution reconstituting the committee taking representatives of the District Judge, Cox’s Bazar and also representative of the Cox’s Bazar Zilla Parishad, Pourashava and also a Hindu member of the Cox’s Bazar District Bar Association. Having considered the submissions of Mr.Nandi, Mr. Mahmud submits that he has no objection if the appeal is disposed of invoking Article 104 of the Constitution by reconstituting the Sitakunda Shrine Committee keeping in view the submissions of both the parties without having any partition of the Shrines.

12. We have perused the leave petition, impugned judgment and order passed by the High Court Division, the Scheme for the Shrines amended by the High Court Division and other material on record and considered the submissions advanced on behalf of the appellant and respondent. From our Scrutiny we find that the essential features and character of the Scheme for the three Shrines have been retained in the amended Scheme and minor changes that have been made by way of amendment of the Scheme to meet the practical necessities for making the previous Scheme by the High Court of jurisdiction at Fort William in Bengal by Judgment dated 14^th May,1947 up to date, more realistic and flexible. However, in the instant case practical difficulties arose in view of the fact that the impugned judgment has amended an order and a Scheme made by the High Court of judicature at Fort William in Bengal now in India in Civil Rule No. 1586(F) of 1945 on the 14^th May 1947 which arose out of an appeal from Original Decree No. 398 of 1911 passed in Civil Suit No. 1 of 1911 by the District Judge, Chittagong. The impugned judgment amended an order and a Scheme made by the Calcutta High Court in continuation of a disposed of appeal and connected Rule by the High Court Division of the Supreme Court of Bangladesh which is a creature of the Constitution of Bangladesh. In the facts and circumstances of the case from the aforesaid submissions of both sides, it is crystal clear that both the appellant and the respondent have changed their stand and position and made a joint prayer invoking Article 104 of the Constitution for reconstitution of the Shrine Committee by further amendment and modification of the Scheme for the three Shrines amended by the High Court Division. To overcome the difficulties re-course must be had to Article 104 of the Constitution for doing complete justice in the matter. Article 104 of the Constitution is an extra-ordinary power given to this Division to issue orders or directions as may be necessary for doing complete justice in a cause or matter pending before it. This power can be exercised in a cause or matter which is pending before this Division when it is found that no remedy is available to the appellant for gross injustice caused to him for no fault of his own. In the case of Delhi Development Authority v. Skipper Construction Company (P)Ltd and another reported in AIR 1996 SC 2005 the Supreme Court of India observed that “ the power under Article 142 is meant to supplement the existing legal framework-to do complete justice between the parties- and not to supplant it. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. As a matter of fact, we think it advisable to leave this power undefined and uncatalogued so that it remains elastic enough to be molded to suit the given situation. The very fact that this power is conferred only upon this Court, and on no one else, is itself an assurance that it will be used with due restraint and circumspection, keeping in view the ultimate object of doing complete justice between the parties.” The Supreme Court of India further observed: “The absence of a statutory provision will not inhibit this Court while acting under the said Article from making appropriate orders for doing complete justice between the parties. The fiduciary relationship may not exist in the present case nor is it a case of a holder of public office, yet if it is found that someone has acquired properties by defrauding the people and if it is found that the persons defrauded should be restored to the position in which they would have been but for the said fraud, the Court can make all necessary orders. This is what equity means and in India the Courts are not only Courts of law but also Courts of equity.”

13. In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yaday and another reported in (2005)3 SCC 284 at page 294 the Supreme Court of India observed: “The plenary powers of this Court under Article 142 of the constitution are inherent in the court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties... and are in the nature of supplementary powers... (and) may be put on a different and perhaps even wider footing than ordinary inherent powers of a court to prevent injustice. The advantage that is derived from a constitutional provision couched in such a wide compass is that it prevents “clogging or obstruction of the stream of justice”. The Supreme Court further observed that “Article 142 vests the Supreme Court with a repository of discretionary power that can be wielded in appropriate circumstances to deliver “complete” justice in a given case. Article 142 is an important constitutional power granted to this Court to protect the citizens. In a given situation when laws are found to be inadequate for the purpose of grant of relief, the Court can exercise its jurisdiction under Article 142 of the Constitution. In Ashok Kumar Gupta v. State of U.P.12 (SCC at p. 250, para 60) this Court held:”

“ The phrase ‘complete justice’ engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution....”

14. In the case of Bangladesh v. Shamirunnessa, 2005 BLD(AD)225 this Division held that if a substantial justice under law and on undisputed facts can be made so that the parties may not be pushed to further litigation, a recourse to the provision of Art. 104 may be justified.

15. In order to meet the requirement of the leave petitioner as appears from the submissions of the learned Advocate Mr. Rokonuddin Mahmud that by reason of partition of India and creation of Pakistan in 1947 and subsequently the emergence of Bangladesh in December, 1971 and the administrative reforms resulting in the bifurcation of Cox’s Bazar as an independent District in the year, 1983, the Management Committee as Constituted by the Calcutta High Court has become obsolete and that due to administrative reforms of 1983 the Adinath Temple at Moheskhali has been put out side the territorial jurisdiction of the District Judge, Chittagong and that the administration and management of the Adinath Temple which is now under the territorial jurisdiction of the District Judge, Cox’s Bazar is being hampered inasmuch as many of the properties belonging to Adinath Temple has been included in the khas khatian of the Government in the last B.S. Survey operation and many of its properties for lack of proper maintenance, care and custody by the Management Committee have been under illegal possession of trespassers and that after the creation of Cox’s Bazar as a separate District no representative from Cox’s Bazar District was included in the Committee and as such the Scheme for the three Shrines is required to the reconstituted under the unified command and control of the Shrine Committee by amendment and modification for meeting the challenges and the realities in the best interests of the three Shrines keeping the essential feature and character of the Scheme for the three Shrines retained.

16. Considering the submissions of the learned Advocates for both the parties, as a matter of practical necessity for making the Scheme amended by the High Court Division up- to- date and comprehensive, in view of the administrative reforms of 1983 creating separate District of Cox’s Bazar, emerging social needs, informational developments and formation of different professional groups, the amendment so made by the High Court Division is not sufficient to meet the requirement of the present day. Performance of religious acts and developments would be difficult without co-ordinate efforts of different professional bodies and social organizations. Again, to amend the Scheme it has to be kept in view that the amendment does not jeopardize or compromise the interest of the Deities and the holiness of the place of pilgrimage. Therefore, we are inclined to invoke extra-ordinary power of this Division under Article 104 of this Constitution for reconstituting the Sitakunda Shrine Committee, by further amendment and modification of the Scheme amended by the High Court Division, in the best interest of the Shrines under the unified command and control without affecting the basic tenets and character of the existing Scheme. The reconstitution of the Committee as stated above would not change the unitary and indivisible character of the Shrines.

17. Accordingly, invoking extra- ordinary power under Article 104 of the Constitution, the Scheme for the Sitakunda Shrine Committee amended by the High Court Division for managing and administering the three Temples are further modified and amended by reconstituting the Shrine Committee in the following manner:

1.All movable and immovable properties of the Shrines, whether existing at present or to be acquired in the future are to be regarded as the properties of Deities Swayambhu Nath, Chandranath, Adinath etc. and no private right whatsoever in them, whether of the Mohunt, the Adhikaris, the Pujaris or anybody else, shall be recognized. No immovable property shall be acquired by the Mohunt or the Pujaris or by the members of the Shrine Committee, individually or collectively, in their names or in any other mode and manner from the income or usufruct of the Shrines and despite such bar, if any acquisition of property is made in the individual name or collective names, such property shall be regarded as the property of the Deities in absolute interest and no personal interest of any sort shall be entertained for any purpose.

2. (a) The Sitakunda Shrine Committee means Sitakunda Chandranath Shrine (Chandranath Dham), Kanchannath Shrine and Adinath Shrine (Tritha) Management Committee. Its Head Office shall be located at Sitakunda Chandranath Dham P.S. Sitakunda, District Chittagong.

2. (b) There shall be a collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. In case of any difference of opinion or decision between them, the opinion or decision of the District Judge having territorial jurisdiction over the concerned Shrine, property or matter shall have primacy.

3. The general Hindu public of any caste shall have the right of access and worship in these Temples at all relevant times, subject to any reasonable restrictions that may be imposed by the Shrine Committee for the convenience of the Seva-Pajas and performance of other religious ceremonies.

4. All income of the properties left after meeting the payment of compulsory rent and revenue demands and the cost of administration shall be used (a) to defray the expenses of the daily and occasional ceremonial pujas of Deities Swaymbhunath, Chandranath, Birupaksha, Uudkotishiva, Joutirmoyee Devi, Bhavani Debi and Bhairab and Pujas at Chandi Bhaban (Mandir), Sita Mandir, Barabanal, Labanakhya, Sahashra Dhhara etc; at Sitakunda, Adinath, Astabhuja and Bhairab at Moheshkhali and Kanchannath and Baneshwar (Shovanchari Shib Mendir) at Fatikchari (b) to perform the ceremonial worships and rites that by tradition or custom have come to be associated with these places of pilgrimage; (c) to preserve and improve the Shrines and their approaches; (d) to preserve, protect and maintain the existing buildings and structures and to construct new one, whenever found necessary, for housing the estate officers, itinerant Sadhus and poor pilgrims, who cannot afford to have accommodation of their own; (e) to create and set up Hindu religious, spiritual and cultural centers and (f) to do any charitable and religious work, commensurate with the ideals of the Shrines, as may be approved by the Shrine Committee.

5. The movable properties meant for the seva-pujas of the Deities shall on no account be used for private purposes. These cannot be pawned, mortgaged or sold or disposed of under any circumstances, Properties meant for the use and occupation of the Mohunt and the Estate Officers shall not be regarded as private properties and these will be used only by the persons approved by the Shrine Committee.

6. The Mohunt shall be a person belonging to one of the Dasnami sects of Sanyasis introduced by Sree Sankaracharya or from a high caste Brahmin who renounced wordly affairs and detached himself from family ties. The Shrine Committee will take necessary steps in these regards in consultation with the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. The Mohunt must be a celibate or one who has renounced his wife and children and has accepted the life of a sanyashi according to the Vedic rites. He should be well versed in Sanskrit and in Hindu Scriptures and must follow a life of strict integrity, purity and self abnegation. Marriage, sexual exercises or addiction to drinks and narcotics shall be regarded as disqualification inviting immediate removal from the office. No indulgence in the pleasure, of the flesh, sought to be supported by a reference to the Tantric Texts, shall be considered a justification for a departure from the rule laid down above.

7. The Mohunt, whenever necessary or called upon, shall be appointed by the Shrine Committee in consultation with the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar and the best available incumbent should be selected, but once appointed, he shall remain in office till death, retirement or removal.

8. The Mohunt may take disciples, if necessary. Such disciples, if any, properly nominated by the Mohunt will be eligible to succeed to the Gadi (Office), subject to the appointment made by the Shrine Committee with the approval of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar.

9. The preservation of the Shrines, the Deities and the Seva-pujas arc the responsibilities of the Shrine Committee. The Shrine Committee shall conduct, perform and manage the Seva-pujas and other ceremonial worships of the Deities and ceremonial rites and rituals in prevalence over years through the Mohunt in strict compliance with the prevailing customs and traditions. In case of necessity, the Shrine Committee shall have the right to make such arrangement for these functions as may be found expedient in the best interest of the Deities and the Shrines, with prior approval of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar.

10. The Mohunt shall not intermeddle with the administration of the Shrine properties, which shall ordinarily be in charge of Manager appointed by the Shrine Committee, subject to the ultimate control and superintendence of the Shrine Committee. The salaried Manager appointed by the Shrine Committee shall, subject to the superintendence of the Shrine Committee, shall collect rents, grant receipts, pay dues and charges for and on behalf of the Shrines and will also do such other thing or things as may be assigned to him by the Shrine Committee but he shall have no power to sell, exchange, mortgage, lease out or in any way alienate any immovable property belonging to the Shrines. Any such thing or things done by him shall be totally void and without authority.

11. The Mohunt shall have the right of residence in the 'Astanabari' of the Shrines with his disciples. With the approval of the Shrine Committee and in consonance with the dignity of his position, he should receive from the Shrine estates a suitable monthly allowance to be fixed by the Shrine Committee, in consultation with the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. The Shrine Committee shall review his service condition and salary from time to time.

12. The Mohunt will be entitled to half of the 'pronamies' offered to him impersonally by the devotees while the other half shall go to the fund of the Shrines.

13. Subject to the ultimate control of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar the secular affairs of the Shrines, including the general administration and management of the Shrines, the collection of rents and offerings from Charani, Manashi etc. the payment of revenue, rent rates and other public dues, the filing of suits, cases, whenever necessary, the improvement of the Shrine estates etc. shall be the responsibility of the Shrine Committee and shall perform these acts in the best interest of the shrines. The members of the Shrine Committee or their authorized agents, if any, shall have to indemnify the Shrines for any damages or injury caused to the Shrines and the Shrine properties for their acts of willful negligence, malfeasance and malafides. The Shrine Committee, if for any special reason considers it necessary .may authorize any office-bearer of the Committee or any employee of the Shrines to do these things for a specified time and such office bearer or employee shall be responsible and accountable for his work in these regards to the Shrine Committee.

14. The Manager, the Cashier or any other employee, considered necessary for the benefit of the Shrines shall be appointed and dismissed by the Shrine Committee, wherever found expedient in the interest of the Shrines, subject to the approval of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. The employees of the Shrines shall furnish such security as may be fixed by the Shrine Committee. They shall remain accountable for all their acts and works to the Shrine Committee.

15. The Sitakunda Shrine Committee shall be constituted as follows:-

(i) One representative from the Aadhikaris.

(ii) One representative from the Hindu Endowment Committee (Hindu Utsarjan Committee) at Chittagong City.

(iii) Two Hindu residents of Sitakunda and one Hindu resident of Fatikchari to be nominated by the District Judge, Chittagong, Similarly, one Hindu resident of Moheskhali to be nominated by the District Judge, Cox's Bazar.

(iv) One elected Hindu member from each of the District Council / Zila Parishads of Chittagong and Cox’s Bazar, if any, to be nominated by the Chairman of the District Council / Zila Parishad, Chittagong and Cox’s Bazar. If no such person is available, the respective Chairmen of the District Council / Zila Parishad shall be approached by the Shrine Committee to nominate any Hindu of high social standing or a well reputed Advocate to act as a member of the Shrine Committee from this category for a period of 5 years and he shall function as such till the expiry of the term of the Committee.

(v) One representative of the Chittagong City Corporation to be elected by the Hindu Commissioners / Hindu Members, failing which a well reputed and pious Hindu of Chittagong City. to be nominated by the Mayor of Chittagong City Corporation to act as a member of the Shrine, Committee from this category. He shall function as a member of the Shrine Committee till expiry of the term of the Committee.

(vi) Two Hindu representatives from the District Bar Association of Chittagong and one Hindu representative from the District Bar Association of Cox's Bazar to be reelected by the Hindu members under the supervision of the Executive Committee of the said Bar Associations.

(vii) One representative from the Sitakunda Pilgrimage Improvement. Fund Committee (Tirtha Unnayan Committee) Chittagong City.

(viii) One Hindu Judicial Officer from each of the Judgeships of Chittagong and Cox’s Bazar to be nominated by the respective District Judge, failing which, a well reputed Hindu Advocate to be nominated by the respective District Judges.

(ix) One representative of the Bangladesh Sevashram Sangha to be nominated by the Sangha at Chittagong City.

(x) The Mohunt shall be an ex-officio member of the Shrine Committee.

(xi) One representative from Bangladesh Tripura Sannatan Kalyan Parishad to be nominated by that Parishad at Khagrachari Town under the supervision of the Deputy Commissioner, Khagrachari.

(xii) One representative from the Adinath Mandir Sanskar Committee at Maheshkhali, District Cox's Bazar, to be nominated by that Committee under supervision of the Upazila Nirbahi Officer, Moheskhali, Cox's Bazar.

(xiii) One representative from the Hindu teachers of the Chittagong University to be elected by its Hindu teachers under the supervision of the Registrar of the University of Chittagong.

(xiv) One Hindu representative from the Supreme Court Bar Association to be elected by the Hindu members of the said Association under the supervision of the Executive Committee of the Supreme Court Bar Association, Dhaka.

(xv) Two reputed Hindu gentlemen whose service shall be considered beneficial to the interests of the Shrines from any place in Bangladesh to be co-opted by the Sitakunda Shrine Committee, in consultation with the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar.

16. Except the Mohunt, the other members of the Shrine Committee shall hold office for five years. The Shrine Committee shall be reconstituted at the end of every Five years term. There is no bar against re-election of a member any number of times. In case of death, resignation or removal of any member the vacancy shall be filled up by election and the tenure of the new member shall be up to the tenure of the existing Committee. Charge of office shall have to be handed over by the out-going Committee to the newly formed Committee within seven days of its formation.

17. The Committee shall elect a President, a Senior Vice-President, a Vice President, a Secretary and two Assistant Secretaries and they shall discharge their powers and functions as trustees of the Shrines in consonance with religious customs and traditions. Of the two Vice-Presidents, one shall be from Cox's Bazar District and of two Assistant Secretaries one shall be from Moheskhali, Cox's Bazar. There is no bar for a competent person from any of the two Districts to be elected to any of the posts of the Committee.

18. Meetings of the Shrine Committee should be held preferably once in every month and must be held at least thrice in a calendar year at Sitakunda. At least one meeting in a calendar year must be held at Adinath, Moheskhali, Quoram of the meetings will be formed with the presence of one-third members of the Committee. Minutes of the proceedings of such meetings shall be maintained in a bound volume as permanent record.

19. The Sitakunda Shrine Committee shall have the right to appoint pujaries, menials and other employees for the Shrines, which may be found necessary by the Shrine Committee, for smooth and efficient running of the affairs of the Shrines. The terms and conditions of their service, including salary and other benefits, shall be determined by the Shrine Committee in consultation with the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar.

20. The minimum qualification of the Mohunt shall be a Higher Secondary School pass certificate from a recognized Board of the country or equivalent thereto. The Minimum qualification of the Pujari shall likewise be a Secondary School pass Certificate from a recognized Board or equivalent thereto. Preference shall be given to religious title holders such as Kabyatirtha, Smrititirtha etc.

21. The Committee shall have the right to take disciplinary actions against the Mohunt, Pujari and any of the employees of the Shrines, including suspension, termination and dismissal from service on grounds of inefficiency, negligence of duty, insubordination, acting in any manner prejudicial to the interest of the Shrines, indulging in any activity subversive of the state or of discipline, any undignified conduct not commensurate with the high ideals and sacredness of the shrines, malafides and malfeasance. In case of the Temples of Chandranath Dham at Sitakunda and Kanchannath at Fatikchari in the District of Chittagong and Adinath Temple at Moheskhali in the District of Cox’s Bazar the delinquent shall have the privilege of an appeal before the District Judge, Chittagong or the District Judge, Cox’s Bazar, as the case may be, having territorial jurisdiction over the concerned Shrine, property or matter and his decision in the matter shall be final.

22. The President shall be the Executive Head of the Shrine Committee and he shall preside over all Meetings. He shall have the power to direct the Secretary to convene any Meeting of the Shrine Committee in the normal course of firmness and an Emergency Meeting within twenty four hours. If the Secretary for any reason fails to convey such Meeting directed by the President, the latter shall himself convene such a Meeting. In the absence of the President, the Senior Vice-President shall preside over the Meeting and in case the President and Vice-Presidents are not available, any senior member of the Committee shall preside over the Meeting.

23. The Secretary shall be responsible for the over all management of the affairs of the Shrines. The functions of the Assistant Secretaries shall be assigned by the Shrine Committee and they shall be responsible for their activities to the Committee.

24. The Secretary shall take proper steps to prepare and preserve (a) a complete record of all the properties of the Shrines, both movable and immovable, which are presently in possession of the Shrines and (b) and up-to-date record of properties, which are now not in possession of the Shrines but are likely to be recovered from the illegal occupiers by taking appropriate legal or administrative steps. Records of khas lands, lands under permanent tenants and temporarily settled lands belonging to the Shrines should be separately maintained. Movable properties classified as (a) articles belonging to the Deities and (b) articles intended for use of the establishment shall be entered in a stock book, which has to be periodically made up-to-date. He shall also maintain a separate Register of all dues payable by the Shrines as revenue, cess or rent, rates and other public dues, mentioning the exact dates by which these are required to be paid and the dates when these have been actually paid.

25. The Secretary shall arrange for safe custody and proper maintenance and keep all important papers and correspondences relating to the Shrine estates in appropriate files, and shall, for that end, obtain copies of important letters or classified authenticated information from the Offices of the District Judge, Chittagong and the District Judge, Cox’s Bazar and other relevant offices, as the case may be. An authenticated complete list of properties of the Shrines, moveable and immovable, must be promptly supplied to the District Judge, Chittagong and the District Judge Cox’s Bazar for their record.

26. The Secretary shall not sell or otherwise dispose of or alienate any immovable property of the Shrines nor shall he lease out and mortgage any such property under any circumstances. He shall not borrow any money from any person or authority for the Shrines except under a resolution of the Shrine Committee, duly approved by the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. In case of any difference of opinion or decision between them the opinion/decision of the District Judge having territorial jurisdiction over the concerned Shrine, properties or matters shall have primacy. The Mohunt must not borrow at all. Any loan in violation of these conditions shall not be binding upon the Shrines. Neither the Secretary nor the Mohunt or any other person shall have the right to encumber the Estates of the Shrines by way of pawn or mortgage, except on the basis of a resolution of the Shrine Committee passed by a majority of at least two third Members of the Shrine Committee in a specially convened Meeting for the purpose and with and due approval of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. Such extra- ordinary step shall be resorted to only when it is found absolutely necessary in the best interest of the Shrines. Such as the protection, preservation and beneficial advancement of the value of the Shrine Estates.

27. If on account of any emergency and that for the benefits of the Shrines and the Deities, non-permanent settlement of any property of the Shrines for more than three years becomes necessary, it shall be done only under a written resolution of the Shrine Committee adopted by a majority and with the sanction of the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar. Necessary documents shall be executed by the Secretary of the Shrine Committee as the representative of the Deities and the Shrines and the certified copy of such documents must be promptly supplied to the District Judge, Chittagong and the District Judge, Cox’s Bazar for their record. Certified copies of such documents must also be preserved in the office of the Secretary of the Shrine Committee and it shall be produced before the Members of the Committee for their perusal and scrutiny in the next Meeting of the Shrine Committee.

28. The Secretary shall keep regular accounts and preserve all vouchers. The vouchers may be destroyed after three years, if permitted by the Shrine Committee. The Secretary shall maintain accounts in any Nationalized Bank in the name of the Sitakunda Shrine Committee, to be operated by the President, Secretary and Senior Vice-President. Money shall be withdrawn by joint signatures of any two of them.

29. At least a month and a half before the beginning of the Bengali Calendar Year, the Secretary shall prepare a budget of income and expenditure of the Shrines and get it passed by the Shrine Committee. The budget will then be placed before the collegium comprising the District Judge, Chittagong and the District Judge, Cox’s Bazar for their sanction and they may make such modifications thereto as they may consider necessary. In case of any difference of opinion or decision between them, the opinion or decision of the District Judge having territorial jurisdiction over the concerned Shrine or property or matter shall have primacy. The amount allowed for the daily Seva-Pujas of the Deities will be made over to the Mohunt from time to time, and incase of emergency, an extra grant up to Taka five thousand during a calendar year may be paid to him by the Secretary, with the sanction of the Shrine Committee.

30. The Secretary will not generally spend any money in excess of the budget. In case of emergency, he may spend up to amount of Taka 5,000.00 (Five thousand) only in excess or the budget but he must get it approved by the Shrine Committee in the next Meeting of the Committee.

31. Within two months after the end of a Bengali Calendar year the Secretary shall submit accounts of the Shrines for the immediate past year and the accounts must be audited by an Auditor to be nominated by the Collegium comprising the District Judge, Chittagong and the District Judge, Cox’s bazaar. The report of the Auditor is to be submitted to the Shrine Committee and the Committee with its remarks on the report will sent copies of the same for the perusal of the collegium comprising the District Judge of Chittagong and the District Judge Cox’s Bazar. Any direction given on such report by the collegium of District Judges shall be duly respected. The accounts shall have to be passed in the next meeting of the Shrine Committee.

32. The Sitakunda Shrine Committee shall have powers to frame Rules in conformity with the spirit of the Scheme for convenience of administration of the Shrine Estates and for carrying out the work of proper management and development of the Shrines.

33. The Upazila Nirbahi Officers of Sitakunda, Fatikchari and Moheskhali along with the Officers-in-Charge of these three Police Stations shall co-operate with the Shrine Committee in administering, preserving and protecting the properties of the three Shrines and shall provide necessary safety and protection thereto.

34. The Divisional Commissioner, Chittagong through the Deputy Commissioner of Chittagong will supervise and maintain the law and order situation of the Sitakunda "Shiva Chaturdashi and Dol Purnima Mela" festivals while the Deputy Commissioner of Cox's Bazar will supervise and maintain the law and order situation of the "Adinath Shiva Chaturdashi and Dol Purnima Mela" festivals at Moheskhali, Cox's Bazar in consultation with the Sitakunda Shrine Committee.

35. In case of any doubt, dispute or difficulty regarding the true import or interpretation of any of the Clauses of the Scheme, the Mohunt or the Shrine Committee may apply to the collegium of the District Judges for necessary explanation and clarification, directions and guidelines. The explanation, clarification and guidelines given by the collegium of District Judges not being inconsistent with this Scheme, shall be final.

36. The Sitakunda Shrine Committee will arrange Annual Video Conference and will award certificates of honor and Crest / Padak to those distinguished personalities who have made laudable contributions in various fields of the national life or to the advancement of the society and humanity at large.

37. The Mohunt or any member of the Shrine Committee may approach the Shrine Committee to apply to the High Court Division of the Supreme Court of Bangladesh for amendment of this Scheme to meet emergent situations and in case the Committee fails to take necessary action in this regard within 15 days of the written notice served upon the President and the Secretary of the Shrine Committee, he shall have the right to apply before the High Court Division of the Supreme Court of Bangladesh for amendment of this Scheme solely for the benefit of the Shrines but under no circumstances the proposed amendment shall be directed to effect separation of the management of the Shrines, touching its "unitary and integrated character.

18. With the foregoing observations and direction the appeal is liable to be disposed of invoking extra-ordinary power of this Division under Article 104 of the Constitution by reconstituting the Sitakunda Shrine Committee by way of modification and amendment of Scheme for the three Shrines.

19. In the result, the appeal is accordingly disposed of. The Sitakunda Shrine Committee is reconstituted as stated above by way of modification and amendment of the Scheme for the three Shrines.

Ed.

CIVIL APPEAL No. 125 of 2004.

(From the judgment and order dated 31.05.2001 passed by the High Court Division in Civil Rule No. 159(R) of 2001)

Pioneer Garments Limited Vs. Md. Abul Kalam Azad and another, 52 DLR (AD) (2000) 45

Case No: Civil Petition for Leave to Appeal No. 779 of 1998

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 52 DLR (AD) (2000) 45

Case Year: 2000

Appellant: Pioneer Garments Limited

Respondent: Md. Abul Kalam Azad

Subject: Labour Law,

Delivery Date: 1999-8-19

Supreme Court
Appellate Division
(Civil)

Present:
Mustafa Kamal, CJ.
Latifur Rahman, J.
Bimalendu Bikash Roy Choudhury, J.
A MM Rahman, J.
Mahmudul Amin Choudhury, J.

Pioneer Garments Limited represented by its Managing Director
……………….Petitioner
Vs.
Md. Abul Kalam Azad and another
………………...Respondents

Judgment
August 19, 1999.

The Industrial Relations Ordinance, 1969 (XXIII of 1969)
Section 34
The respondent no. 1 is a production manager only in name or whether he is actually working in a managerial capacity is to be determined by the Labour Court i.e. whether the respondent is an officer or worker is a matter of adjudication by the Labour Court and not by the High Court Division…………….(4)

Cases Referred To:
Senior Manager, Dosta Textile Mills Ltd Ranirhat, Feni and ors vs Sudhansu Bikash Nath 40 DLR(AD) 45.

Lawyers Involved:
Shamsul Haque Siddique, Advocate-on-Record— For the Petitioner.
Waliul Islam, Advocate-on-Record — For Respondent No. 1.
Not represented—Respondent No. 2.

Civil Petition for Leave to Appeal No. 779 of 1998.
(From the judgment and order dated 3-5-1998 passed by the High Court Division in Writ Petition No. 1419 of 1990.

JUDGMENT

Mahmudul Amin Choudhury J.

This petition for leave to appeal is against judgment and order dated 3-5-1998 passed by a Division Bench of the High Court Division in Writ Petition No-1419 of 1990 discharging the Rule Nisi.

2. The short fact required for the disposal of this matter is that, respondent No. 1 was appointed a Production Manager of the petitioner-company who joined the company as such on 3-11-1994 and his case is that though his designation was Production Manager but he was not given any managerial or supervisory responsibilities and his duty was confined to physical and manual kind of works. It is his further case that he was forced to go on leave on 10-6-1985 which was extended upto 23- 6-1985 and while on leave he was served with a notice to show cause by the petitioner-company on 16-6-1985 on various charges and when the reply was submitted he was allowed to resume his duties on 7-7-1985. This respondent worked for the months of October and November, 1985 but was given pay of 1/2 of the month of October. He then demanded his full pay for the aforesaid two months and on being furious the petitioner obstructed the respondent in his duties with effect from 1-12-1985 though he reported for duty on every day. Thereafter respondent No.1 filed IRO case No. 2 of 1986 in the Third Labour Court of Dhaka for directing the petitioner to allow him to resume his duties and pay his arrear salary as admissible.

It appears that before the Labour Court the petitioner entered appearance and filed written objection denying the material allegations and further alleging that the case filed is not maintainable as respondent No. 1 was appointed as production manager in the factory at a monthly salary of Taka 4,500.00 which was subsequently raised to Taka 6,000.00 and while performing duties as such he misappropriated valuable properties of the petitioner-company for which he was directed to show cause by a letter dated 16-6-1985 and a lenient view was taken against him but he continued to commit mischief resulting in loss to the company and he absented himself from his duties without prior permission from the petitioner.

Learned Third Labour Court, Dhaka allowed the aforesaid IRO case ex parte by judgment dated 28-3-1988 and directed the petitioner to pay all arrear salaries of respondent No. 2 within 60 days from the date of judgment and also directed to allow him to resume his duties in the petitioner-company.
On being aggrieved by this judgment of the Labour Court the petitioner moved the High Court Division under section 102 of the Constitution of the People’s Republic of Bangladesh and obtained Rule Nisi. But the same was subsequently discharged by the aforesaid judgment.

Learned Advocate appearing on behalf of the petitioner submits that respondent No. 1 was appointed as Production Manager in the petitioner- company and as the job was of managerial and supervisory nature, the Labour Court committed illegality and wrong in entertaining the IRO case. It is submitted that he was an officer, not a worker. It is submitted that any workman may apply before the Labour Court for the enforcement of any right granted to him by or under any law but in the present case as respondent No. 1 was not a labourer he cannot invoke the jurisdiction of the Labour Court under section 34 of the Industrial Relations Ordinance. He submits that even respondent No. 1 while giving reply to the notice to show cause has stated that his duty is to manage the factory. In the notice also it has been mentioned that respondent No. 1 while in the company acted in the administrative and supervisory capacity. It is submitted that both the Labour Court as well as the High Court Division failed to appreciate this aspect of the matter.

3. Entering Caveat the learned Advocate for respondent No.1 submits that mere assertion that respondent No. 1 is not a Labourer but an officer working in the management cannot be a ground for rejection of the IRO case as onus lies heavily in the petitioner to prove that which they failed before the Labour Court. They even failed to produce any paper before the High Court Division in support of their contention. In support of his submission the learned Advocate placed reliance on the case of Senior Manager; Dosta Textile Mills Ltd. Ranirhat, Feni and ors vs. Sudhansu Bikash Nath reported in 40 DLR (AD) 45. It has been held in this decision that mere designation is not sufficient to indicate whether a person is a ‘worker’ or an ‘employer’, but it is the nature of the work showing extent of his authority which determines whether he is a worker or employer.

4. It is the case of the respondent that though he was appointed as Production Manager yet the nature of his duty was manual and physical. Nothing contrary has been produced before the Labour Court by the petitioner who filed a written statement but on the date of hearing failed to appear as result of which the case was allowed ex parte. The High Court Division it appears found that in writ jurisdiction it cannot enter into the factual aspect of the case i.e. whether respondent No.1 is a Production Manager only in name or whether he actually working in a managerial capacity. This fact is to be determined by the Labour Court and not the High Court Division. It has been held that whether the post in question is the post of an officer or a worker or workman is purely a question of fact which ought to have been agitated before the Labour Court. The High Court Division rightly found that the Labour Court had jurisdiction to entertain the case when there was no material before it supporting the petitioner’s contention.

5. We have considered the submission made by the learned Advocates of both sides and in view of the aforesaid decision of this Division and in view of the decision of the High Court Division we find no merit in this petition.

The petition is therefore dismissed.

Ed.

Planters (Bangladesh) Ltd. Vs. Mahaluxmi Bank Ltd. (in liquidation) and others, 37 DLR (AD) (1985) 129

Case No: Civil Appeal No. 2 of 1984

Judge: F.K.M.A. Munim,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Syed Ishtiaq Ahmed,,

Citation: 37 DLR (AD) (1985) 129

Case Year: 1985

Appellant: Planters (Bangladesh) Ltd.

Respondent: Mahaluxmi Bank Ltd.

Subject: Words and Phrases,

Delivery Date: 1984-2-9

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim, CJ.
Shahabuddin Ahmed, J.
Chowdhury ATM Masud, J.
Syed Md. Mohsen Ali, J.

Planters (Bangladesh) Ltd.
.............Appellants
Vs.
Mahaluxmi Bank Ltd. (in liquidation) and others
............Respondents

Judgment
February 9, 1984.

Words and Phrases
Nobody can be allowed to take advantage of his own fault.
The Defendant no. 2 himself being Managing Director of the Defendant Company and at the same time Director of the Plaintiff Bank and the statement by him before Court of Law about liability of the company towards the Plaintiff Bank and admission of such liability burdens the defendant to the agreed amount of money. In the manner aforesaid if defendant no. 2 committed fraud on the defendant Company, actions must have been taken by the Managing Director for committing fraud upon it. Nobody can take advantage of his own fraud.

Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate (Habibul Islam Bhuiyan, Advocate with him) instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Appellant.
Rafiqul Huq, Senior Advocate instructed by Abu Backkar, Advocate-on-Record—For the Respondent No. 1.

Civil Appeal No. 2 of 1984.
(From the judgment and order dated 20.3.83 passed by the High Court Division, Dhaka in appeal No.11 of 1967.

JUDGMENT

Fazle Manim CJ.

1. This appeal arises from Appeal No.11 of 1967 disposed of by the High Court Division on 20 March 1983.

2. Respondent No.1, Mahaluxmi Bank Limited (in liquidation) instituted Mortgage Suit No. 26 of 1960 in the 1st court of Subordinate Judge, Chittagong against respondent No. 2, Hill Top Tea Company Limited (in liquidation) for foreclosure of mortgage on the total claim of Tk.6,40,000/-. Under the provisions of the Banking Companies Ordinance, 1962 the suit was transferred to the Dhaka High Court. Appellant, a public limited company, purchased the entire assets of the defendant company in 1959 and was, therefore, joined as a defendant in the suit.

3. On 29 March, 1927 one Sarada Kripa Lala sold the suit properties to Dr. Beni Mohan Das who mortgaged them to the plaintiff-Bank on 31 March, 1927 for Tk. 75.000/- only and the latter transferred his rights, title and interest in the suit properties to Rangapani Tea Co. Ltd. Without mentioning the mortgage the transferee company and the mortgagor sold their right, title and interest in the mortgaged property to the plaintiff-Bank, on 28 August, 1935 for Tk.1,25,000/-. The plaintiff Bank which was put in possession of the properties invested further sums of money thereon. Defendant Hill Top Tea Company Limited purchased the properties with all their Machineries for Tk. 4, 00,000/- which was borrowed from the Model Bank Limited. The defendant company approached the plaintiff Bank for loan. One S.N. Mookerjee who was Managing Director of the defendant company and also a Director of the Plaintiff Bank succeeded in obtaining the loan of Tk. 400,000/- from the Bank by depositing the title deeds to the Bank, as a security against, the loan. Under section 114 of the Companies Act, 1913 the mortgage was registered. Having failed to recover the principal or interest, accruing thereon amounting to Tk. 2,40,000; the plaintiff Bank instituted the aforesaid suit,

4. The Hill Top Tea Company Limited filed a written statement contending that as no consideration was passed nor any payment was made mere depositing of title deeds did not create any mortgage. No debt, therefore, actually existed. Further, the plaintiff Bank being pressured by the Reserve Bank of India took resort to some fraudulent devices and created the defendant company to which the tea estate was sold. As a result of an understanding between the Directors of the plaintiff Bank and the defendant company and in collusion with the Directors of the Model Bank Limited, Calcutta, a cheque for Tk. 400,000/- was drawn by it upon the Model Bank Limited, Calcutta in favour of the Mahaluxmi Bank, Calcutta. According to the defendant-company the whole transaction was only but a paper transaction and the Bank manipulated its books and accounts in order to show payment of the aforesaid sum.

5. By His judgment dated 22-6-67 the learned Judge of the Dhaka High Court decreed the suit. An appeal, being Appeal No.11 of 1967, was filed by the petitioner before a Division-Bench of the Dhaka High Court which allowed the appeal upon setting aside the trial court's judgment and decree. Plaintiff-respondent No. 1 obtained leave from this Court to consider whether a judgment of reversal could be passed taking into consideration the entries which were not considered by the trial court as those pasted papers could not be opened and without considering in detail all the evidences on record relied on by the learned Single Judge. After hearing the parties in Civil Appeal No.129 of 1977 this Court remanded back the case to the High Court Division to dispose of the appeal in the light of observations made in the judgment. After remand so ordered the appeal was heard by a Bench of the High Court Division which decreed the suit. By their judgment dated 20-3-82 the High Court Division affirmed the judgment and decree passed by the learned Single Judge.

6. The appellant moved this Court and obtained leave to consider whether the learned Judges of the High Court Division, in view of the evidence produced by the parties correctly arrived at the finding that the defendant-company owed the plaintiff Bank a sum of Tk. 4,00,000/- which it   had obtained by mortgaging the suit property with the plaintiff Bank.

7. To have a better look at the substance of the contentions advanced before us now by the respective Counsels of the parties, it may well be that some of the observations made by this Court (in Civil Appeal No.129 of 1977 disposed of on April 10, 1978) before remanding the case to the first appellate court may be seen. As previously the first appellate court had dismissed the suit of the plaintiff Bank for the recovery of the sum owed to the Bank by the defendant-appellant, the plaintiff Bank appealed to this Court against its judgment. This Court's observations were as follows:

"The learned Judges of the Division Bench failed to consider   the   detailed discussion of the evidence on record by the learned Single Judge and only on noticing the entry at page 163 of the cash book which was detached from its pasted condition, concluded that if the learned Judge had noticed the entry of those pasted pages he would have reached a different conclusion. The learned Judges of the appellate Court without discussing the evidence on record reversed the finding of the Trial court and as such it can not be said to be a proper judgment of reversal. The appellate court's reversal of the finding of the trial Judge and holding that entries at the pasted page 163 were conclusive in disregard of the other evidence which formed the basis of the finding of the learned Single Judge is wrong and cannot be sustained.

(Another aspect of the case was missed by both the Courts below. The written statements of respondent No.1 show that respondent No.1 was trying to get the benefit of its own fraud. The lower appellate court wrongly shifted the onus of proving genuineness of the transaction upon respondent No.1 to prove the fraud as set up by it.")

8. In disposing Appeal No.11 of 1967 on March 20, 1983 the learned Judges of the High Court Division in repelling the contentions of the defendant-appellant company that certain paper transactions relating to the amount loaned in the name of defendant No.2 were shown but actually no amount was paid by the plaintiff Bank so as to create any liability in the name of defendant No. 2, the learned Judges observed:

"It however seems from the case of the defendant in the previous suit also that for amount of Rs. 4,00,000/- the defendant created an equitable mortgage in respect of the defendant Tea Estate in favour of the Model Bank who in its turn created a second mortgage in favour of the plaintiff Bank. So, the plaintiff paid that amount and the property was mortgaged with the plaintiff Bank The same position is accepted by the then Managing Director of the defendant Company that the Bank was indebted to the plaintiff for the said amount. In that view of the matter it is not very important as to how the Model Bank was paid back the money which the plaintiff gave to the defendant No.2. But the fact remains that the mortgage debt of the .Model Bank was satisfied with the money that was taken from the plaintiff-Bank. In that view of the matter the plaintiff having filed the documents as mentioned above to prove the debt and the defendant having not been able to prove that fraud was perpetuated in showing a loan on paper only though actually no loan was advanced by the plaintiff to the defendant No.2. We do not find anything to interfere with the judgment and decree passed by the learned Single Judge of this Court."

9. In accepting the submissions made by the Counsel of the plaintiff Bank that the evidence produced on its behalf were admissible under section 65 of the Banking Companies Ordinance, section 4 of the Bankers Evidence Act, 1891 and the entries in the books of the plaintiff Bank regularly kept in course of business were relevant and also that D.P. notes, the resolution of the defendant company, Ext.3, letter Ext.3 (b),certificate under section 114 of the Companies Act, original Title deeds Exts.1 and 2, passbook and the balance sheet of the defendant Company which were filed by the plaintiff-Bank, the learned Judges of the High Court Division arrived at the finding that the defendant took a loan from the plaintiff Bank and was, therefore, liable to pay the same to the Bank. The judgment and decree passed by Abu Md. Abdullah, J. in Transferred Suit No. 8 of 1965 (arising out of Mortgage Suit No.26 of 1960) was affirmed by the trial court.

10. Syed Ishtiaq Ahmed, Counsel for the defendant appellant, made strenuous efforts to prove that no loan was ever advanced by plaintiff Bank to the defendant Hill Top Tea Company Limited and what appears from the Bank's papers and entries therein and also title deeds alleged to be deposited with the plaintiff Rank were all collusive and fraudulent. There was no liability of the Defendant Company for the payment of the alleged lean. What appear from the papers of the plaint ff Bank were mere manipulations for the purpose of showing the loan and the mortgage deposit of title deeds. The learned Counsel particularly stressed that such manipulations were evident from the pasting in the Bank's clean cash book, Ext.5. Apart from the legal effects of the deposit of title deeds and other relevant papers referred to above showing the advance loan to the defendant company by creating a mortgage of their property, vide, deposit of title deeds with the plaintiff Bank, which have been discussed and considered by the learned Judges of the High Court Division, they had considered at length the arguments relating to the pasting in the aforesaid Exts. This   appears from their observations:

''It is further contended that there being pasting in the Clean Cash Book Ext. 5 and Ext 'A' the entry of said amount could not be taken as genuine. With regard to the pasting in the-Ext.5 an explanation was given by the P.W.1 to the effect that it was done by the Binder the Court tried to unfold it but noted that it could not be done without causing damage to the book itself. Ultimately it was unfolded and we find that on the pasted page the entry on the page previous to the pasted page the account that was noted in the clean cash book was dated 29th June, 1948 on the next page i.e. the pasted page we find, that the account entered was dated 10th August, 1948. On the next page, the account was dated 29th June, 1948. The clean cash books were entered not at the time when transactions were being made. These are entries effected subsequently at subsequent intervals. These are copies from rough cash book. The entry at page 163 also finds place at page 195 and we find that the same entries at page 163 have been entered at page 196 with minor discrepancies with regard to total. So this entry in page 163 cannot be a fabrication but it is merely a mistake which occurred in the clean cash book at the time of copying it from the Kuchha register. Of course, the explanation that has been given by the P.W.1 has been given without looking into the contents of the pasted page and as such he made certain statements which were incorrect and the learned Single Judge did not accept the said explanation. We have considered the said entry and from this entry we cannot come to a conclusion that this pasting materially affected the result of the case, because the pasting page finds place in some other page of the clean cash book i.e. at page 196."

11. The clean cash book was also produced for our examination. We are also satisfied that there is nothing amiss therein excepting what has been noted in the aforesaid observations of the learned judges. No manipulation appears to have been made by the plaintiff Rank regarding the loan amount recoverable from the defendant company.

12. Whatever little discrepancies were introduced, they did not obliterate the broad fact of the advance of the loan amount by the plaintiff Bank, that being the main question for determination in this appeal, these discrepencies may even be due to chaotic position in which the Bank was placed after liquidation, taking advantage of which some members of the clerical staff may have tried to attempt their hands in tampering with the pages of the clean cash-book. It may, however, be mentioned that there is no positive evidence for this supposition.

13. The argument that no amount was actually paid by the plaintiff Bank would seems more surprising in view of the fact that title deeds were deposited with the Bank along with all other usual documents which were executed by the predecessor of the defendant company for securing the loan amount. To this must also be added the regular entries in the ledger book and the clean cash book of the plaintiff Bank in respect of this loan. In this context, the attempt to disprove the actual payment appears like trying to disprove something which is obvious and a fact that cannot be negatived by any means. To prove that no cash amount was at all paid by the plaintiff Bank for payment to the Model Bank, it was stated that, firstly, no permission was taken from the authority to transmit this amount to Calcutta which is in a different state and secondly, it was stated to have been deposited in the Model Bank on 30th, Jane, 1948 which, was a Bank holiday.

14. Mr. Rafiqul Huq, Counsel for the respondent Bank gave satisfactory explanations on both these points. It was not necessary to obtain permission of the State Bank to transmit to India at that time since the foreign exchange regulations were introduced later. Next, though all formal banking transactions were closed on 30th June since it was a banking holiday, no Bank was actually closed but remains open for the purpose of closing the account of the year. It was difficult on the part of the appellant's Counsel to refute this explanation.

15. As to payment of the actual amount of Taka 4 lacs, there is even the admission of defendant No.2 who is the Managing Director of the defendant company. In a previous suit, being Money Suit No.64 of 1950, he, in his deposition, stated that “the defendant company is liable for Rs.4 lacs on one account and this account is still outstanding with interest”. This admission refers to the loan advanced by the plaintiff Bank which is the subject matter of the present dispute. It may be mentioned that defendant No.2 was at the relevant time also one of the Directors of the plaintiff Bank. There is no reason why defendant No.2 who held the position of a Director in the plaintiff Bank as well as the defendant company, should make a false statement regarding the liability of the defendant company. Even assuming it to be false, why the defendant company did not take any action against defendant No.2 for making such a false statement in a Court of law as well as saddling it with liability for payment of the aforesaid sum to the plaintiff Bank. Also, in such circumstances when the defendant company allowed its Managing Director, defendant No. 2, to make a solemn statement admitting its liability to the plaintiff Bank, it does not lie in its mouth not to say that defendant No. 2 perpetrated a fraud upon itself. If it is a fraud, it was perpetrated at its own instance since the statement was made by nobody else than its own Managing Director and it did not take any action against him for committing the fraud. As is well-known, nobody can be allowed to take advantage of his own fraud. It is also not understood nor any satisfactory explanation was given as to why defendant No.2 should make such a fraudulent statement creating liability for the defendant company of which he was the Managing Director. As to presumptions to be drawn under the provisions of section 118 of the Negotiable Instruments Act, 1881 regarding the payment of consideration from the creation of any negotiable instrument when there is no other evidence to the contrary and also presumption available under section 65 of the Banking Companies Ordinance, 1962 and section 4 of the Bankers Books Evidence Act, 1891, right conclusions have been drawn by the learned Judges of the High Court Division. We find no reason to differ with them.
For the reasons stated above, the appeal is dismissed with costs. Decretal amount will be paid within three months; in default decretal amount will be paid with interest at the rate of 15% till realisation of the amount.

Ed.

Pradip Kumar Chakraborty Vs. Jamila Khatun Bibi, 51 DLR (AD) (1999) 156

Case No: Civil Appeal No. 36 of 1996

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Mr. SS Halder,,

Citation: 51 DLR (AD) (1999) 156

Case Year: 1999

Appellant: Pradip Kumar Chakraborty

Respondent: Jamila Khatun Bibi

Subject: Hindu Law, Family Law,

Delivery Date: 1999-5-5

Supreme Court
Appellate Division
(Civil)

Present:
Mustafa Kamal J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AM Mahmudur Rahman J

Pradip Kumar Chakraborty
…………….Appellant
Vs.
Jamila Khatun Bibi & ors
…………………Respondents

Judgment
May 5, 1999.

Hindu Law
In the prevailing circumstance most of the shebaits are not available due to death or leaving the country and most of whom available are dormant and not been taking any interest, in that position a devoted pujari and worshipper of the deity who offered himself as a next friend can not be precluded from representing the deity……..(17)

Cases Referred to-
Pran Gopal Jiew Bigraha vs. Malika Begum &others, 25 DLR 387; Kishore Joo vs. Guman Behari Joo Deo, AIR 1978 All 1; Radhabai vs. Chimnaji, (1878) ILR 3 Born 27; Zafaryab Ali vs. Bakhtawar Singh (1883) ILR 5 All 497; Chidarnbaranatha Thambiran vs. PS Nallasiva Mudaliar, AIR 1918 Mad 464; Dasondhay vs. Muhammad Abu Nasar (1911) ILR 33 All 660 at page 664 (AIR 1917 Mad 112) (FB); Radha Krishnaji vs. Rameshwar Prasad Singh, AIR 1934 Pat 584; Manmohan Halder vs. Dibbendu Prosad Roy, AIR 1949 Cal 199; Pramatha Nath Mullick vs. Pradyunrnna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139); Kanhaiya Lal vs. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198); Bishwanath vs. Thakur Radha Balladhji, AIR 1967 (SC) 1044; Tarit Bhusan vs. Sreedhar Salagram, 45 Cal. WN 932: (AIR 1942 Cal 99); Sreedhar Jew vs. Kanto Mohan, 50 Cal WN 14: (AIR 1947 Cal 213); Sushama Roy vs. Atul Krishna Roy, 59 Cal WN 779: (AIR 1955 Cal. 624); Sri lswar vs. Gopinath Das, AIR 1960 Cal 741.

Lawyers Involved:
SS Halder Senior Advocate, instructed by SR Karmakar, Advocate-on-Record—For the Petitioner
MA Wahab Mia, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record —For the Respondent.

Civil Appeal No. 36 of 1996
(From the judgment and order dated 28 July 1993 passed by the High Court Division, Dhaka in Civil Revision No. 7343 of 1991).

JUDGMENT

Bimalendu Bikash Roy Choudhury J.

1. The decision in this appeal turns upon the question whether any person other than a she bait can prosecute a suit as a next friend of the deity.

2. The question has arisen in this way:
There is a temple where the deity of Sree Dasha Bhuja Mata, commonly known as Sree Sree Dhakeswari Mata, had been installed from the days of antiquity. It lies within the city of Dhaka. The votaries of the deity are the members of the Hindu community at large spread all over the country.

3. The said deity sued forma pauperis through her managing shebait and a next friend, Hem Chandra Chakraborty who in his turn figured as plaintiff No.2 for declaration of her title to item No. 1 of the ‘ka’ schedule of the plaint, for recovery of possession in item No. II thereof and for mesne profits etc on the allegations, inter alia, that Paramananda Giri Goshwami who was one of the dormant shebaits of the deity executed and registered on 22 August 1952 a deed of Kayemi Mokarari Mirashj Patta in favour of one Nasu Mia, predecessor of defendant Nos. 1-7 purporting to lease out the suit property described in item No.1 of schedule ‘Ka’ to the plaint. The lease, not being for legal necessity or for the benefit of the deity was not binding on her and the deity was still the owner thereof. It was further alleged that Hem Chandra Chakraborty had alone been looking after the affairs of the deity and performing her seva puja, but most of his co-shebaits had left for India and those who were still residents at Dhaka had not been taking any step to recover the said endowed property, in order to safe-guard the rights of deity.

4. During the pendency of this suit Hem Chandra Chakraborty died on 7 September 1981 leaving behind his heirs. From amongst them his son Pradip Kumar Chakraborty along with predeceased son’s son and widow made an application for substitution of Pradip Kumar Chakraborty in place of Hem Chandra Chakraborty as the next friend of the deity and for substitution of all of them in place of the deceased Hem Chandra Chakraborty, plaintiff No.2.

5. By an order dated 17 July 1991 the learned Subordinate Judge rejected the prayer for substitution of Pradip Kumar Chakraborty as the next friend of the deity while allowing substitution of the heirs in place of the deceased plaintiff No.2.

6. Being aggrieved by this order Pradip Kumar Chakraborty moved the High Court Division in revision, Civil Revision No. 7343 of 1991. A learned Single Judge of the High Court Division, by judgment and order dated 28 July 1993, discharged the Rule holding that in the instant case Hem Chandra Chakraborty is shown to be litigating as the Shebait in his official capacity and if this claim to the office as Shebait falls through, his heirs are not entitled to be substituted. Hem Chandra Chakraborty having no 157 right to represent the deity, his heirs, on his death cannot succeed or be substituted in that capacity as the plaintiff in the suit”.

7. Against the said judgment of the High Court Division Pradip Kumar Chakraborty has preferred this appeal for the deity with the leave of this Court.

8. SS Halder, learned Counsel for the appellant, submits that both the trial Court and the High Court Division upon a misconception as to the status of the deity and the prayer for her representation in the suit on the death of Hem Chandra Chakraborty illegally disallowed the prayer of Pradip Kumar Chakraborty to represent the deity as a next friend. He submits that both the Courts below failed to realise that in a case of appointment of a next friend of a deity upon the death of the existing shebait /next friend any person interested in the endowment for the deity could be considered in the absence of a managing shebait or a shebait acting adversely to the interest of the deity.

9. There are a number of illuminating decisions of the superior Courts of this sub continent over the subject. In Sri lswar vs Gopinath Das, AIR 1960 Cal 741, the Calcutta High Court had the occasion to consider a case of similar nature. After review of a considerable number of cases Mallick, 3 speaking for the Court said at P. 748:

“According to Hindu Law, shebait represents the deity and he alone is competent to institute a suit in the name of the deity. In exceptional circumstances, however, where the shebait does not, or by his own act deprives himself of the power of representing the deity, a third party is competent to institute a suit in the name of the deity to protect the debutter property.”

He further said:

“As I understand the law, the person entitled to act next friend is not limited to the members of the family or worshiper, Anybody can act as such next friend, but the law requires that anybody other than shebait instituting a suit in the name of the deity must be appointed as such by an order of the Court. That is the law as recognised by this Court. Reference may be made to the case of Tarit Bhusan vs. Sreedhar Salagram, 45 Cal. WN 932: (AIR 1942 Cal 99), Sreedhar Jew vs. Kanto Mohan, 50 Cal WN 14: (AIR 1947 Cal 213), and Sushama Roy vs. Atul Krishna Roy, 59 Cal WN 779: (AIR 1955 Cal. 624)”

10. In fact, much earlier, the Judicial Committee of the Privy Council pronounced in Pramatha Nath Mullick vs. Pradyunrnna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139) and Kanhaiya Lal vs. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198) that apart from a shebait, under certain circumstances, the idol can be represented by disinterested persons.

11. In Bishwanath vs. Thakur Radha Balladhji, AIR 1967 (SC) 1044 the Supreme Court of India, while considering whether a mere worshipper can represent the idol when a shebait acts adversely to the interest of the idol, has this to say:

“The question is, can such a person represent the idol when the shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle, we do not see any jurisdiction for denying such a right to the worshipper. An Idol is in the position of a minor and when the person representing it leaves in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the shebait’s duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol."

12. Their Lordships for such view have relied upon the decisions in Radhabai vs. Chimnaji, (1878) ILR 3 Born 27, Zafaryab Ali vs. Bakhtawar Singh, (1883) ILR 5 All 497, Chidarnbaranatha Thambiran vs. PS Nallasiva Mudaliar, AIR 1918 Mad 464, Dasondhay vs. Muhammad Abu Nasar, (1911) ILR 33 All 660 at page 664 (AIR 1917 Mad 112) (FB), Radha Krishnaji vs. Rameshwar Prasad Singh, AIR 1934 Pat
584 and Manmohan Halder vs. Dibbendu Prosad Roy, AIR 1949 Cal 199 in addition to those of the Privy Council mentioned hereabove.

13. In this context, reference may also be made to the following observations of Sapra, J in Kishore Joo vs Guman Behari Joo Deo, AIR 1978 All 1:

“It was submitted that it was only the Maharaja of Charkhari who, in his capacity as a Shebait could file the suit on behalf of the Idol. It is settled law that normally it is the shebait alone who can file a suit on behalf of the Idol, but it is also equally well settled that in exceptional circumstances persons other than a shebait can institute a suit on behalf of an Idol”.

14. For this view the learned Judge got inspiration from the following excerpt of BK Mukherjea book on “The Hindu Law of Religious and Charitable Trust”:

“The deity as a juristic person has undoubtedly the right to institute a suit for the protection of its interest. So long as there is a shebait in office, functioning properly, the rights of the deity as stated above practically lie dormant and it is the shebait alone who can file suits in the interest of the deity When, however, the shebait is negligent or is himself the guilty party against whom the deity needs relief, it is open to worshipper or other persons interested in the endowment to file suits for the protection of the debutter. It is open to the deity also to file a suit through some person as the next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may not unoften be a person who as a prospective shebait or a worshipper is persona1ly interested in the endowment”.

15. Our High Court Division referring to several decisions of Indian jurisdiction held in Pran Gopal Jiew Bigraha vs Malika Begum &others, 25 DLR 387:

“On the authorities cited above, I can safely conclude that a person other than the Shebait or a member of the family, if the Deity is private but worshipper can apply to the Court for being appointed as the next friend or guardian ad-litem of the Deity as the case may be, to protect the interest of the Deity.”

16. We fully endorse the above views and take them as settled principles of law.

17. In the instant case, most of the shebaits have already left the country or have since died. A few who are in this country are dormant and have not been taking any interest in the cause of the deity and play its next friend. In the circumstances Pradip Kumar Chakraborty who is admittedly a pujari and a worshipper of the deity and has offered himself to act, as next friend of the deity can by no means be precluded from representing the deity as such.

Accordingly, the appeal be allowed and the impugned orders of the Courts below be set aside. The prayer of Pradip Kumar Chakraborty to represent the deity as next friend in place of the deceased be allowed. No order as to costs.

Ed.

Pragati Industries Ltd. Vs. A. K. M. Mafizur Rahman, 2 LNJ (2013) 541

Case No: Writ Petition No. 4605 of 2008

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mr. Sk. Zulfiqur Bulbul Chowdhury,,

Citation: 2 LNJ (2013) 541

Case Year: 2013

Appellant: Pragati Industries Ltd.

Respondent: A. K. M. Mafizur Rahman

Delivery Date: 2011-03-08

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Abdul Awal, J.
And
M. Moazzam Husain, J.

Judgment
08.03.2011

Pragati Industries Ltd.
..... Petitioner
-Versus-
A. K. M. Mafizur Rahman and others
..... Respondents

Bangladesh Service Rules.
Rule 9
In order to prevent manifest injustice from being perpetuated the entry of date of birth in the service book may be corrected, provided such correction stands the test of reasonableness.
Mere entry of the date of birth in the service book/register irrespective of its proven infirmities and reasonable nexus to the actual date of birth borne out by irrefutable evidence cannot be trea-ted as a cast-iron rule to be followed in all circumstances. In order to prevent manifest injustice from being perpetuated the entry may be corrected, provided that such correction stands the test of reasonableness in terms of chain reaction and other incidents of it in the service set up. ... 24

Industrial Relations Ordinance, (XXIII of 1969)
Section 34
Undisputable date of birth of a worker constitutes right guaranteed under law contemplated under section 34 of the Industrial Relations Ordinance, 1969, and is enforceable thereunder. Date of birth of a worker borne out by a document like the Secondary School Certificate remaining unassailed in terms of credibility, constitutes, in fit circumstances, right guaranteed or secured to him by or under the law, award or settlement as contemplated under section 34 of the Industrial Relations Ordinance, 1969 and is enforceable under the said section of law....25

Mozammel Haque Chowdhury Vs. Chairman, Labour Court & another, 10 BLC 485; Chair-man Power Development Board and others Vs. Chairman, Labour Court, Khulna, 1981 BLD (AD)59; Abdul Hamid Vs. Chairman,Second Labour Court, 29 DLR 295; Banglad-esh Marine Fisheries Association Vs. Bangla-desh 52 DLR 274 Ref.

Mr. Sk. Zulfiqur Bulbul Chowdhury

......For the petitioner

No one appears

...…For the respondent

Writ Petition No. 4605 of 2008

JUDGMENT

M. Moazzam Husain, J:

This rule at the instance of the second- party employer, was issued calling in question the judgment and order dated 29.5.2008 passed by the Labour Appellate Tribunal, Dhaka in Appeal No.2 of 2008 affirming those of the First Labour Court, Chittagong in IRO Case No. 33 of 2006.

Facts leading to this rule, briefly stated, are that the first party respondent filed the IRO case under section 34 of the Industrial Relations Ordinance, 1969, (“the IRO” for short) in the First Labour Court Chittagong, alleging, inter alia, that he is a permanent worker serving in the petitioner-company. His service record is satisfactory and he was elected CBA president on several terms. The petitioner by a general notification issued vide Memo dated 29.12.2005 brought, amongst other things, to the notice of the first party respondent an incorrect date of birth against his name which virtually curtailed around two years time from the length of service he is entitled to.

Further case of the first party respondent is that he submitted SSC certificate and a testimonial along with the application for employment. According to SSC certificate his date of birth is 15.6.1952. Therefore, there is no scope of dispute or confusion about his date of birth. As per section 14A of the Public Corporation (Management Coordination) Ordinance, 1986, shortly, “the Ordinance of 1986” the retiring age of the workers of all public corporations and allied bodies was enhanced from 57 to 60 years. In view of the said Ordinance the respondent as a worker is entitled to retire on completion of 60 years of his age. And accordingly date of his retirement becomes due on 15.6.2012. The first party respondent sent by registered mail a representation dated 27.7.2006 addressing the petitioner enclosing copies of all the necessary papers and documents requesting correction of the official records containing disputed entry as to his age. The petitioner received the application but did not take any step nor was the respondent informed about the fate of his petition. The respondent was not allowed to see for himself his service book/register either.

The petitioner as second party contested the case by filing written objection stating, inter alia, that the respondent made an application for employment on 27.8.1974. He was appointed as Mechanical Helper on 01.10.1974. At the time of making application the respondent did not file his SSC certificate. He rather mentioned in his application that he was 24 years of age. On that basis his date of birth was noted in his service book as 27.8.1950. The date of birth continued in the successive voters’ lists of the office. The respondent was promoted to the post of ‘Master Technician’ on 30.6.1985. The post of Master Technician is included in the national pay scale and none serving in the national pay scale can be a ‘worker’ under the law.

As per rule 9 of Bangladesh Service Rules (hereinafter referred to as “the BSR”) the date of birth declared by the public servant in his/her application for service is binding on the applicant for the purpose of calculation of the date of retirement. The respondent declared his age as 24 years in his application. On that basis his date of birth squares with 27.8.1950. The respondent not being a worker the extended age of retirement provided by the Ordinance of 1986 is not applicable to him. As an employee under the national pay scale his service is invariably limited to 57 years. Moreover, sub-sections (1) and (2) of section 28 of the present Bangladesh Srama Ain, 2006, shortly, “Srama Ain,” have fixed the retirement age of the workers at 57 years to be calculated from the date of birth declared in the application for the job. Thus, there is no scope for correction of date of birth declared at the time of entry into service or entitlement of extended age of retirement.

The Labour Court took up the case for trial. The first party respondent examined himself as PW.1 and, among other things, he proved his SSC certificate (Ext.1), passport (Ext.2), Freedom Fighters’ Certificate (Ext.3),-all testifying his date of birth as claimed by him. He also proved the list of LPR-2007 dated 02.02.2007 (Ext.6) issued from the office of the petitioner showing 26.8.2007 as his date of retirement.

The petitioner as second party did not examine any witness nor did produce any papers or documents in support of its case. An inquiry report by Comilla Education Board was, however, produced before the court at the instance of the petitioner which instead of helping the petitioner company supported the case of the respondent. Trial Court allowed the case with the observations, inter alia, that the complainant is a worker within the meaning of section 2(v) of the Employment of Labour (Standing Order) Act, 1965 as well as section 2(XXVIII) of the IRO. He passed his SSC Examination six years before his entry into service and the SSC certificate testifies his date of birth as claimed. Nothing to the contrary is proved by the second party. Trial court further found that the fist party respondent comes within the definition of worker under Ordinance of 1986. He, in that sense, is entitled to enhanced age of retirement.

On appeal the Appellate Tribunal made the similar findings in apparently stronger language used touching upon the failure of the appellant employer to press home its case.

The points essentially sought to be canvassed by Mr. Zulfiqur Bulbul Chowdhury are threefold, namely, that the case is not maintainable under section 34 of the IRO as the section is intended to enforce the ‘established right’ not to settle new disputes as is sought to done by the respondent. In support of his contention Mr. Zulfiqur Bulbul referred to the cases of Mozammel Haque Chowdhury v Chairman, Labour Court & another reported in 10 BLC p 485. ; Chairman Power Development Board & others v Chairman, Labour Court, Khulna reported in 1981 BLD (AD) p 59.; Abdul Hamid v Chairman, Second Labour Court reported in 29 DLR p 295 and Bangladesh Marine Fisheries Association v Bangladesh reported in 52 DLR p 274.

Second limp of his argument was that the first party respondent is not a ‘worker’ as his post is included in the national pay scale. None serving in the national pay scale can be a ‘worker’ as per law. The respondent, therefore, is not entitled to extended age of retirement provided under the Ordinance of 1986. And finally, as per Rule-9 of the Bangladesh Service Rules and section 28 of the Srama Ain, 2006 the respondent is bound by the date of birth declared by him in his application for the job. There is no scope for change or modification of the same by subsequent production of papers or documents testifying otherwise.

To take up the second point first, ie., whether the first party respondent is a ‘worker’ as contemplated under the Employment of Labour (Standing Order)Act,1985 and the IRO. The Labour court appears to have addressed the point elaborately by reference to relevant sections of Employment of Labour (Standing Order) Act, 1965 and the IRO and came to the conclusion that the respondent is a worker. The Tribunal affirmed the judgment primarily on the failure of the appellant to prove anything to the contrary.

The definition of ‘worker’ given in section 2(v) of the Employment of Labour (Standing Order) Act, 1965, is as follows:

Section 2(v): ‘worker’ means any person including an apprentice employed in any shop, commercial establishment or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whther the terms of employment be expressed or implied, but does not include any such person-

who is employed mainly in a managerial or administrative capacity ; or
who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to officer or by reason of power vested in him, functions mainly of managerial or administrative nature.

Definition of a ‘worker’ given in section 2(XXVIII) of the IRO, reads as follows:

“Section 2(xxviii): “worker” and “workmen” means any person including an apprentice not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor to do any skilled, unskilled, manual, technical or clerical work whether the terms of employment be expressed or implied and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute, but does not include a person-

employed as a member of the watch and ward or security staff or confidential assistant, cypher assistant of any establishment;
employed in a managerial or administrative capacity;
who being employed in a supervisory capacity performs, by virtue of the duties attached to his office or by reason of the powers given to him, functions of managerial or administrative nature.

[Exception. Notwithstanding anything contained in sub-clause (a), a person employed as a member of the watch and ward or security staff or confidential assistant or cypher assistant of any establishment shall be entitled to all financial benefits admissible to a worker or workman of similar grade or category.]”

A bare reading of the sections of law quoted above suggests that pay-scale, national or local has nothing to do with the question of determination of a person’s status as ‘worker’. The petitioner did not come up with any authority or law to substantiate its point either. The contention of Mr. Bulbul that the respondent himself admitted that he used to do supervisory works, thus, he ceased to be a worker does not also commend to us. The exact statement made by the first party respondent is: Avwg wb‡RI KvR Kwi &Ges I‡`i KvR †`Lvïbv Kwi| The statement plainly means that the respondent alongside his own works does some supervisory works. Law quoted above can hardly be construed to mean that a person even if employed in supervisory capacity ceases to be a worker unless he performs, by virtue of the duties attached to his office or by reason of the powers given to him, functions of managerial or administrative nature. No such case is made out by the petitioner. Our considered view, therefore, is that the respondent is a ‘worker’ within the meaning of the Employment of Labour (Standing Order) Act, 1965 and the IRO.

Reverting back to the first point, ie., a right yet to be settled is sought to be enforced by the respondent which is not maintainable under section 34 of the Employment of Labour (Standing Order) Act, 1985. Mr. Bulbul has taken pains to press home the point and tried to stress on the contention that production of SSC certificate at the fag end of one’s career is not only unacceptable in law but also amounts to fraud on the employer. We are unable to follow the logic of his contention. It is difficult to conceive in human conditions that a sane man possessed of unimpeachable evidence in his favour like SSC certificate instead of using it to his benefit would keep it undisclosed till the end of his career with a view to defrauding his employer. Among the cases he referred to on this point Mr. Bulbul seems to have placed considerable reliance on the case of Mozammel Haque Chowdhury reported in 10 BLC p 485.

In the said case a Division Bench of this Court while sitting upon a dispute of age raised by a worker took into notice the principle enunciated by our Appellate Division in the case of Power Development Board (supra) and made the following observation:

“…..determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Ordinance.”

In the cited case the employer asserted that a specific date of birth was given by the worker himself at the time of entry into the service. His ACR contained the date of birth as given by him. According to the date of birth given by the worker his retirement order was passed. At this stage he came with an objection to the Service Book entry as unilateral and conjectural by reference to a certificate issued by a High School where, as claimed, he was a student of class VIII, showing a different date of birth. With the factual background High Court Division took the view that this being a disputed question of fact and not a right secured or guaranteed by law is not determinable by the Labour Court under section 34 of the IRO.

In the next case, ie, the case of Power Development Board, 1981 BLD (AD) 59, our Appellate Division held:

“It is true that they, along with three other respondents were appointed before Nov,1964 were allowed the designation of Line-Helpers but there is no post like Line-Helpers in the revised pay scale effective from Nov, 1964 and as such mere entry in the service books or even their letters of appointments, of this designation will not entitle them to the pay scale of lineman.”

In this case the Appellate Division further held:

“The respondents themselves are not sure of their right to the designation and pay scale of lineman appears from their respective applications under section 34 of the industrial relation ordinance in which they prayed for establishment of their right to designation and pay scale of Lineman and for enforcement of their right therefor. Section 34 is not meant for establishment of any right, but it provides for enforcement of any existing right, guaranteed or secured by law, award or settlement.”

The observations of the Appellate Division came in the following factual background:

Some workers (designated as Line-Helpers) of the then Water and Power Development Authority, Shortly, “WAPDA”, claimed the designation as well as pay scale of lineman under the revised pay scale. As their claim was rejected they individually filed application in the Labor Court under sec 34 of the IRO for enforcement of their right to the designation and pay scale of ‘lineman’ and came out successful up to the High Court Division.

Their pay scale was governed by the modified pay scales of WAPDA till Nov 24, 1964. Under the modified pay scale there were three categories of employees under the same designation of “Line-Helpers”. But their pay scale varied according as the variation of skill and experiences. From 24.11.1950 modified pay scale was replaced by revised pay scale under which post of Line-Helpers were abolished altogether and the incumbents tuned into either “Lineman” or “Helper”. Some of the respondents, appointed as Line Helpers, continued their designation as such even after introduction of the revised pay scale. And similarly those who were appointed after revised pay scale as Helpers were designated as “Line-Helpers” and these facts were entered in their service books although there was no post of Line-Helpers since 1964.

None of the decisions referred to by Mr. Bulbul seems to be of any help to him for the precise reason that peculiar facts of individual cases did not suggest that the right sought to be enforced in those cases were secured or guaranteed by law. In both the cases facts alleged were by their nature, disputed and not established or secured by law admitting of enforcement under section 34 of the IRO. Two other cases reported in 29 DLR p 295 and 52 DLR p 274 on the face of them are far distinguishable and removed from the point raised thus are of no avail for the petitioner.

The peculiarity of facts of this case is that the first party respondent came up and examined himself as PW.1. He proved, amongst others, his SSC certificate (Ext.1); Passport (Ext.2); Freedom Fighters’ Certificate (Ext. 3); his representation (Ext.5) to the authority-all in order to show that his date of birth is 15.6.1952 and accordingly his date of retirement would be due on 15.6.2012. But the petitioner did neither examine any witness nor produce any document to show otherwise. Rather an inquiry report of the Comilla Education Board submitted at the instance of the petitioner itself conformed the date of birth sought to be established by the first party respondent.

The first party respondent stated on oath that he passed SSC Examination six years before he made application for the present job. And when he entered the job he was a student of B.Sc. He further stated that at the time of making application for the job he submitted the SSC certificate and a testimonial. He denied having mentioned anywhere 24 years as his age. He has rather indicated that he fell victim for his trade union activities.

The impressive body of evidence available on records remains unassailed for no steps was taken by the petitioner to impeach the credit of the same or to prove anything to the contrary. Curiously, office of the petitioner company gave employment to a young man studying at the material time in the undergraduate class but it chose not to bother for his certificates instead, felt it convenient to enter in his service book/ register a date of birth the basis of which they cannot prove.

Mere entry of the date of birth in the service book/register irrespective of its proven infirmities and reasonable nexus to the actual date of birth borne out by irrefutable evidence cannot be treated as a cast-iron rule to be followed in all circumstances. In order to prevent manifest injustice from being perpetuated the entry may be corrected, provided that such correction stands the test of reasonableness in terms of chain reaction and other incidents of it in the service set up.

Date of birth of a worker borne out by a document like the Secondary School Certificate remaining unassailed in terms of credibility, constitutes, in fit circumstances, right guaranteed or secured to him by or under the law, award or settlement as contemplated under section 34 of the Industrial Relations Ordinance, 1969 and is enforceable under the said section of law.

From the above discussions we are of the view that a right guaranteed or secured by law, award or settlement as contemplated under section 34 of the IRO emerges in favour of the first party respondent which comes within the meaning of section 34 of the IRO and the case of the first party respondent under the said section is fairly maintainable.

Now the related question of entitlement of the respondent to the enhanced age of retirement comes in. Public Corporation (Management Co-ordination) 0rdinance, 1986 provides the privilege for the workers serving in public corporation enhanced age of retirement, ie, 60 years instead of 57 years allowed in other laws.

Sections 2(b), 2(e), 3 and 14A of the Public Corporation (Management Co-ordination) 0rdinance, 1986 would be relevant for ascertaining the question of entitlement of the respondent to enhanced age of retirement. The sections are quoted below.

Section 2(b): “enterprise” means an industrial or commercial enterprise, a company or a firm vested in, or owned by, or the majority shares in which belong to, the Government and which is placed under a public corporation by or under any law for the time being in force or an industrial or commercial enterprise, a company or a firm owned, managed or maintained by a public corporation;

Section 2(e): “worker” means any person, skilled or unskilled, who works for hire or rewards, but does not include a person who is employed in any managerial, administrative, supervisory or solely clerical capacity

Section 3: The provisions of this Ordinance and the regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Section 14A: (1) A worker of an enterprise shall, notwithstanding anything contained in the terms and conditions of his employment in any contract, rule, regulation, bye-law or other instrument, retire from employment on the completion of the sixtieth year of his age.
Provided that a worker who has completed the sixtieth year of his age on or before the date of commencement of the Public Corporations (Management Co-ordination) (Amendment) Act, 1994 shall cease to be in the employment of the enterprise on such commencement.]

The Public Corporation (Management Co-ordination) 0rdinance, 1986 is a special law intended to provide for co-ordination of management of the affairs and business of certain public corporations and for matters connected therewith. Section 3 of the Ordinance is an overriding clause excluding operation of all other law in its area of operation. The definition of ‘enterprise’ given in section 2(b) of the Ordinance covers the employer company. The application of the Ordinance to the company is not denied by the petitioner. What is said by the petitioner is that the Ordinance does not apply to the respondent as he is not a worker. The first party respondent is already found to be worker within the meaning of the Employment of Labour (Standing Order) Act, 1965 as well as the IRO. Now it remains to be seen whether he is a ‘worker’ within the meaning of the Ordinance of 1986 so as to be entitled to the enhanced age of retirement.

By a plain reading of section 2(e) of the Ordinance of 1986 quoted above we are left with no doubt that the first party respondent comes within its ambit as a worker. Thus as a worker employed in the petitioner company the first party respondent is entitled to the enhanced age of 60 years provided by section 14A of the Ordinance.

The last point canvassed was about the question of finality of the date of birth declared by the respondent. Mr. Bubul in his bid to substantiate the point referred to rule 9 of the BSR and section 28(2) of the Srama Ain, 2006 and submitted that the date of birth declared by the respondent and accordingly entered in his service book is binding upon him. His application for correction or change of his date of birth is barred by law. We are not at all persuaded by his contention for the simple reason that here is a case where the respondent worker has denied having declared any such age or date and the petitioner has clearly failed to prove anything to the contrary. There is, therefore, no age and/or date of birth declared by the respondent worker so as to attract the rules of the BSR or the Srama Ain in this case. Furthermore, the Srama Ain, 2006 by its transitory provision contained in section 353 has excluded the cases pending on the date of its coming into force from its operation. The instant case being one filed before the Srama Ain came into being is governed by the law as it stood at the material time.

It follows, therefore, that no age or date of birth has ever been declared by the first party respondent as claimed by the petitioner. And he is a worker within the meaning of section 2(e) of the Public Corporation (Management Co-ordination) Ordinance, 1986 and accordingly entitled to get the privilege of extended time of retirement under section 18A of the said Ordinance. His right to go on retirement on the basis of the date of birth mentioned in the Secondary School Certificate remains to be his right secured under law enforceable under section 34 of the IRO.

For all the reasons stated above we find no substance in the submissions of Mr. Zulfiqur Bulul so strenuously made before us. The rule by the same token, being devoid of merit, is liable to be discharged.

In the result, this rule is discharged. The impugned judgment and order passed by the Labour Appellate Tribunal affirming those of the First Labour Court, Chittagong, are affirmed. The first party respondent will be entitled to his cost throughout.

Communicate a copy of this judgment at once.

Ed.

Pranay Kumar Malakar Vs. Chowdhury Makhlisur Rahman, (Mirza Hussain Haider, J.)

Case No: CIVIL APPEAL No. 324 OF 2009.

Judge: Surendra Kumar Sinha, CJ Syed Mahmud Hossain, J Hasan Foez Siddique, J Mirza Hussain Haider, J

Court: Appellate Division ,

Advocate: Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record,

Citation: 2019(1) LNJ

Case Year: 2016

Appellant: Pranay Kumar Malakar and another

Respondent: Chowdhury Makhlisur Rahman

Subject: Evidence Act

Delivery Date: 2019-11-26

APPELLATE DIVISION

(CIVIL)

Surendra Kumar Sinha, CJ

Syed Mahmud Hossain, J

Hasan Foez Siddique, J

Mirza Hussain Haider, J

Judgment on

07.12.2016

}

Pranay Kumar Malakar and another

. . . Appellants

-Versus-

Chowdhury Makhlisur Rahman

...Respondent

Evidence Act (I of 1872)

Sections 45 and 73

When modern technologies are available in comparing the disputed signatures with the admitted signature the court should not take the risk of comparing the signature by itself when the experts with modern technologies are available. . . . (18)

Evidence Act (I of 1872)

Sections 45 and 73

In respect of thumb impression it is not at all possible to justify whether one thumb impression matches with other by naked eye other than with the help of modern technique and enlargement of impression for which the Expert is the right person who can give opinion upon critical analyses of all marks of the impressions. . . . (18)

Specific Relief Act (I of 1877)

Section 12

In a suit for specific performance of Contract the plaintiff is to prove that there was a talk of sale, pursuant to the said talk consideration/earnest money was passed and an agreement for sale(bainapatra) was executed by the vendor stipulating certain conditions, if any, to enforce the agreement. In the present case the plaintiff respondent failed to prove all the above conditions including those of the signatures and thumb impressions in the bainapatra. . . . (19)

For the Appellants : Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record.

For the Respondent : Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record.

JUDGMENT

Mirza Hussain Haider, J.: This civil appeal, by leave, is directed against judgment and decree dated 18.04.2006 passed by a Single Bench of the High Court Division in Civil Revision No. 3652 of 2001 making the Rule absolute upon setting aside the judgment and decree dated 25.05.2000 passed by the learned Additional District Judge, Moulavibazar, in Title Appeal No. 134 of 1996 and thereby affirming the judgment and decree 22.09.1996, passed by the learned Subordinate Judge, 1^st Court, Moulavibazar, in Title Suit No. 10 of 1990 decreeing the suit.

2. Facts, leading to filing of this appeal, in a nutshell, are:

3. That the present respondent No.1 as plaintiff, instituted Title Suit No. 244 of 1980 in the Court of the then Subordinate Judge,(now Joint District Judge), 2^nd Court, Sylhet, impleading the present appellant as defendant for specific performance of contract. The said suit was decreed on 19.02.1982. Thereafter, the defendant appellants preferred appeal before the learned District Judge, Sylhet which was subsequently re-numbered as Title Appeal No. 81 of 1985 in the Court of learned District Judge, Moulavibazar, after Moulavibazar District Judgeship was created. The learned District Judge, Moulavibazar after hearing the same allowed the appeal by his judgment and decree dated 19.02.1982 and sent back the suit on remand with observation that the signature of the defendant No.1 and left thumb impression of the defendant No.2 be examined by experts and the parties to adduce evidence if they so like. After remand the plaintiff got the signature and left thumb impression of defendant Nos. 1 and 2, respectively, examined by the CID of Police and the suit was transferred to the 1^st Court of learned Subordinate Judge(now Joint District Judge) Moulavibazar being re numbered as Title Suit No. 10 of 1990. After hearing the trial Court decreed the suit by judgment and decree dated 02.02.1996, which was reversed in appeal by the judgment and decree dated 25.05.2000 passed by the learned Additional District Judge, Moulavibazar in Title Appeal No. 134 of 1996.

4. The case of the plaintiff, in short, is that, defendants No. 1 and 2, along with their other co-sharers being owners of the suit land as well as other lands agreed to sell their land to the plaintiff at a consideration of TK.60,000/- and the value of the share of the defendants No. 1 and 2 was fixed at TK.20,000/= as the co-owner of rd of the suit land. As per the agreement other co-sharers on receipt of TK.40,000/= transferred their rd shares to the plaintiff by executing registered kabala. The defendant Nos. 1 and 2 on receipt of TK.15,000/= out of the agreed amount of TK.20,000/= executed a deed of agreement (Bainapatra) on 01.04.1980 in favour of the plaintiff in respect of their rd share stipulating that on receipt of the rest of the amount of consideration within next three months they would execute and register the kabala. But subsequently they denied executing and registering the kabala lastly on 30.06.1980 when the plaintiff demanded for the same. Hence the suit.

5. The defendant Nos. 1 and 2 contested the suit by filing written statement denying the claim of the plaintiff contending, inter alia, that they did not execute any bainapatra nor did they receive any amount as earnest money from the plaintiff. The plaintiff with an intention to grab the suit land, in collusion with the scribe and the attesting witnesses, created a forged bainapatra and instituted the suit. That in respect of the said land along with other lands they filed Partition Suit No. 102 of 1980 wherein by an order dated 10.05.1980 the defendants of that suit were asked to show cause as to why they would not be restrained by an order of injunction from transferring the suit land to others. The deed of transfer dated 24.05.1980 as mentioned in the plaint was executed after issuance of the aforesaid show cause notice. They claimed that Jogendra Ram Malakar was the owner of rd share of the disputed homestead and his share became enemy property. That on 14.05.1980 the plaintiff filed an application to the authority to take lease of that rd share left behind by Jogendra Ram Malakar but on an application filed by them (defendants) the Deputy Commissioner stayed all further proceedings in respect of that enemy property and hence the suit was liable to be dismissed.

6. The trial Court on hearing the parties decreed Title Suit No. 10 of 1990 by judgment and decree dated 22.09.1996. The said decree was challenged by the Defendants-appellants in Title Appeal No.134 of 1996. On hearing the learned Additional District Judge, Moulvibazar, by judgment and decree dated 25.5.2000 allowed the same and set aside the judgment and decree of the trial court.

7. Being aggrieved by the said judgment and decree of the appellate court the plaintiff-respondent filed civil Revision No.3652 of 2001 before the High Court Division and obtained Rule which was ultimately made absolute.

8. Hence, the defendant appellants filed civil petition for Leave to Appeal No. 272 of 2008 and obtained leave giving rise to the instant Civil Appeal.

9. Mr. M Abdul Wadud Bhuiyan, the learned Senior Counsel appearing on behalf of the appellants submits that the law permits the court to compare signature of a person with his admitted signatures yet in respect of comparison of thumb impression or signature the court usually instead of doing it by itself may take assistance of an expert having knowledge of developed scientific process and method of examination in this respect. It is hazardous and risky for the Court even the High Court Division itself to sit as an expert in order to examine and scrutinize the signature and thumb impression on the impugned Bainapatra for ascertaining similarity and dissimilarity of signature or thumb impression when there is already an expert report in the case and therefore, the High Court Division committed an error of law in setting aside the judgment of the court of appeal below and, as such, considering the same the impugned judgment and order passed by the High Court Division is liable to be set aside. He next submits that the plaintiff failed to prove purchase of the stamp paper which has been used in the alleged bainapatra which is apparent on the face of it appears to have been purchased four months back and in the name of one Abdur Rahman, who is not a party in the said bainapatra. He finally submits that the suit land is the only paternal homestead belonging to the defendant-appellants and if the decree or specific performance of contract is enforced, they are to go to the street leaving their only paternal homestead and in such consideration of the matter the High Court Division ought not to have exercised its discretion in granting specific performance of contract. Considering the facts and circumstances the impugned judgment and order passed by the High Court Division is liable to be set aside.

10. Mr. Mahabubey Alam, the learned Senior Counsel appearing on behalf of the plaintiff-respondent, submits that the plaintiff respondent by adducing adequate evidences has been able to prove the signature of the defendants in the Bainapatra which the trail court as well as the High Court Division, upon proper scrutinisation found it to be of the defendants and as such decreed the suit which does not call for any interference by this Division. Thus the instant civil appeal may kingly be dismissed. He finally submits that the defendant- appellants in their pleadings having not made any statement that if the decree for specific performance of contract is enforced they are to go to the street leaving their only paternal homestead and in that view the instant appeal is liable to be dismissed

11. We have considered the submissions of the learned senior advocates of both the sides and perused the impugned judgment of the High Court Division and other materials on record.

12. The moot question in this case is whether the signatures and thumb impression on the bainapatra was genuine and whether it was risky/hazardous for the High Court Division itself to sit as an expert in order to examine and scrutinize the signature and thumb impression on the impugned bainapatra for ascertainment of similarity and dissimilarity of signature or thumb impression wherein there is already an expert report in the case. The trial Court on the face of specific denial of the defendants and direction of the appellate court below sent the signatures and thumb impression of defendants No. 1 and 2 to the Handwriting Expert for examination and report on comparing the same with their admitted signatures. The Handwriting Expert of CID, Police, examined the same and sent his report which the trial Court did not accept; rather it examined the signatures and the thumb impression of its own and considering other materials on record decreed the suit. The Court of appeal below, on the other hand, on consideration of all the materials on record, having found discrepancy in the signature and thumb impression of the defendants and also in respect of purchasing stamp papers used in bainapatra, absence of the father in law of the plaintiff at the time of writing of the bainapatra and also found that the plaintiff has failed to prove that the consideration money was passed by producing sufficient evidence, allowed the appeal and dismissed the suit. The Court of appeal below in respect of discarding the opinion of the Handwriting Expert relating to signatures and thumb impression, observed that ‘no doubt a Court can itself compare the writings in order to appreciate properly the other evidences produced before it in that regard. But the opinion of Handwriting Expert is also relevant in view of section 45 of the Evidence Act, but that too is not conclusive’. The Court of appeal below relying on the principle that ‘task of arriving at a sound opinion is always fraught with difficulties’ and, as such, a Court for the reasons as aforesaid either shall have to abandon the duty or reject the opinion of a qualified expert merely because his evidence is an opinion evidence. In the absence of better evidence opinion evidence has to be utilized by course of law in respect of forming opinion’. Thus considering the fact that the trial court did not accepted the opinion of expert and rather disregarded the same.

13. The Court of appeal below under such circumstances considered all the evidence, both oral and documentary on record and found that the plaintiff as P.W. 1 in his cross examination stated that “Avgvi evqbvgv cÎ mZ¨ weavq Avwg Expert examination KivBe bv GÛ Bnv mZ¨ b‡n evqbv cÎ Expert examination KivB‡j Rvj cÖgvwYZ nB‡e weavq Dnv expert ×viv examination Kivq bvB|” and came to a conclusion that the motive of P.W. 1 is very clear. Again in respect of purchasing stamp paper and writings of bainapatra and passing of consideration money the court of appeal below upon considering all evidences on record held that the trial Court was wrong in coming to the conclusion that the suit should be decreed on misconception of law and misinterpretation of evidence and thus allowed the appeal and thereby dismissing the suit.

14. Apart from the above on consideration of the deposition of PW 1 it appears that he stated that the bainapatra was executed in his shop when his father-in-law who claimed to have negotiated the transfer was not present; At 11.00 am he brought the scribe from the Court; he did not inform the witness or the scribe earlier that on the said date bainapatra would be written. He went to the court and purchased the stamp paper and he took the scribe to his shop when he kept the defendants No. 1 and 2 sitting at Rokman Ali’s shop. But the scribe Abdul Matin (PW-6) on the other hand deposed that ‘he was informed at 11.30 am by the plaintiff at the Registry Office that he would have to write the bainapatra. Plaintiff purchased one stamp paper on that particular date and took it to his shop’. On the other hand on scrutinizing the bainapatra (Exhibit-2) which is shown to have been executed on 18^th Chatra 1386 BS corresponding to 01.04.1980 it appears that the same was purchased in the name of one Abdur Rahman of Sylhet,(who is not a party to the same) on 02.01.1980 corresponding to 17^th Poush 1386 BS approximately four months before the alleged date of execution of the said bainapatra. Relying on such evidence the appellate court held that neither the plaintiff nor the defendants purchased the stamp paper for the purpose of the said bainapatra. As such the plaintiff dismantled and dislodged the genuineness and sanctity of execution of the bainapatra. Again from the evidence on record it appears that the father-in-law of the plaintiff, who was the negotiator of the sale, was not present at the time of transaction as well as writing of the bainapatra as admitted by the plaintiff himself. If the father-in-law of the plaintiff was the negotiator then there was no reason for the said negotiator to be not present at the time of writing of the bainapatra and be a witness of the said bainapatra instead of a shop keeper and a stranger to become attesting witnesses in the said bainapatra. Thus the Court of appeal below raised suspicion as to genuineness of the bainapatra. It further appears that the defendants being inhabitants of Kulaura under Moulvibazar District it is not understood as to why they would go to the station road in Sylhet to pay the earnest money on 01.04.1980 when the contract was made and execute the bainapatra on 02.01.1980 on a stamp paper purchased four months earlier in the name of a third party. Moreover there is no reason as to why the plaintiff shall pay the earnest money of TK.15,000/= out of TK.20,000/= when he got the sale deed registered from the other co sharers of the defendants No. 1 and 2 within a week from the date of registration of the sale deed executed by other co sharers and why three years’ time would be given to pay the balance amount of only TK.5,000/= to the plaintiff.

15. On consideration of all the materials on record and the facts and circumstances stated above Court of appeal below observed that the aforesaid actions of the plaintiff itself proves forgery and fabrication in making the alleged bainapatra in collusion with the scribe and other attesting witnesses who are inhabitants of Sylhet whereas the property is situated at Kolaura under Moulvibazar District’. Moreover the conduct of the plaintiff and his father-in-law Mahbubuddin Chowdhury, admittedly a neighbor of the defendants, clearly show that they had been trying to grab the defendants’ rd share for which the defendants No. 1 and 2 earlier filed a suit and obtained temporary injunction against the plaintiff and other co sharers in the suit jote from transferring the same. Being unsuccessful to get the same the plaintiff in collusion with his father-in-law and others created the bainapatra by false personation showing the defendants No. 1 and 2 as the vendors. The plaintiff as PW-1 admitted about the filing of the said suit by the defendants in the court of Moulvibazar and also admitted about passing of the order of injunction against them. Thus the Court of appeal below allowed the appeal and dismissed the suit observing that the trial court was not justified in decreeing the suit which is based on misreading and misinterpretation of the evidence on record.

16. From the impugned judgment and order of the High Court Division it appears that all the abovenoted findings of the lower appellate Court have not been met by the High Court Division while passing the impugned judgment. The High Court Division, it appears, relied upon the findings of the trial Court as well as itself considered and compared the same in respect of the comparison of the signature of the defendants No. 1 and 2 in the bainapatra and other documents and came to the finding that the signature in the bainapatra is genuine. In respect of the Handwriting Expert’s report the High Court Division observed “ the Handwriting Expert also stated in his report that apparently the signatures in all the relevant papers including the deed of agreement are of same hand but on further analyses the expert find some difference in respect of pen movement, density of ink or hesitation in putting the signature in the deed of agreement.” The High Court Division observed ‘since the trial Court did not consider the expert’s report as a correct one it compared the signature by itself and came to the conclusion that the signatures in all relevant papers are of same hand’. Thus it affirmed the said finding of the trial Court holding that there may be some differences in the signature of one person to another because of time, age, health condition and mental condition of a person and, as such, the trial Court rightly discouraged such report’. In respect of thumb impression the High Court Division observed that “it is further apparent that the thumb impressions are of same hand in respect of size and nature but there is some difference in respect of density of ink about such difference.

17. On these backdrops the Handwriting Expert report dated 08.07.1993 has been placed before us by filing additional paper book dated 28.11.2016. Having gone through the same it appears that the High Court Division completely misread the same and without considering the entire report came to a wrong conclusion that the expert found that the signatures are of same hand. We have meticulously gone through the report which clearly shows that on comparison of the signature contained in the bainapatra along with other signature given in the vokalatnama and the admitted signature obtained on 25.5.2981 the expert found that the signature in the vokalatnama matches with the admitted signature of Pranay Kumar Malakar but none of those signatures matches with the signature which appears in the bainapatra. The expert at the concluding portion of his report opined as follows:

“......D‡jøwLZ cv_©K¨¸wj †gŠwjK cÖK…wZi | ...... mvwe©K we‡ePbvq Avwg GB wm×v‡Í DcwbZ nBjvg †h, LÓ wmwiR wPwýZ cÖvgY¨ MÕ wmwiR wPwýZ bgybv ¯^v¶iMywji m¤úv`b Kvix K, K-1 wPwýZ weZwK©Z ¯^v¶i `yBwU m¤úv`b K‡ib bvB | KÕ, K-1 wPwýZ ¯^v¶i `yBwU Bwg‡Ukb c×wZ‡Z Rvj ¯^v¶i |

18. Similar was the finding in respect of thumb impression. So, on the face of such report by the Handwriting Expert the High Court Division committed serious error in relying on the opinion of the trial Court and also upon its one opinion and thereby erroneously passed the impugned judgment and order. No doubt the court is the expert of all experts as decided in the case of Abtab Ali(Captain, Retired) Vs. SM Kutubuddin (56 DLR(AD)117). But when modern technologies are available in comparing the disputed signatures with the admitted signature the court should not take the risk of comparing the signature by itself when the experts with modern technologies are available. This view finds support in the case of Serajuddin Ahmed (Md) and others Vs. AKM Saiful Alam and others (9 MLR (AD) 201) and Tarek Chandra Majhi Vs. Atahar Ali Hawlader and others (8 MLR (AD)209). In respect of thumb impression it is not at all possible to justify whether one thumb impression matches with other by naked eye other than with the help of modern technique and enlargement of impression for which the Expert is the right person who can give opinion upon critical analyses of all marks of the impressions, as decided in the cases cited above.

19. In a suit for specific performance of Contract the plaintiff is to prove that there was a talk of sale, pursuant to the said talk consideration/earnest money was passed and an agreement for sale(bainapatra) was executed by the vendor stipulating certain conditions, if any, to enforce the agreement. In the present case the plaintiff respondent failed to prove all the above conditions including those of the signatures and thumb impressions in the bainapatra.

20. For the reasons stated hereinabove we are of the view that the High Court Division was not at all justified in discarding the handwriting expert’s report and relying on the opinion of the trial Court and also examining the signature and thumb impression by itself and thereby it came to an erroneous decision which is liable to be set aside.

21. Accordingly, this civil appeal is allowed and the judgment and order complained of herein is set aside. There will be no order as to costs.

Ed.

CIVIL APPEAL No. 324 OF 2009.

(From the judgment and decree dated 18.04.2006 passed by the High Court Division in Civil Revision No. 3652 of 2001).

Premhari Barman and others Vs. Commissioner of Taxation, East Pak. Dacca, 24 DLR (1972) 198

Case No: Reference Case No. 9 of 1961

Court: High Court Division,,

Advocate: Mohammad Habibur Rahman ,,

Citation: 24 DLR (1972) 198

Case Year: 1972

Appellant: Premhari Barman

Respondent: Commissioner of Taxation, East Pakistan, Dacca

Subject: Income Tax, Fiscal Law,

Delivery Date: 1970-8-5

Supreme Court
High Court Division
(Special Original Jurisdiction)

Present:
Maksum-ul-Hakim J.
Fazle Munim J.

Premhari Barman and others
...........Applicants
Vs.
Commissioner of Taxation, East Pak. Dacca (now Director of Taxation, E. Pak. Dacca)
..........Respondents

Judgment
August 5th, 1970.

Bengal Agricultural Income-Tax Act, 1944
Sections 30 (1) and 2(8)
Hindu Undivided Family— After deletion of interpretation clause under section 2(8) of the Act, Hindu undivided family means every such family governed by Mitakshara, Dayabhag, or any other school of Hindu law— Provisions of section 30 of the Act are equally applicable to members of Dayabhaga Hindu Family as to members of others Schools of Hindu law.…… (8&9)

Cases Referred to-
Kalyani Vithaldas vs. Commissioner of Income Tax. 64 IA 87; Sur Sundar Singh Majithia vs. The Commissioner of Income-Tax, CP and UP 1942 (10) ITR 457.

Lawyers Involved:
BN Chowdhury, Pradip Kumar Guha — For the Applicant.
Mohammad Habibur Rahman — For the Respondent.

Reference Case No. 9 of 1961.

JUDGMENT

Maksum Ul-Hakim J:

This is a case stated by the Agricultural Income Tax Tribunal under sub-section (2) of section 63 of the Agricultural Income-tax Act. The questions of law propounded by and referred to this Court are as follows:

"(I) Whether the provisions of Section 30 of the Bengal Agricultural Income Tax, Act, 1944 as adopted in East Pakistan are applicable to a Daya Bhaga Hindu Family claiming separate assessment after partition and separation.
(II) Whether in the facts and circumstances of the case viz, oral partition of Joint Family properties, separate possession and separate enjoyment of agricultural income in definite shares by the members, separate residence, separate funds, the Hindu undivided family has ceased to exist, as such, and can claim for separate assessment of Agricultural Income under section 30 of the Act."

2. The facts giving rise to this reference may be briefly stated as follows: One Bepar Chandra Barman died in 1947 leaving five sons amongst whom Maniram Barman (since deceased) was the eldest. These five sons inherited the property left by their father. After the death of Bepar Chandra Barman, Maniram Barman used to be assessed as an individual. But in respect of the three yeas of assessment under consideration, namely, 1951-52, 1952-53 and 1953-54 he was assessed as a 'Karta' of the Hindu undivided Family. The objection of the assessee was refused, up to the Agricultural Income-tax Appellate Tribunal.

3. It is admitted that the assessee is governed by the Daya Bhaga school of Hindu law and his case was that after the death of their father in the month of Agrahayan, 1354 BS the five brothers partitioned the joint property and since then they possessed their respective properties separately in separate sahams after effecting a partition by metes and bounds. At that time, no specific document or deed was executed and registered by the parties and the partition, it appears, was effected orally and by amicable arrangement. Six years thereafter on 3rd February 1954 the five brothers executed a regular deed of partition in terms of the arrangement arrived at in Agrahayan, 1354. BS and registered the same. It was, however, specifically mentioned therein that the actual partition was effected and put into operation in Agrahayan, 1354 BS. This deed of partition was placed before the Agricultural Income-tax authorities and it was contended that the Undivided Hindu Family was disrupted from 1948 (Agrahayan 1354 BS) and, as such, the assessee Bepar Chandra Barman was entitled to be assessed as an individual, the Revenue Officers beginning from the Agricultural Income-tax Officer upto the Appellate Tribunal maintained that this deed of partition was not relevant for the period prior to the year of execution of the document. The Tribunal observed:

"There is no satisfactory material before us from which it can be held that there had actually been an oral partition of the joint property by metes and bounds at any time before the deed of partition of 1360 BS. For the purpose of our present enquiry, the deed of partition does not appear to be quite relevant. This is because it was made after the assessment years relating to these appeals."

4. It was further found that until the deletion of clause (8) of section 2 of the Bengal Agricultural Income Tax Act the Hindus governed by the Dayabhaga School of Hindu Law were not needed to be considered as Hindu Undivided family as the interpretation clause clearly defined a Hindu undivided family as one which was governed by the Mitakshara Law. This definition clause embodied in clause (8) of Section 2 of this Act was deleted during this period and, as such, the Hindu undivided families of the Dayabhaga School also could then be regarded an assessed as such.

5. It was further observed that after this deletion the assessee was required to prove by positive material that the undivided family was disrupted and accordingly he was entitled to be assessed as an individual as required under section 30 of the Bengal Agricultural Income Tax Act

6. The application of the assessee for referring the above questions to this Court having been rejected by the Tribunal the assessee approached this Court. Mr. Imam Hossain Choudhury and Mr. Justice BA Siddiky (as their Lordships then were by their judgment dated 8.6.1962 accepted the applications of the assessee and directed the Tribunal to refer the above two questions to this Court. Accordingly, these two questions have been referred to us, after stating the case.

7. Sub-section (1) of section 30 of the Bengal Agricultural Income-Tax act runs as follows:

"(1) Where, at the time of making an assessment under section 25, it is claimed by or on behalf of any member of a Hindu undivided family hitherto assessed as undivided that a partition has taken place among members or groups of members of such family, the Taxation Officer shall make due enquiry thereunto and, if a certified copy of a decree of a competent Civil Court, for partition of the joint family property or a document purporting to show that there is separate possession and enjoyment of such property is produced, and in the case of a document other than a certified copy of a decree the Taxation Officer is satisfied that such document has been acted upon by the parties thereof, or if the Taxation Officer is otherwise satisfied that the Hindu undivided family has ceased to exist as such and the agricultural income is being enjoyed separately by the members or groups of the members of such family in definite shares, he shall record an order to that effect:
Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family."

8. After the deletion of the interpretation clause under sub-section (8) of section 2 of the Bengal Agricultural Income Tax Act, the term Hindu undivided family has to be understood in its ordinary meaning. Under that clause Hindu undivided family only meant a Hindu undivided family governed by the Mitakshara Law. This was a special interpretation attached to the term in view of this sub-section. As soon as this was deletied, it was obvious that 'Hindu undivided family" clearly meant every such family who are governed by Mitakshara, Dayabhaga or any other School of Hindu Law. This appears to be the plain effect of the deletion. In the case of Himangshu Chandra Chowdhury vs. Commissioner of Agricultural Income Tax, East Bengal, Asir, J. with whom Ispahani J. concurred observed as follows:

"In our view, the deletion of clause (8) of section 2 goes to signify that since 1st April, 1951 a Hindu undivided family, whether governed by Mitakshara, Dayabhaga or any other School of Hindu Law should be regarded and assessed as such for the purpose of the Bengal Agricultural Income-tax Act as applied to this part of the country."

9. The observation of their Lordships of the Judicial Committee in the case of Kalyani Vithaldas vs. Commissioner of Income Tax, Bengal, 64 1A 37 also supports this conclusion. It is, obvious, therefore, that the rights and liabilities, as has been conferred under section 30 of this Act on a member of Hindu undivided family is equally available to the members of a Dayabhaga Hindu family, in the same way as to the members of other schools of Hindu Law. In view of the above, our answer to the first question of law, referred to us, is in the affirmative.

10. With regard to the second question it is necessary, in the words of the Judicial Committee in the case of Sur Sundar Singh Majithia vs. The Commissioner of Income Tax, CP & UP 1942 (10) 1TR 457 "to descend from the realm of hypothesis to the region of fact". In the facts stated, the partition deed executed and registered on 3.2.1954 is mentioned. The partition deed clearly refers that six years before the execution and registration of the document the actual partition by metes and bound of the joint property was effected by the five brothers. It was not only an allocation of shares, but division and separate possession of specific sahams which was effected at that time. The Taxation authorities, however, refused to give effect to this document of partition on the ground that the same was not relevant for this period, as the written document was executed and registered after the period of assessment in question. In our opinion, a partition if effected bona-fide and in a legal manner, the same cannot be disregarded only because there was no contemporaneous registered document to that effect. Article 325 of Mulla's Hindu Law, 11^th Edition at page 425 runs as follows:

"(2) Partition by agreement— A partition may also be effect by an agreement between the parties."

It is true that the Agricultural Income-tax Officer is entitled to disbelieve the fact of partition amongst the members of the Hindu undivided family if there are some basis for the same. But only because the partition was effected by an agreement and the same was reduced to writing and registered subsequently, that cannot be a ground for disregarding such a partition.

11. Moreover, it is to be noticed that until the present period of assessment in question, the assessee was assessed as an individual. It is true that he could not be assessed otherwise in view of the existence of sub-section (8) of section 2. But section 30 itself stipulates that the opening clause applies to a member of Hindu undivided family who until then assessed as "undivided" family belonging to Dayabhaga School could have been a member of a family which was not joint. In a case of that nature, only because such a member belonged to a Dayabhaga School, as such, it could not be presumed that the family to which he belonged was an undivided family. In our opinion, section 30 if sought to be applied in the case of an assessee for assessing him as a member of undivided family, who until the deletion of sub-section (8), was assessed as an individual, was required to be shown as a member of an undivided family, on the basis of some material. This, however, was not available at all in this case and the Income-tax Officer relied on a principle that every member of a Hindu undivided family belonging to Dayabhaga School was to be presumed as a member of an undivided family. This presumption in our opinion was wrongly applied in the present case, in view of the fact that he was hitherto assessed as an individual. In view of the above facts, we are of the opinion that the assessee was entitled to claim of assessment as an individual. Accordingly, our answer to the second question is in the affirmative.

12. In view of the facts and circumstances of the present case, we direct the parties to bear their own costs.

Ed.

Premier Bank Ltd. Vs. F.V. Rainbow-1 and others 2016 (2) LNJ 313

Case No: Admiralty Suit No. 06 of 2013

Judge: Sheikh Hassan Arif,

Court: High Court Division,,

Advocate: Mr. M. Moksadul Islam,Mr. Muhammad Mijanur Rahman,,

Citation: 2016 (2) LNJ 313

Case Year: 2016

Appellant: Premier Bank Ltd

Respondent: F.V. Rainbow-1 and others

Subject: Artha Rin, Admiralty Law,

Delivery Date: 2015-06-22

Premier Bank Ltd. Vs. F.V. Rainbow-1 and others 2016 (2) LNJ 313
HIGH COURT DIVISION
(ADMIRALTY JURISDICTION)

Sheikh Hassan Arif, J
Judgment on
22.06.2015

Premier Bank Limited
. . . Plaintiff
-Versus-
F.V. Rainbow-1 and others
. . . Defendant

Artha Rin Adalat Ain (VIII of 2003)
Sections 2, 3, 4, 5, and 6
Since, admittedly, the plaintiff bank is a bank established under the Bank Company Act, 1991 and by virtue of Clause (Ka) of Section 2 of the said Ain it is included in the definition of ‘financial institution’, the natural conclusion is that if it wants to realize any loan amount by filing any suit, it must go before the Artha Rin Adalat established under the said Ain. Not only that, the said suit has to be filed in accordance with the provisions under the Artha Rin Adalat Ain, 2003. Upon mere reading of the plaint as well as the deposition of the sole witness as examined by the plaintiff and the specific prayers made by the plaintiff in the plaint, it is crystal clear that this is a case for realization of loan amount against the defendant Nos. 1-6. In view of specific provisions, namely Section 5 of the Artha Rin Adalat Ain, 2003, this Court does not have any jurisdiction to entertain this suit at all, though, very peculiarly, this suit has proceeded up to the stage of even delivery of judgment. This suit is not maintainable before this Admiralty Court and is liable to be dismissed. However, if the plaintiff desires, and if the law permits, it is at liberty to approach the appropriate forum for seeking redress as sought in the instant suit. . . . (8, 9 and 10)

Mr. M. Moksadul Islam, Advocate
..... For the plaintiff
Mr. Muhammad Mijanur Rahman, Advocate
… For the defendant No. 1-6.

JUDGMENT

Sheikh Hassan Arif, J:

The plaintiff, Premier Bank Ltd. Khatungonj Branch, Chittagong, has filed this Suit against F.V. Rainbow-1 (Reg. No. F-8021), a fishing vessel, the Master of the said vessel and the owners of the vessel with the following prayers:

a decree be passed for an amount of Tk. 8,91,71,046.76 against the defendants jointly and severely with interest @ 18% per annum till the date of realization of the said amount.
a warrant of arrest be issued against the vessel F.V. Rainbow-1 (Reg. No. F-8021) and served on her master or any one in charge of the said vessel and to be taken and held in custody of the Marshal of the Admiralty Court, as security for payment of the decretal amount.
cancelation of the sailing permission of fishing in the exclusive economic zone of Bangladesh be ordered.
release of the defendant no.1 vessel F.V. Rainbow-1 (Reg. No. F-8021) from attachment/warrant and detention in the event of defendants furnishing sufficient and proper security to the satisfaction of this Hon’ble Court.
in the event of defendants failing to pay the decretal amount of the plaintiff an order be passed condemning the said vessel F.V. Rainbow-1 (Reg. No. F-8021) to be sold by order of this Hon’ble Court and the proceed be applied towards the payment of the decretal amount. And
for such other or further order or orders as your Lordships seem fit and proper.

The case of the plaintiff, in short, is that in the course of its banking business, it entered into a loan agreement with defendant No. 4, the owner of the said defendant No. 1-vessel-F.B Rainbow-1, vide sanction advice dated 13.07.2010 enabling the defendant No. 4 to purchase the defendant No. 1-vessel. The said credit facility was subsequently amended and rescheduled on various dates vide letters including, No. Premier/Ktg/Cr./579/2010 dated July13, 2010, Premier /Ktg/Cr./623/2010 dated July 26, 2010, Premier/ Ktg/Cr./2011/ 1429 dated August 14, 2011 and Premier/Ktg/ Cr./2012/173 dated March 11, 2012. Accordingly, the said vessel was purchased by defendant No. 4 and it got sailing permission on 24.10.2011 from the proforma defendant No. 11, Director (Marine), Marine Fishing Department, Chittagong. Subsequently, on 28.06.2012, upon executing Form 9-B of the Mercantile Marine Department, the defendant No. 1-vessel was mortgaged in favour of the plaintiff as against the said loan, thereby, the owners of the defendant No. 1-vessel assigned all the owner’s title, right and interests in the said vessel in favour of the plaintiff as security for the loan amount and interests. That the total outstanding loan together with the interests stood at Tk. 8,91,71,046.76 as on 30.12.2012. That the plaintiff tried in every possible way to recover the said outstanding loan, but it did not get any positive response from the defendants. Thereafter, the plaintiff, on 17.12.2012, also approached the Mercantile Marine Department seeking permission to sell the said mortgaged vessel (defendant No. 1), whereupon the defendant No.10 (the Principal Officer, Mercantile Marine Department, Chittagong), vide letter dated 31.12.2012, asked the plaintiff to take initiatives before the Hon’ble High Court Division for sale of the said mortgaged vessel under Section 43(1) of the Merchant Shipping Ordinance, 1983. In view of above, the plaintiff filed this suit before the Admiralty Bench of the High Court Division praying for a decree of Tk. 8,91,71,046.76 along with interests at the rate of 18% per annum till realization of the said amount providing break-down of the said claim under paragraph 7 of the plaint.
The suit is contested by defendant Nos. 1-6, the said vessel and the owners of the said vessel, by filing written statements. The case of the defendants, in short, is that the suit is not maintainable under Admiralty jurisdiction in its present form. The further case of the defendants is that they never refused to settle the outstanding loan of the plaintiff and that subsequent to the filing of the said suit, the dispute between the plaintiff and the defendants was settled on 13.10.2013 extending the tenure of payment of outstanding loan by the defendants up to 31.05.2016. It is further stated in the written statement that the said vessel is now fishing in the Bay of Bengal pursuant to an ad-interim order passed by the High Court Division in Writ Petition No. 7977 of 2011 filed by the defendants and the said writ petition is still pending.
Upon such contesting versions of the case, this Court, vide order dated 29.04.2014, framed following issues for adjudication:

Is the suit maintainable under the Admiralty Jurisdiction?
Does the plaintiff any cause of action against Defendant nos. 1-6?
Is the suit bad for mis-joinder and non-joinder of parties?
Is the Suit barred under the principles of estoppels, waive and acquiescence?
Has the plaintiff suffered any loss and damages?
Is the Plaintiff have any claim against Defendant nos. 1-6?
Is the plaintiff entitled to recover their claim from the defendants by selling the defendant no.1 vessel FV Rainbow-1 (Reg. No. F-8021)?
What relief, if any, the plaintiff is entitled under the law and equity? If so, to what extent?

Since no initiative was taken by the parties to resolve the issue of maintainability of the suit at first in view of the provisions under Order-14, Rule-2 of the Court of Civil Procedure, the suit proceeded up to the stage of argument hearing and then delivery of judgment.
At the time of argument, learned Advocate for the defendants has vehemently argued the issue of maintainability of this suit before this Court mainly on the ground that in view of the provisions of the Artha Rin Adalat Ain, 2003 making it mandatory for the financial institutions and banks to file cases for realization of loan before the Artha Rin Adalat constituted under the said Ain, the very suit filed by the plaintiff-bank before this Court mainly for realization of loan is not maintainable.

Issues No. 1:

As regards the maintainability of the instant suit, Mr. Moksedul Islam, learned Advocate appearing for the plaintiff, submits that in view of the letter issued by the Marine Department (defendant No.10) to approach the High Court Division for realization of loan granted as against the mortgage of the said vessel, the plaintiff has filed the instant suit. When the attention of the learned advocate was drawn to the specific provisions of the Artha Rin Adalat Ain, 2003 (“the said Ain”), in particular the provisions under Sections 3, 4 and 5, learned Advocate has referred to the provisions under Section 12 of the said Ain. According to him, since in view of the provisions under Section 12 of the said Ain the plaintiff was not in a position to approach the Artha Rin Adalat for realization of loan without first selling the mortgaged property or hypothecated property, the plaintiff was not entitled to avail the jurisdiction of the Artha Rin Adalat. According to him, since the defendant No. 1 is an Ocean going vessel and it has to be sold in accordance with the provisions of the Merchant Shipping Ordinance, 1983, which provides for an appropriate proceeding in the High Court Division under Section 43, the plaintiff has rightly approached the Admiralty Bench of the High Court Division for realization of the loan amount upon selling the said mortgaged vessel. In this regard, learned Advocate refers to Exhibit-15, which is letter dated 31.12.2012, issued by the Mercantile Marine Department asking the plaintiff to take appropriate steps under Section 43 of the Merchant Shipping Ordinance, 1983 and to file suit for a money decree before the Admiralty Bench of the High Court Division. Mr. Islam further argues that since in view of Section 12 of the Artha Rin Adalat Ain, the bank cannot sell the said vessel in auction without first taking the said vessel into possession, it did not take any steps to sell the said vessel under Section 12 of the said Ain.
It appears from the specific provisions of the said Ain, in particular Section 3, that the provisions of the said Ain have been given overriding effect over any other provisions of law under any other Act. Under Section 4 of the said Ain, some Courts, being Artha Rin Adalats, were established and, by virtue of Section 5, the exclusive jurisdiction has been given to the said Adalats for adjudication of cases to be filed by the financial institutions relating to realization of loan. Since, admittedly, the plaintiff bank is a bank established under the Bank Company Act, 1991 and by virtue of Clause (Ka) of Section 2 of the said Ain it is included in the definition of ‘financial institution’, the natural conclusion is that if it wants to realize any loan amount by filing any suit, it must go before the Artha Rin Adalat established under the said Ain. Not only that, the said suit has to be filed in accordance with the provisions under the Artha Rin Adalat Ain, 2003. Upon mere reading of the plaint as well as the deposition of the sole witness as examined by the plaintiff and the specific prayers made by the plaintiff in the plaint, it is crystal clear that this is a case for realization of loan amount against the defendant Nos. 1-6.
This being so, this Admiralty Suit is nothing but a Money Suit filed by a financial institution and, therefore, in view of specific provisions, namely Section 5 of the Artha Rin Adalat Ain, 2003, this Court does not have any jurisdiction to entertain this suit at all, though, very peculiarly, this suit has proceeded up to the stage of even delivery of judgment whereas the plaint of the suit should have been returned or rejected at the very initial stage upon appropriate applications by the defendants. Though this suit was not maintainable from the very first day, it was allowed to be continued to the stage of delivery of the judgment at the cost of the litigants and valuable time of the Court.
In view of above, this Court is of the view that the issue No. 1 should be determined against the plaintiff. This means, this Suit is not maintainable before this Admiralty Court and is liable to be dismissed. However, if the plaintiff desires, and if the law permits, it is at liberty to approach the appropriate forum for seeking redress as sought in the instant suit.

Issue Nos. 2-8:

Though in respect of issue no.1 this Court has decided that the instant suit is not maintainable before this Court, it is obliged to state its findings or decision with the reasons there for on issue Nos.2-8 in view of the amended provisions of Order 20 Rule 5 of the Code of Civil Procedure and the ratio in Md. Sultan Miah Vs. Sree Haradhan Shah and others, 40 DLR-236 and Inspector, Railway Nirapatta Bahini Vs. Sohrab Ali, 43 DLR-79,though the decisions on the above issues will not change the ultimate result of the suit which is liable to be dismissed as being not maintainable.
To prove the case, the plaintiff examined one Md. Abdul Kaium, Executive Officer, Recovery Division of the Premier Bank Ltd. as P.W.1, who has deposed on behalf of the plaintiff on the basis of the authority given in his favour by the plaintiff-bank vide Exhibit-A. The said witness (P.W.1) proved certain documents including the Sanction Advice dated 13.07.2010 as Exhibit-B. According to the said sanction advice, the plaintiff-bank granted three categories of loans, namely: i) Specific Foreign LC (sight) for USD 12.00 Lac equivalent to Tk. 840 lac. ii) Term Loan for Tk. 756.00 Lac (As inner of L/C) and iii) Over Draft for Tk. 100 lac, in favour of M/s. Rainbow Sea Foods Limited (defendant no.4). The said witness (P.W.1) also deposed that the said credit facilities were granted in favour of the defendant No. 4 to purchase defendant no.1-vessel, F.V. Rainbow-1, a Hull Material-Steel vessel. L.O.A: 40 Meter, Breadth: 08 Meter, Depth: 4.40 Meter, Build in 2009, Country of Origin: Thailand with capacity of 300 MT, Number of Engine-1, Engine Serial No.33155198, Port of Registry: Chittagong, Registered in the year 2011. In order to secure the said loan, he deposed, the Managing Director of the defendant no.4-Company executed several charge documents, namely the Deed of Agreement of Charge by way of hypothecation (Exhibit-C), Irrevocable General Power of Attorney (Exhibit-D), Form No. 9B with the Registrar of Bangladesh Ships, Mercantile Marine Department, Chittagong (Exhibit-E). P W-1, accordingly, proved the said documents. He deposed that the borrower had mortgaged the said vessel in favour of the plaintiff-bank by executing the aforesaid Form No. 9B (Exhibit-E) with the Registrar of the Bangladesh Ships, Mercantile Marine Department, Chittagong. In support of the said mortgage, he deposed, the borrower also filed application to the Registrar of Bangladesh Ships, Mercantile Marine Department, Chittagong (Exhibit-F) and, accordingly, a confirmation of mortgage of defendant no.1 vessel was issued by the Principal Officer, Mercantile Marine Department, Chittagong (Exhibit-G). He also deposed that the said charges were also registered with the Registrar, Joint Stock Company (RJSC), Chittagong on 30.06.2011 (Exhibit-H). This witness further deposed that the said loan was rescheduled on several occasions and he, accordingly, proved the amended Sanction Advices bearing memo No. Premier/Ktg/Cr./ 623/2010, Premier/Ktg /Cr ./2011/1429, Premier/Ktg/Cr./2012/173 as Exhibit-I, J and K respectively. According to this witness, though the plaintiff issued demand notice dated 09.05.2011 (Exhibit-L), 27.06.2012 (Exhibit L1) and Legal Notice dated 12.12.2012 (Exhibit-M) for repayment of the said loan, the defendant borrowers failed to repay the said loan. According to the plaintiff-bank, vide Exhibit-M dated 17.12.2012, it wrote to the Bangladesh Ships, Mercantile Marine Department, Chittagong seeking permission to sell the said mortgaged vessel, however, the shipping department, vide Exhibit-O, asked them to file appropriate suit before the High Court Division. Hence, the plaintiff has filed the instant suit. He also deposed that though the initial claim was for Tk. 8,91,71,046.76, the present claim against the defendants as on 16.11.2014 stands Tk. 8,63,51,981.56. In support of such claim, the plaintiff also proved the bank statement in respect of the borrower as Exhibit-P. This witness was extensively cross-examined by the borrower-defendant nos.1-6.
Upon consideration of above deposition and exhibits, it appears that apart from suggesting that the suit is not maintainable and that a compromise has been reached between the parties for rescheduling the loan liability, the defendants did not examine any witness or prove any documents by such witness indicating that the said loan liability was subsequently rescheduled during pendency of the suit. Therefore, this Court cannot take into account such suggestion of the learned advocate for the defendants to the said witness, which was denied by the witness. Since the suggestions as regards subsequent compromise and re-schedulement of loan between the parties were specifically denied by P.W.1 and since no such document has been proved by the defendants before this Court to prove any such compromise between the parties, this Court cannot reach any decisions in favour of the defendants merely relying on oral submissions in the absence of any documentary evidence being presented before this Court.
It appears from the above deposition of P.W.1 as well as cross-examination of the said witness and the documents as proved by the same witness that the obtaining of loan by defendant No. 4 for the purchase of the said defendant no.1 vessel is an admitted position. It is also an admitted position that at certain stage the defendants failed to repay the said loan which prompted the plaintiff to issue demand notice, legal notice etc. and finally to file this suit. Though there is a specific averment in the written statement that due to a compromise on 13.10.2013, the parties rescheduled the loan by approval dated 13.10.2013 extending the tenure for payment up to 31.05.2016, no such evidence has been adduced by the defendants to prove their such case, particularly when such a suggestion of compromise was denied by the PW-1 during cross- Examination.
In view of above deposition of the witness and upon consideration of the documents proved by the plaintiff, this Court has no option but to hold that in so far as the loan facilities as well as failure of the defendants to repay the same are concerned, the plaintiff has succeeded in proving its case, though it has chosen a wrong forum. Accordingly, the above issue No. 2-8 are decided in favour of the plaintiff.
Though the issue Nos.2-8 have been decided in favour of the plaintiff, this Court does not have jurisdiction to pass any decree or even to entertain this suit in view of the legal position as discussed under issue no.1, which was decided against the plaintiff. Since the suit itself is not maintainable before this Court, the decision of this Court on issue no. 2-8 will be of no help to the plaintiff.
Regard being had to the above facts and circumstances of the case and discussions of law, the instant suit is liable to be dismissed as the same is not maintainable.

Accordingly, the suit is dismissed. Plaintiff is allowed to take back the original exhibits and documents upon furnishing photocopies thereof duly attested by the learned advocate for the plaintiff.
Ed.

Admiralty Suit No. 06 of 2013

President, Man. Comm. and ors.Vs. Mrs. Kawser Parvin and ors

Case No: CIVIL APPEAL NO. 106 OF 2009

Judge: Muha. Imman Ali, J.

Court: Appellate Division ,

Advocate: Mr. ASM Khalequzzaman, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record ,

Citation: 2019(2) LNJ (AD)

Case Year: 2019

Appellant: The President, Managing Committee, Bangshal Girls High School and another

Respondent: Mrs. Kawser Parvin and others

Subject: Constitution of Bangladesh

Delivery Date: 2020-03-15

APPELLATE DIVISION

(CIVIL)

Muhammad Imman Ali, J

Mirza Hussain Haider, J

And

Abu Bakar Siddiquee, J,

Judgment on

27-02-2019

}

The President, Managing Committee, Bangshal Girls High School and another

. . . Appellants

-Versus-

Mrs. Kawser Parvin and others

. . Respondents.

Constitution of Bangladesh, 1972

Article 102

The only ground upon which leave was granted is that the writ petitioner being an Assistant Teacher of a non-Government Secondary School, which is neither statutory body nor a local authority, the writ petition was not maintainable. However, since the decision challenged in the writ petition was of the Board of Secondary and Higher Secondary Education, we find that the writ petition was maintainable. Moreover, it appears that no such ground of maintability was urged before the High Court Division.

...10

For the Appellants: Mr. ASM Khalequzzaman, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record

For the Respondent No.1: Mrs. Shahanara Begum Advocate-on-Record

Respondent Nos.2-8: None represented

JUDGMENT

MUHAMMAD IMMAN ALI, J: This Civil Appeal, by leave, is directed against the judgement and order dated 11.02.2007 passed by the High Court Division in Writ Petition No.6772 of 2004 making the Rule Nisi absolute.

2. The facts of the case, in brief, are that the writ-petitioner-respondent No.1 herein was appointed as Assistant Teacher in Bangshal Girls' High School (the School) with effect from 03.08.1991 according to the decision of the Managing Committee of the School at a meeting held on 05.05.1992. The writ-petitioner had since been performing her duties. On completion of her probation period, the Managing Committee of the School at a meeting dated 25.7.1992 took a decision confirming her service. The writ-petitioner got herself admitted to B.Ed Programme under the Open University of Bangladesh. For appearing in the 4^th Semester examination, she took leave from the school authority from 23.06.2001 to 26.06.2001. Because of hartal, the examination scheduled to be held On 26.06.2001 could not take place and was ultimately shifted to 30.06.2001. On 27.06.2001, the writ-petitioner came to the school and performed her usual duties and after that she went to the office of writ-respondent No.8 (Headmistress of the School) informing her about the examinations to be held on 28.06.2001 and 30.06.2001 and prayed for leave for appearing in those remaining examinations. On 01.07.2001 the writ-petitioner came to the School and started discharging her routine duties. She also filed an application praying for leave of absence for those 2 days but to her utter surprise, she found that writ-respondent No.8 rejected the application for leave of absence. The following day, writ-respondent No.8 issued an order in writing restraining the writ-petitioner from performing all kinds of activities in the school for 15 days and served a notice on the writ-petitioner for showing cause within 7 days as to why action should not be taken against her for negligence of duties. On 07.07.2001, the writ-petitioner replied to the notice for showing cause denying the allegations levelled against her. The writ-petitioner made an application to writ-respondent No.8 stating that she was extremely sorry for not taking leave by filing an application for appearing in the remaining two papers of the 4^thsemester B.Ed examination and, therefore, she prayed for exoneration. By influencing writ-respondent No.7, writ-respondent No.8 succeeded in suspending the writ-petitioner from service. The writ-petitioner acknowledged receiving the order of suspension and made an application to respondent No.7, the President of the Managing Committee of the School requesting him for reconsideration of the order of suspension but without any result. Finding no other alternative, the writ-petitioner filed Title Suit No.260 of 2001 in the Court of Assistant Judge, 3^rd Court, Dhaka challenging the order of suspension. Without prior approval of the Board of Intermediate and Secondary Education, Dhaka (the Board), writ-respondent Nos.7 and 8 dismissed the writ-petitioner from service on 02.09.2001. Having collected a copy of the order of dismissal, the writ-petitioner made an amendment of the plaint incorporating the order of dismissal in it. During pendency of the suit, the writ-petitioner appeared before the Appeal and Arbitration Committee of the Board. In presence of both the parties, the Appeal and Arbitration Board verbally made a decision directing the writ-petitioner to withdraw the suit within 15 days and to give an undertaking on a non-judicial stamp of Tk.150/- that she would not remain absent in future without leave and that after compliance, the writ-petitioner would be entitled to join in service. On 10.08.2002, the writ-petitioner made a representation in writing to writ-respondent No.2, the Chairman of the Board (the Ex-Officio Chairman of the Appeal and Arbitration Board) praying for a written copy of the above decision. But the Board slept over the matter for about 5 months. Meanwhile, Title Suit No.260 of 2001 was dismissed by the judgement and decree dated 21.08.2002. The writ-petitioner appealed against the decree being Title Appeal No.512 of 2002. During pendency of Title Appeal No. 512 of 2002, the Appeal and Arbitration Committee communicated its decision dated 17.07.2002 and 05.08.2002 by a memo dated 08.1.2003 (Annexure-J) to the writ-petitioner after long 5 months of its decision. On receipt of the decision of the Appeal and Arbitration Committee, the writ-petitioner filed an application under Order XXIII Rule 1(1) of the Code of Civil Procedure (the Code) before the learned District Judge on 13.1.2003 for withdrawal of the appeal. The order of withdrawal was passed on the same date. Having fulfilled all the conditions set forth by the Appeal and Arbitration Committee of the Board, the writ-petitioner filed an application to writ-respondent No.7 on 21.01.2003 to reinstate her in service but was refused. On 04.02.2003 the writ-petitioner made a representation to the Board for noncompliance of its decision contained in the memo, dated 08.01.2003 by writ-respondent No.7. Writ-respondent No.5 communicated the decision of the Board by a memo dated 11.05.2003 directing writ-respondent No.8, the Head Mistress of the school to reinstate the writ-petitioner in her service within 30 days from the date of issuance of that memo. The order dated 11.05.2003 issued under the signature of writ-respondent No.5 is binding upon the school authority. On 19.05.2003 the writ-petitioner made another application to writ-respondent No.7 pursuant to the memo dated 11.05.2003 praying for reinstating her in service. Writ-respondent No.8 did not accept the copy of that application. The writ-petitioner then sent the same by registered post. On 17.06.2003, the writ-petitioner made another application to writ-respondent No.2 referring to the memo dated 11.05.2003 issued under the signature of writ-respondent No.5 requesting the Board Authority for taking effective measures for reinstating her in service. That letter was received by the office of writ-respondent No.2 on 17.06.2003. On 10.08.2003, the writ-petitioner made a representation to the Minister for Education stating all facts as well as her miserable economic condition. On 10.08.2003 the Minister directed the Chairman of the Board to resolve the matter, but unfortunately it did not happen. On 09.03.2004 the writ-petitioner made an application to writ-respondent No.2 for reinstating her in service. Similar applications were made thereafter, but without any result. On 27.06.2004, the writ-petitioner served a notice upon the writ-respondents demanding justice. After that, the writ-petitioner filed Writ Petition No.3844 of 2004 before the High Court Division praying for a direction upon the Managing Committee of the School to accept her joining pursuant to the decision of the Appeal and Arbitration Committee. The Rule Nisi was, however, discharged on the ground of its non-maintainability. Having obtained a copy of the judgement passed in the above writ petition, the writ-petitioner made an application to writ-respondent No.3 praying for reinstating her in service pursuant to the observation made by the High Court Division. Soon afterwards, the writ-petitioner came to know that the Appeal and Arbitration Committees suspended its own decision dated 08.01.2003 approving the illegal and unlawful order of dismissal passed by the school authority.

3. Writ-respondent No.8 filed an affidavit-in-opposition in the instant case controverting all the material allegations made in the writ petition. The case of writ-respondent No.8, in short, is that instead of giving reply to the allegations brought against the writ-petitioner, she made some wild allegations against the authority. The Managing Committee of the School advised the writ-petitioner to submit a fresh reply stating the actual facts, but she ignored the advice and filed an application to the Headmistress seeking permission to join her service on 15.07.2001. Instead of taking permission from the Managing Committee the writ-petitioner took away that application. When the Managing Committee, asked the writ-petitioner about her misbehaviour with the Headmistress, she misbehaved with one of the members of the Managing Committee from the category of the guardians. On 16.7.2001 the Managing Committee in its meeting formed a three-member enquiry committee headed by Mr. Aminullah, a member of the Managing Committee. According to the report of the committee, the writ-petitioner was suspended from service. During pendency of the suit the Appeal and Arbitration Committee of the Board advised the writ-petitioner to withdraw the suit and to file an undertaking, but she did not withdraw the suit. The suit was in fact dismissed by a decree against which the writ-petitioner filed an appeal.

4. After hearing the parties, by the impugned judgement and order, the High Court Division made the Rule Nisi absolute. Then, the writ-respondents filed Civil Petition for Leave to Appeal No.1147 of 2007 before this Division and leave was granted to consider the following submissions of the learned Advocate appearing for the petitioners:

5. “I. That a recognized non-government secondary school is neither a statutory body nor a local authority within the meaning of the General Clauses Act and as such, the writ petition filed by the respondent No.l was not maintainable. But the High Court Division failed to consider the same and passed the impugned judgment which is liable to be set aside.”

6. Mr. A.S.M. Khalequzzaman, learned Advocate appearing on behalf of the appellants made submissions in line with the grounds upon which leave was granted, reiterating that respondent No.1 was dismissed from service by the Managing Committee of a non-government school. Hence, the High Court Division erred in not holding that the writ petition was not maintainable.

7. Mrs. Shahanara Begum, learned Advocate-on-Record appearing on behalf of respondent No.1(writ-petitioner) made submissions in support of the impugned judgement and order of the High Court Division. The learned Advocate further submitted that the order impugned in the writ petition issued by the appellants dated 12.09.2004 was done with mala fide intention and is arbitrary. The Board Authority reviewed its earlier decision without giving respondent No.1 the opportunity of being heard, which caused serious prejudice to her and, therefore, the appeal is liable to be dismissed. She further submitted that with the withdrawal of the appeal under Order XXXIII, Rule 1(1) of the Code, there is no scope for implementing the decree dated 21.08.2002 passed in Title Suit No.260 of 2001 of the Court of 3^rd Assistant Judge, Dhaka. She further submitted that it is an admitted fact that the writ-respondents assured respondent No.1 herein that if she withdrew her case then she would be reinstated in her post, which cannot now be challenged by the appellants. She submitted that respondent No.1 withdrew the appeal in good faith and now she will be prejudiced if the instant appeal is not dismissed.

8. We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgement and order of the High Court Division and other connected papers on record.

9. We find from the records that by Memo dated 08.01.2003 the Secondary and Higher Secondary Education Board, Dhaka intimated to the writ petitioner-respondent No.1 herein the decision of the Appeal and Arbitration Committee taken in their meeting dated 17.07.2002 and 05.08.2002. The decision reached in those meetings was that the writ petitioner would submit an undertaking-‘ongikarnama’ on non-judicial stamp paper of Tk.150 that she will not commit such infraction in the future. The said ‘ongikarnama’ was to be filed along with her joining letter and that she would be allowed to join her service. The writ petitioner accordingly filed the ‘ongikarnama’ dated 21.01.2003 along with her joining letter on the same date. We also note that by letter dated 11.5.2003 (Annexure L-1)the Board of Secondary and Higher Secondary Education, Dhaka directed the Headmistress of Bongshal Girls’ High School to reinstate the Assistant Teacher, Mrs. Kawser Parven (writ-petitioner) in her service and to report compliance. Thereafter, by letter dated 12.09.2004 from the School Inspector, Secondary and Higher Secondary Education Board, Dhaka the earlier decision of the Board dated 17.07.2002 was stayed. It was from this decision of the Board of Secondary and High Secondary Education, which was impugned in the writ petition, the present appeal arises.

10. The only ground upon which leave was granted is that ‘the writ petitioner being an Assistant Teacher of a non-Government Secondary School, which is neither statutory body nor a local authority, the writ petition was not maintainable’. However, since the decision challenged in the writ petition was of the Board of Secondary and Higher Secondary Education, we find that the writ petition was maintainable. Moreover, it appears that no such ground of maintainability was urged before the High Court Division.

11. With regard to the merit of the writ petition, we find that the High Court Division dealt with the matter extensively in making the Rule Nisi absolute. Since no argument was made with regard to the merit of the case we do not propose to dwell on the matter.

12. In the facts and circumstances discussed above, we do not find any merit in this appeal, which is accordingly dismissed. There will, however, be no order as to costs.

Ed.

CIVIL APPEAL NO. 106 OF 2009

From the judgement and order dated 11^th of February, 2007 passed by the High Court Division in Writ Petition No.6772 of 2004.)

Prime Finance and Investment Limited Vs. Delwar H. Khan and others, VII ADC (2010) 459

Case No: Civil Petition for Leave to Appeal No. 1844 of 2008

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Citation: VII ADC (2010) 459

Case Year: 2010

Appellant: Prime Finance and Investment Limited

Respondent: Delwar H. Khan

Subject: Company Matter,

Delivery Date: 2009-8-18

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
ABM Khairul Haque J

Prime Finance and Investment Limited
……………….....Petitioner
Vs.
Delwar H. Khan and others
……........Respondents

Judgment
August 18, 2009.

The High Court Division was very much conscious of the broad fact of huge loan liabilities of the Company and was of the view that the same has to be put at halt and also considering the provision of Section 241(v) (vi) of the Companies Act deemed it just and equitable that the Company should be ordered to be wound up. Accordingly allowed the application for winding up of the Company and appointed official receiver as the liquidator and passed other incidental orders. …… (36)

Lawyers Involved:
Khan Saifur Rahman, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 1844 of 2008.
(From the judgment and order dated the 4th day of June, 2007 passed by the High Court Division in Matter No.174 of 2006).

JUDGMENT

Mohammad Fazlul Karim J.

1. This Petition for Leave to Appeal is directed against the judgment and order dated the 4th day of June, 2007 passed by the High Court Division in Matter No. 174 of 2006 allowing the application for winding up of the pro-forma respondent No.2 Gonophone Bangladesh Limited.

2. The facts involved in the case, in short, are that the petitioner is a shareholder and director of the respondent No.1 company ("the Company") holding 40,22,000 (forty lac twenty two thousand) shares i.e. 66% of the total shareholding in the Company. The Company was incorporated in the year 2000 with the objects, inter-alia, of carrying on business as owner, proprietor and service provider in software development, telecommunications and all types of information communication services and also to carry on businesses of operating, managing and supplying data processing and information retrieval system, and inventing, designing, developing, manufacturing, assembling, exporting and importing any telecommunication products, equipments or services.

3. It is stated in the application that at the time the Company was incorporated the original shareholders of Company were as follows:

Name of Shareholders	Nos. of Shares
Digitech Datalink Limited	43,500
Manik K. Bhattacharjee	22,000
Ziauddin Tariq Ali	8,000
Dr. S.M. Joglul A. Majumder	5,000
Mrs. Habiba Arshad	5,000
Nawed Iqbal	4,000
Kanu Chakraborty	4,000
Ehsan Karim	4,000
Subrata Gosh	2,500
Shaherul Haque Joarder	1,000
Arifur Rahman	1.000
Total shareholding	1,00,000

4. The face value of the shares was TK.10.00 per share.

5. Subsequently, the Company issued and allotted new shares in favour of Industrial Promotion and Development Company of Bangladesh Limited ("IPDC") and the petitioner. Thereafter, one of the shareholders Manik K. Bhattacharjee transferred his entire shareholding of 22,000 shares in the Company in favour of the petitioner on 26.12.2002 and as a consequence thereof the petitioner acquired a total of 40, 22,000 (forty lac twenty two thousand) shares out of the total number of 61, 00,000 shares, which is approximately 66% of the total shareholding in the Company. The Particulars of Shareholders dated 15.04.2003 filed by the Company before the office of the Registrar of Joint Stock Companies and Finance, the respondent No.2 (annexure-'B') show the share-holding position of the Company as follows:

Name of Shareholders	No. of Shares
Digitech Datalink Limited	43,500
Delwar Hossain Khan	40,22,000
Ziauddin Tariq Ali	8,000
Dr. S.M. Joglul A. Majumder	5,000
Mrs. Habiba Arshad	5,000
Nawed Iqbal	4,000
Kanu Chakraborty	4,000
Shaherul Haque Joarder	1,000
Arifur Rahman	1,000
Ehsan Karim	4,000
Subrata Gosh	2,500
IPDC	20,00,000
Total shareholding	61,00,000

6. The shareholding position of the Company to date stands as it appears in the said Particulars of Shareholders dated 15.04.2003.

7. It is stated in the application that the Company applied on 16.04.2000 to Ministry of Posts and Telecommunications of the Government of Bangladesh for a Licence as required under the Telegraph Act, 1885 for the Dhaka Zone. The Ministry of Post and Telecommunications vide its Memo No. Pt/Sec-5/ISP (GONOPHONE) 38/2000-138 dated 02.05.2000 issued the Licence for providing Internet Service within the Dhaka Zone.

8. At the time the Company started its business it entered into an agreement with Navana Real Estate Limited for purchase of an office space of 1320 sft. at Navana Tower situated at Plot No. 45, Gulshan Avenue, Gulshan-1, Dhaka. The price of the office space was fixed at TK.41,28,960.00. On 17.07.2000 the Company paid TK. 16,51,58400 as booking advance for the said office space. The rest of the amount of TK. 24,77,376.00 was payable in eight equal installments of TK. 3,09,67200 each to be paid on 07.08.2000, 07.09.2000, 07.10.2000, 07.11.2000, 07.12.2000, 07.01.2001, 07.02.2001 and 07.03.2001. The Company failed to stick to the payment schedule and still owes Navana certain amounts on account of the office space.

9. The Company executed a Loan Agreement on 08.05.2000 with Industrial Promotion and Development Company of Bangladesh Limited ("IPDC") for availing a local currency loan of TK.4,50,00,000 (Taka four crore, fifty lac only). The Company executed a Deed of Hypothecation in favour of IPDC on 16.05.2000 pursuant to the said Loan Agreement. Under the Deed of Hypothecation the Company created a first floating charge over all movable assets both present and future including all plant, machineries and equipments, stocks of raw materials, work in progress, finished goods, stock in transit, receivables and all documents of title, all insurance and proceeds of insurance. The shareholders of the Company also executed personal guaranties dated 08.05.2000 to secure the loan. IPDC thereafter further invested TK. 2,00,00,000.00 (Taka two crore) in the equity of the Company and pursuant to Subscription Agreement dated 25.05.2000 the Company issued 20, 00,000 (twenty lac) shares in favour of IPDC for the said amount.

10. The Industrial Development and Leasing Company Limited ("IDLC"), vide Agreement No. D000492A dated 18.05.2000 advanced TK.11,33,000,00/-(Taka eleven lac thirty three thousand only) as lease finance for office equipment and vehicles and a sum of TK. 14,14,830.00 (Taka fourteen lac fourteen thousand eight hundred and thirty only) to be repaid in 36 installments. The IDLC vide Agreement No.D0000492B dated 31.05.2000 advanced a further sum of TK.16, 50,000.00 (Taka sixteen lac fifty thousand only) as lease finance for office equipments and vehicles and a sum of TK.20, 60,150.00 (Taka twenty lac sixty thousand one hundred and fifty only) was to be repaid in 36 installments.

11. The Company entered into another agreement with the Havana Real Estate Limited on 23.07.2000 for purchasing roof top space measuring 525 sft. of the said Navana Tower for installation of antenna and equipment for providing ISP services. The total agreed price of the roof top space was TK.7,87,500.00 (Taka seven lac eighty seven thousand five hundred). The Company has failed to make the payment.

12. It is further stated in the application that with a view to seeking business opportunities outside Dhaka the Company applied to the Ministry of Post and Telecommunications on 22.10.2000 for ISP licenses to carry on its business in Chittagong and Sylhet. The Ministry of Post and Telecommunication vide Memo Nos. PT/Sec-ISP (Gonophone)-98/2000-508 and PT/Sec-5/ISP (Gonophone)-99/2000-509 both dated 30.11.2000 issued licenses for extending the business of the Company in Chittagong and Sylhet.

13. The Company commenced its business in the year 2000. The accounts of the Company up to 31.12.2000 were audited by M/s. M. J. Abedin & Co., Chartered Accountants. The said firm of Chartered Accountants submitted its audit report on 12.03.2001 which shows that the Company had incurred a loss of TK.4, 29,072/-that year.

14. The Company also obtained credit facilities from International Leasing and Financial Services Limited ("International leasing"). International Leasing vide sanction letter dated 21.03.2001 advanced lease finance of TK. 2,00,00,000.00 (Taka two crore only) for procurement of equipments to be repaid subject to the terms and conditions contained therein.

15. The United Leasing Company Ltd. is also a financier of the Company. The Company under a loan Agreement No.214/2001 dated 18.06.2001 borrowed a sum of TK.90, 80,352.00 (Taka ninety lac eighty thousand three hundred and fifty two only) for purchase of equipments and machineries.

16. The Company obtained another loan on 24.06.2001 for a sum of TK.2,00,00,000.00 (Taka two crore only) for purchasing of ISP capital machinery under a lease finance from Prime Finance and Investment Limited ("Prime Finance"). Prime Finance vide its sanction letter dated 24.06.2001 advanced the said sum of TK.2,00,00,000.00 (Taka two crore) to the Company which was to be repaid in 36 installments.

17. Other credit facilities enjoyed by the Company include lease finance from International Leasing on 03.09.2001 for TK. 16,65,000.00 (Taka sixteen lac sixty five thousand only) for procurement of vehicles; a sum of TK. 1,00,00,000.00 (Taka one crore) from Prime Finance on 15.11.2001 to be repaid within 6 months; a loan of TK. 5,87,000.00 (Taka five lac eighty seven thousand only) for procurement of vehicles from International Leasing on 24.11.2001 and a credit facility of TK.35.00 lac under a term finance agreement dated 23.01.2002 from Uttara Finance and Investments Ltd. ("Uttara Finance").

18. Having suffered a net loss of TK.4, 29,072.00 (Taka four lac twenty nine thousand seventy two only) in the year ending 2000 the Company could not improve its business position in subsequent years. M/S. T. Hussain & Co., Chartered Accountants audited the accounts of the Company for the year ended 31.12.2001. The firm submitted its' audit report for the period ended 31.12.2001 on 15.03.2002 which shows that the Company suffered loss of a sum of TK. 29,75,850.00 (Taka twenty nine lac seventy five thousand eight hundred fifty only). On the other hand, the Company had to take huge amount of loans and credit facilities from various financial institutions, in the year 2001 for purchasing equipments and other investments.

19. The Company in the course of its business obtained further loan from Uttara Finance on 22.05.2002 for purchase of erection and connection of radio link connectivity. Uttara Finance vide its sanction letter No. UFIL/G-22/2002 dated 22.05.2002 sanctioned a term finance of TK. 40,000,00 (Taka forty lacs) for purchase of radio link connectivity. The Directors of the Company extended personal guarantees and corporate guarantees respectively against the loan sanctioned by Uttara Finance.

20. In the meantime the Company defaulted in making payments against its loans from Prime Finance. Prime Finance rescheduled the loan amounts totaling a sum of TK. 1,11,98,612.00 on 30.06.2003.

21. Eastern Bank Ltd. ("EBL"), allowed credit facilities to the Company in the year 2002 vide sanction letter dated 18.05.2002 for a sum of TK. 20,00,000.00 (Taka twenty lac only).

22. M/S. T. Hussain & Co., Chartered Accountants, also audited the accounts of the Company for the year ended 31.12.2002. They submitted the audit report for the period ended 31.12.2002 on 22.03.2003. In the year 2002 the Company suffered an accumulated loss of TK. 94,59,124.00 (Taka ninety four lac fifty nine thousand only hundred and twenty four only).

23. The Company initially obtained ISP licenses from the Ministry of Telecommunications for running businesses at particular places of Dhaka, Chittagong and Sylhet. It was thought that if the periphery of business of the said Company is extended the Company might be able to convert itself into a profitable one/Therefore, the Company applied to Bangladesh Telecommunication Regulatory Commission (BTRC) for Nationwide ISP license. The BTRC vide Memo No. BTRC/N.W.ISP (8)/Gonophone / (Dhaka)/2002-13 dated 11.10.2003 issued a license for Nationwide Internet Service Provider ISP in favour of the Company. The license was issued for a period of five years with effect from 30.11.2002 renewable from year to year. Having obtained the license for Nationwide ISP Service on 11.10.2003, the Company expanded its business, but Company's profit continued to dwindle.

24. Since the Company has been incurring continuous loss each year it was not able to continue repayment of installments against the various credit facilities obtained from International Leasing. The lease finance and credit facilities were consolidated into one account and rescheduled with an acquisition cost of TK. 2,50,42,638.00 (Taka two crore fifty lac forty two thousand six hundred and thirty eight).

25. On request of the Company the amounts payable by the Company to Uttara Finance under term finance agreement dated 23.01.2002 were rescheduled on 15.12.2004. The Company owed Uttara Finance a sum of TK. 95,19,880.00 (Taka ninety five lac nineteen thousand eight hundred and eighty) as on 01.10.2006.

26. M/S. Dhar & Co.,Chartered Accountants, submitted the audited report for the period ended 31.12.2003 on 12.12.2004 from which it appears that the Company incurred a total loss of TK. 1,52,53,562.00 (Taka one crore fifty two lac fifty three thousand five hundred and sixty two). By this time the Company had obtained a huge amount of loan from various financial institutions and banks. The Company has failed to repay the loans.
27. IPDC is the biggest creditor of the Company. The total amount payable to IPDC as on 31.03.2005 stood at TK.7,55,61,093.00 (Taka Seven crore fifty five lac sixty one thousand ninety three). After persistent default, IPDC vide Deed of Agreement dated 04.06.2005 rescheduled the outstanding amount of TK. 7,55,61,093.00 (Taka Seven crore fifty five lac sixty one thousand ninety three).

28. By the end of 2004 loses of the Company were mounting. This state of affairs of the Company was reflected in the audit report for the year ended 31.12.2004 submitted by M/S. Dhar & Company, Chartered Accountants. The Company suffered a loss of TK. 1,17,55,769.00 (Taka one crore seventeen lac fifty five thousand one hundred and sixty nine) during the period ended 31.12.2004. The accumulated loss of the Company up to the end of year 2004 had reached TK. 2,70,08,731.00.

29. The Company's loans from International Leasing which stood at TK. 2,79,56,822/- were transferred to a term loan account to be repaid in 60 monthly installments with effect from 20.06.2005. The Company failed to continue payment of the installments with the leasing company. The total amount outstanding in the account is TK. 3,44,97,639.00. The Company had also defaulted in its payments to IPDC and other creditors. The total amount outstanding with IPDC is TK.9,31,23,161.00. An amount of TK.29,27,627.00 is outstanding and payable to United Leasing Company. The total outstanding against two lease finances advanced to the Company by Prime Finance stood at TK.3,88,72,074.00 as on 30.09.2006. The amounts payable to Uttara Finance and Investments stood at TK.95, 19,880.00 as on 1.10.2006. The Company failed to pay its loans and owes a sum of TK. 19,98,155.13 to Eastern Bank Limited which prompted the Bank to file a suit being Artha Rin Suit No.219 of 2006 before the Artha Rin Adalat No.3, Dhaka against the Company and others for recovery of the said amount. In the meantime the nationwide ISP licence of the Company expired on 29.11.2006 as the company failed to come up with the renewal fee. The Company is no longer the holder of the ISP licence.

30. The total amounts payable to various creditors of the Company are as follows:

IPDC	9,31,23,161.00
Prime Finance	3,88,72,074.00
International Leasing	3,44,97,639.00
Uttara Finance and Investments Ltd.	95,19,880.00
United Leasing Company Ltd.	29,27,627.00
Eastern Bank Limited	19,98,455.13
Navana Real Estate Limited	11,15,366.00
IDLC	1,1 6,087.00
Total Tk.	18,21,70,289.13

31. Pursuant to an order of this Court dated 11.12.2006 notices were issued upon the respondents and notices of presentation of this application were published in the "Bangladesh Today" and "The Daily Prothom Alo" on 24.12.2006 and "The Bangladesh Gazette” on 14.01.2007. The petitioner filed an affidavit in compliance on 24.01.2007.

32. The United leasing Company, the Uttara Finance and Investments Ltd., the International Leasing and Financial Services Limited, and Prime Finance and Investment Limited, all creditors of the respondent company filed applications for being added as parties in the instant Company matter and were added as respondents No.3, 4, 5, and 6 respectively.

33. This petition is opposed by an affidavit-in-opposition filed by Uttara Finance and Investment Limited, the added respondent no.4 where it is stated that the respondent No.1 Company had availed of credit facilities from them to the extent of Taka 75,00,000.00 and that the liability of the Company in the said account stood at Taka 1,50,42,925.00 as on 31.04.2007. It is alleged that the petitioner using the respondent Company as front had borrowed crores of taka from different leasing and financial institutions by fraudulent means and misappropriated the Company funds. It is further stated that although the money was procured for purchasing of machinery and other equipments there is no evidence that the Company had procured the same. Although the Industrial Promotion and Development Company of Bangladesh Limited (IPDC) had not filed an application for being added as a party they filed an affidavit-in-opposition stating therein that the Company had obtained a Term Loan and an Equity Investment Loan from them for a sum of TK. 4,50,00,000.00 (Taka Four Crore Fifty lac and) and TK. 2,00,00,000/- (Taka Two Crore) respectively. It is stated that the IPDC is the largest creditor of the respondent Company and that the petitioner has admitted and acknowledged the liabilities. It is further stated that the IPDC has filed a suit before the Artha Rin Court No.2 being Artha Rin Suit No. 206 of 2006 against the company and its shareholders for realization of sum of TK. 19,50,00,000.00 (Taka Nineteen Crore Fifty Lac only). This does not include the Term Loan and the Equity Investment loan. In fact the Company is liable to pay IPDC the total sum of TK. 27,46,14,667.00 (Taka Twenty Seven Crore Forty Seven Lac Fourteen Thousand Six Hundred and Sixty seven) including the Term Loan and the Equity Investment loan.

34. Mr. Khan Saifur Rahman, learned Counsel, appearing for the petitioner submitted that the High Court Division ought to have considered that the loans disbursed to the company were secured and further thereto, the directors of the company furnished personal guarantees to the lender institutions including the petitioner for repayment of the loans and in such premises, the winding up of the company is neither warranted nor can it be solution either for the company itself or on the question of paying off its creditors proportionately and as such, the winding up of the company which is being used as a shield by some delinquent persons to secure their pilferage has been unwarranted and in that view of the matter the impugned judgment and order is liable to be set aside; that after deliberate and fraudulent acts and omissions of respondent No. 1 and his cohorts in the company pushing it at the verge of its legal death resulting in consecutive yearly financial losses, the purposes of taking loans from the petitioner and other financial institutions and failing to utilizes/invest the same for running a prospective business like that of the company are palpably to misappropriate and pilfer the public money and evidently the farce to get the company wound up had been devised and aimed at clearly to meet that end a long time ago by respondent No.1 and his cohorts and as such, the High Court Division ought not to have allowed the winding up of the company allowing respondent No.1 and others getting away with the misappropriation and pilferage of such a huge amount of public money and in that view of the matter. The learned Counsel further submitted that the High Court Division missed to notice that the respondent No.1 filed the application for winding up of the pro-forma respondent No.2 company without complying with or fulfilling any of the conditions as laid down in Section 241 of the Companies Act, 1994; that the respondent No.1 Delwar H. Khan being 66% share holder of the pro-forma respondent No.2 company and having full control over the management of the said company ought not to have obtained loan of crores of taka from as many as eight companies by suppressing facts during the period when the said company carrying on a very prospective business was shown to have gone through financial loss; that the pro forma respondent No.2 company was actually a one man show where the respondent No.1, Delwar H. Khan was the pioneer with 66% share who from the very commencement of his so-called business proceeded in an unfair manner so as to misappropriate public money and the High Court Division having come to a finding that it is indeed outrageous that huge amounts of money had been borrowed by the company from various financial institutions and no reasonable steps were taken to liquidate the debts. Serious questions arise as to the competence and/or integrity of the persons who were involved in the management of the affairs of the company, the High Court Division ought not have allowed the said application for winding up respondent No.2 company while it is transparent that the respondent No.1 who misappropriated such a huge amount of public money. The learned Counsel finally submitted that the respondent No.1 with mala fide intention staidly while the ISP license of the company required renewal on payment of renewal fee which expired on 29.11.2006 for default to render the company dysfunctional and get the company wound up and run away after misappropriating such a huge amount of public money.

35. It appears that huge amounts of money had been borrowed by the Company from various financial institutions and no reasonable step was taken to liquidate the debts. Serious question arise as to the competence and/or integrity of the persons who were involved in the management of the affairs of the company. However, the fact remains that the loan liabilities of the Company is in excess of TK. 18,21,70,000.00 (Taka eighteen crore twenty One lac and seventy thousand only) and that the Company is unable to pay its debts. Further the nationwide ISP Licence of the company having expired on 29.01.2006 the company has been rendered dysfunctional. The High Court Division considering the admitted position that the Company is unable to pay its debts coupled with the fact that in the absence of the ISP Licence the Company cannot carry on its business.

36. The High Court Division was also very much conscious of the broad fact of huge loan liabilities of the Company and was of the view that the same has to be put at halt and also considering the provision of section 241(v) (vi) of the Companies Act deemed it just and equitable that the Company should be ordered to be wound up. Accordingly allowed the application for winding up of the Company and appointed official receiver as the liquidator and passed other incidental orders.

37. In view of the above, we find no substance in the submissions of the learned Counsel for the petitioner.

38. Accordingly, the petition is dismissed.

Ed.

Probir Kumar Basak Chowdhury Vs. Thana Nirbahi Officer, Manikganj and others

Case No: Civil Petition for Leave to Appeal No. 359 of 2005.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Bivash Chandra Biswas,,

Citation: 16 BLT (AD) (2008) 94

Case Year: 2008

Appellant: Probir Kumar Basak Chowdhury

Respondent: Thana Nirbahi Officer, Manikganj and others

Subject: Property Law,

Delivery Date: 2006-08-03

Probir Kumar Basak Chowdhury Vs. Thana Nirbahi Officer, Manikganj and others
16 BLT (AD) (2008) 94

Supreme Court
Appellate Division
(Civil)

Present:
Md. Rahul Amin J
Md.Tafazzul Islam J

Probir Kumar Basak Chowdhury………………........Petitioner
Vs.
Thana Nirbahi Officer, Manikganj and others……………….......Respondents

Judgment
August 3, 2006.

Hindu Personal Law
Debutter—proof of dedication

High Court Division observed that in the instant suit, the plaintiffs save and except stating that the dedication was made orally failed to adduce any evidence to prove that the suit property was dedicated to Deity; it is the case of the plaintiffs that dedication made in the year 1956 and so this dedication is not so old to suggest that no materials could be available— we are of the view that the High Court Division, on proper consideration of the evidence and the materials on record arrived at the correct decision. …… (7)

Cases Referred To-
Robert penaru vs. Habibur Rahman reported in 8 BLC (AD) 115Anil Kumar Sarkar and others vs. Sree Sree Kalimata Bigraha reported in 36 DLR 4716 DLR (SC) 457

Lawyers Involved:
Bivash Chandra Biswas, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 359 of 2005.
(From the judgment dated 14.1.2004 by the High Court Division passed in Civil Revision No. 675 of 1997).

Judgment

Md. Tafazzul Islam J. - This petition for leave to appeal arises out of the judgment dated 14.1.2004 of a Single Bench of the High Court Division passed in Civil Revision No. 675 of 1997 discharging the Rule obtained against the judgment and decree dated 23.7.1996 in Title Appeal No.3 of 1991 of the learned Joint District Judge, 1st Court, Manikganj affirming those of dated 29. 11.1990 of the Court of Assistant Judge, Manikganj Sadar in Title Suit No. 425 of 1977 dismissing the suit.

2. The petitioner along with Giriza Shaha filed the above suit for declaration that the suit property is a debottor property and not khas property of the government and that the notice for eviction under section 92 of the State Acquisition and Tenancy Act, 1950 being No. 4 of 1976-77 dated 28.10.1977 is illegal on the averments that two brothers, Mohendra and Lalit were the original owners of suit plot No. 28 measuring .31 acres under C.S. Khatian No. 63 in equal shares and by amicable partition. Mahendra possessed the eastern half and Lalit possessed the western Half; Lalit sold his share to Shashi Bhusan Chokraborty who then sold the same on 30.6.1943 to Raj an Mohan Basak, the predecessor-in-interest of the plaintiff; Ranjan Mohan Basek having died intestate leaving two daughters namely Devi Basak and Mrinalini Basak their names were duly recorded in S.A. Khatian together with the names of three sons of Mohendra in their eight anna shares of the suit Plot No. 28; the above Devi Basak and Mrinalini Basak were entrusted with the duty of looking after the due performance of the Sheba Puja of the family idol as their father Rajan Mohan Basak, during his life time in the year 1980, orally dedicated the entire suit property along with other property to the Deity; sometime thereafter Devi Basak and Mrinalini Basak left for India by relinquishing charge of Sheba Puja in favour of Jogmaya who was the only daughter of Debi Basak; Devi Basak and Mrinalini Basak died in India; thereafter the said Jogmaya was killed by the Pak-Army during the war of Liberation and then her son, the plaintiff No.1 had been performing the Sheba Puja as the shebait of the idol and possessing the property of the said idol; but on 28.10.1977 the then Sub-Divisional Officer, Manikganj treating the suit property as Khas land, served a notice ordering for eviction of Girija Shaha, the plaintiff No. 2 and the father of proforma respondents 16-17 herein, who was monthly tenant under plaintiff No.1 and hence the suit.

3. The defendant Nos. 1-4, who are the respondents No. 1-4 herein, along with the defendant No. 5, the predecessor of respondents 5-15 herein, contested the suit by filing two sets of written statement denying the material allegations made in the plaint and contending, into alia, that the S. A. recorded tenants left the suit property without paying any rents and accordingly Abandoned Case No. 437 of 1966 was started under section 92 of the State Acquisition and Tenancy Act 1950 and then by Order No. 14110 dated 30.12.1966 the suit property was treated as Khas property of the Government and out of the same .16 acre land was settled to A.T.M. Ayub by Settlement Case No. 163 of 1966 and .15 acres of land was settled to Kalimuddin Mia by Settlement Case No. 184 of 1966 and the above leaseholders also executed kabuliyat in favour of defendant No. 2 and since then they have been possessing the suit property by paying rents to the Government and the suit property is not debottor property and the plaintiffs have no title and possession over the suit land.

4. The learned Assistant Judge, after hearing, dismissed the suit. As against that the plaintiffs preferred Title Appeal No.3 of 1991 in the Court of learned District Judge, Manikganj and the learned Joint District Judge, First Court, Manikganj, after hearing, dismissed the appeal. The plaintiffs then moved the High Court Division and obtained Rule in Civil Revision No. 675 of 1999 and after hearing the High Court Division discharged the Rule.

5. We have heard the learned counsel for the petitioner and perused the judgment and order materials on record.

6. As it appears the High Court Division discharged the Rule holding that in the plaint the plaintiff No.1 described himself as "¯^qs †mevBZ c‡¶ kªx kªx †m j¶x bvivqb weMÖn msNai cvwUª," but in the plaint no relationship was disclosed as to the attachment of the plaintiff No. 2 with the deity and he was a simple tenant under plaintiff No. 1 and so it remained unexplained as to why instead of the Deity, Sree Lakshmi Narayan Bigraha, why two private individuals instituted the suit; in the plaint there are some descriptions of plaintiff No.1 relating to the deity but in respect of plaintiff No. 2 there is no description as to how he became a co plaintiff to get a declaration that the declaration that the suit property as debottor property; it is the settled principal of law that the Deity has a legal character and accordingly it can sue and be sued and can also maintain a suit but the Deity cannot move from one place to another place as such the Deity has to do every thing through next friend and all the affairs of the Deity are looked after by a shebayet, who in fact, performs the duty of manager and moreover in the memorandum of appeal the plaintiff No. 2 has been left out from the category of the appellant and this discrepancy shows that the plaintiffs do not know what is heir actual cause of action and further the Deity did not file the suit and some unscrupulous persons of different status, in their individual capacity, filed the suit and accordingly since the suit having been filed by two private individuals instead of the Deity itself, the suit is not maintainable and that regarding the question of existence of a Deity the entire case of the plaintiffs rests on oral dedication and although plaintiffs examined witnesses to prove the existence of a private Deity but the evidence on record shows that the private Deity was in the Chila Kotha of the homestead and there is no credible evidence to show as to when the Deity stepped to the courtyard of the house and P.W. 2 in his deposition stated that the suit land is low land and D.W.5 in his deposition stated there is a biscuit factory oh the suit land; the evidence of the witnesses of the plaintiffs also show that the Deity was shifted from the Chilakotha of the Western Building of the plaintiff No. 1 to the suit land in 1980-81 and the plaintiff No. 1, after selling his property, having no other place to live, constructed a house with a pucca latrine and pucca bath in the suit land where he, along with his younger brother and other family members are living and a society in the name of Jobath Songha was also situated on the suit land; the deposition of kalidas Majumder P.W.3 shows that plaintiff No. 1 used this land for his own benefit; exhibit Cha, the certified copy of the judgment of Title Suit No. 126 of 1967, showed that the suit land has been declared as Khas land of the Government and further Mohanta Rishi, the D.W.3, of the above suit deposed to the effect that he, as a drum bitter (Dhuli) by beating of drum served notice; the above suit was relating to other half the original owner of the suit property but the records showed that none raised any objection when the suit property of the said suit was made khas of the government under section 92 of the State Acquisition and Tenancy Act 1950; although the plaintiff of this suit was not a party to that suit' but in the case of Robert penaru vs. Habibur Rahman reported in 8 BLC (AD) 115 it has been that a judgment, whether inter parties or not, may be conclusive evidence against all persons of its existence, date and legal effect as distinguished from the accuracy of the decision rendered and in the case Anil Kumar Sarkar and others vs. Sree Sree Kalimata Bigraha reported in 36 DLR 47 cited by the learned Advocate for the petitioner, it was held that if there is no oral evidence available for long lapse of time regarding dedication of property for worship of a Deity then some documentary evidence, if available, is enough to establish the dedication but in the instant suit, the plaintiffs save and except stating that the dedication was made orally failed to adduce any evidence to prove that the suit property was dedicated to Deity; it is the case of the plaintiffs that dedication was made in the year 1956 and so this dedication is not so old to suggest that no materials could be available; the decision made in 16 DLR (SC) 457 is relating as to how a dedication or endowment is made and there is no disagreement with the proposition laid down in the above decision but since the plaintiffs failed to prove the dedication itself by any legal evidence the dedications is also of no help to the plaintiffs.

7. We are of the view that the High Court Division, on proper consideration of the evidence and the materials on record arrived at the correct decision. The learned counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for interference.
The petition is dismissed.
Ed.

Prof. Abdus Shahid & ors. Vs. Md. Monirul Islam, (S. H. Md. Nurul Huda Jaigirdar, J.)

Case No: First Miscellaneous Appeal No. 71 of 2018

Judge: Md. Nuruzzaman, J And S. H. Md. Nurul Huda Jaigirdar, J.

Court: High Court Division,

Advocate: Mr. Md. Raziuddin Sarwar. Adv. ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Professor Abdus Shahid and others

Respondent: Md. Monirul Islam

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J.

Judgment on

13.08.2018

}

Professor Abdus Shahid and others

. . .Defendant-Appellants

-Versus-

Md. Monirul Islam

. . .Plaintiff-Respondent.

Code of Civil Procedure (V of 1908)

Order XL, Rule 1

The learned Joint District Judge, allowed the application under Order 40 Rule (1) of the Code of Civil Procedure which calls for interference by this court inasmuch as there is no reason for appointment of a receiver in the present case, when the court did not find any mismanagement or damage to the property in question and there is an order of injunction restraining the transfer of property in question. . . .(11 and 14)

Specific Relief Act 1877 (I of 1877)

Section 42

Keeping the principles aforesaid in view could there be appointment of a receiver in a suit for declaration of title simplifier or to immovable property? The problem is how the court on the conclusion of the suit could make over possession to the party so entitled, when there is no such prayer, nor the suit framed in accordance with Section 42 of the Specific Relief Act to get complete relief. . . . (12)

Mahammad Parial Vs. Bashir Ahmed and others. P.L.D. 1957, 625 and Krishna Deb and others Vs. Surendra Krishna Nandi and others in 34 C.W. N. 440 ref.

Mr. Md. Raziuddin Sarwar. Adv.

. . . Defendant -Appellants.

Mr. M.Ashraf Ali, Adv.

. . . For the plaintiff-Opposite party.

JUDGMENT

S. H. Md. Nurul Huda Jaigirdar,J: This instant Appeal is directed against the Judgment and Order No.33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No.75 of 2015 allowing the application for appointing receiver, the defendant as appellants prefer this instant appeal.

2. Plaintiff filed Title Suit No.75 of 2015 in the Court of Joint District Judge,3rd Court, Dhaka for declaration of title, khas possession, permanent injunction and damage alleging, inter alia, that the disputed land was originally belonged to Haji Abdus Sobhan which he acquired by deed of conveyance No.2637 dated 11.04.1957 from the previous owners namely Amir Uddin Dhali and Oli Mia dhali. Haji Abdus Sobhan during his lifetime by a registered deed of Wasiyatnama being No. 04 dated 03.07.1969 allocated his 10 katha land in favour of his four sons namely 1st son Professor Abdus Shahid, 2nd son Mohammad Abdur Rashid, 3rd son Mohammad Abdul Latif and 4th son Mohammad Abdul Matin. During lifetime of the said Abdus Sobhan the said 10 Katha land was partitioned and according to the deed of 1969 his 3rd son Abdul Latif i.e. the vendor of the plaintiff got h is 2 katha land. The vendor of the plaintiff on 24.01.2011 entered into a registered deed of agreement for sale being No.377 to sell his 2 kathas of land to the plaintiff at the total price of BDT 95,00,000( Ninety Five Lace). Accordingly the vendor received BDT 40, 00,000(Forty Lace) as advance payment from the plaintiff and erected boundary walls and constructed a tin-shade structure and brought utility connection. The land was ultimately sold on12.09.2011, upon receipt of remaining price, vide registered deed of sale being NO. 4971 and possession was handed over to the plaintiff on the same day i.e. on 12.09.2011. The plaintiff after purchase used to possess the land by constructing a tin shed house. The defendants forcefully evicted the plaintiff from the suit land. Hence the plaintiff filed the suit.

3. The defendant No.1-3 contested the suit by filing a written statement contending inter alia that the property originally belonged to Hazi Abdus Sobhan , father of the defendant Nos.1-2 and grandfather of defendant No.3, who registered a wasiyatnama in favour of his four sons , namely,(1) Abdus Shahid (2 katha), (2) Abdus Rashid ( 2 Katha), (3) Abdul Latif ( 2 Katha), and (4) Abdul Matin ( 2 Katha) on 03.07.1969. That on 17.07.1976, Abdus Sobhan changed his earlier Wasiyatnama and executed 2nd Wasiyatnama so as to remove Abdul Latif from the list of recipients and executed the same in favour of his sons, namely, (1) Abdus Shahid, (2) Lutful Muyeed alias Sanchay(Grandson), (3) Kamranur Rashid (Grandson), (4) Abdul Matin and(5) Lutful Kabir Tushar(Grandson), son of Abdul Latif. Thereafter Alhaj Abdus Sobhan Changed his mind and executed also registered three deeds of gift on 06.01.1079 in favour of his sons (1) Abdus Shahid, (2) Abdul Matin and (3) Kamranur Rashid alias Tuhin (Grandoson), son of Abdul Rashid, measuring 7.75 katha and, accordingly, the remaining 2.25 kathas of land remained under the ownership of Hazi Abdus Sobhan, who died in the year of 1987. After death of Abdus Sobhan, the suit property i.e., 2.25 katha, was possessed by the defendants including Abdul Latif (vendor of the plaintiff). As a result, for proper management of the suit property, a partition Suit being Title Suit No. 76 of 1997 was instituted by Abdus Sahid and the heirs of Abdus Sobhan was made defendant. Abdul Latif was also a defendant of the partition suit and the suit was decreed on compromise. Thereafter, Dhaka City Khatian was prepared as per the compromise decree and accordingly, Abdul Latif (vendor of the plaintiff) got his share of 405 sft. Of land. However Abdul Latif (vendor of the plaintiff) sold 2 Kathas land to the plaintiff.

4. The plaintiff respondent filed an application for appointment of receiver under order 40 Rule (1) of the Code of Civil Procedure alleging inter alia that the defendants appeared in suit and filed Written Statement on 03.08.2015. The suit property consists of a building and tin-shade structures where some tenants are let out to live after eviction of the plaintiff. The defendants are unlawfully collecting rent from the tenants in spite of the fact that the entire suit property is owned by the plaintiff and that since the suit property is owned by the plaintiff and the trespasser defendants are collecting the rent and misappropriating the same a Receiver is urgently needed to be appointed by the Honorable Court to collect the rents and profits thereof for protecting the interest of plaintiff and to avoid unlawful gain by the defendants and also to avoid multiplicity of other proceedings to recover the rent by separate money suit and that the Receiver may be from the officers of the Court or an Advocate who will collect the rent and deposit the same in the Court as Civil Deposit.

5. The defendant appellant filed written objection against the application under order 40 Rule(1) of the Code of Civil Procedure contending that the defendants have been possessing the suit land peacefully and they have also been possessing the adjoining land which they have obtained from their father and grandfather. The plaintiff had no possession over the suit property and the story of dispossession is out right false. The defendants have the chronological title and possession over the suit property and the plaintiff created/ obtained sale deed from a title less person who had no possession. The plaintiff, depending on some false and fabricated documents, is trying to grab the suit property and as such the application is liable to be rejected. Further contended that established principle that a receiver should not be appointed in suit for possession. Moreover receiver will not be appointed in the instant case because all the circumstances is in favour of the defendants.

6. After hearing both the parties the learned Joint District Judge, 3red Court, Dhaka by his impugned judgment and order allowed the application for appointment of receiver.

7. Being aggrieved by and dissatisfied with the Order No.33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No.75 of 2015 allowing the application for appointment of receiver , the defendant as appellants preferred this First Miscellaneous appeal.

8. Mr. Motahar Hossain with Mr. Reziuddin Sarwar, the learned Advocate appearing on behalf of the defendant-appellants and Mr.M. Ashraf Ali the learned Advocate appearing on behalf of the Plaintiff-Respondent by filing an application for vacating the order of stay contested the appeal and the Civil Rule No. 762 (F.M) of 2017.

9. Mr. Motahar Hossain with Mr. Reziuddin Sarwar the learned Advocate, appearing on behalf of the defendant Appellant petitioners takes us through the certified copy of the plaint of Title Suit No. 75 of 2015 (Annexure-‘A’ to the application for stay),certified copy of the application for appointment of receiver (Annexure-‘B’ to the application for stay), certified copy of the written objection filed by the defendant appellant against the application under Order 40 Rule(1) of the Code of Civil Procedure(Annexure-‘C’ to the application for stay) and submits that the learned trial Judge ought to have considered that there is no scope or necessity for appoint of a receiver since the defendant appellants have already been restrained by an order of injunction passed by the learned Joint District Judge from transferring the suit properties and, as such, the impugned order is liable to be set aside. He further submits that the order of the learned trial Judge is ex-facie illegal inasmuch as the plaintiff failed to prove that there is a prima facie case requiring the appointment of receiver and, furthermore, such appointment may be made if it is considered just and convenient and, as such, the same is liable to be set aside. He next submits that the learned Joint District Judge failed to consider that there is no specific allegations for causing damage or wastage or mismanagement or destruction to the suit property and the learned Court below without assigning any reasons or any findings allowed the application filed the plaintiff-respondent which is not tenable in the eye of law and, as such the same is liable to be set aside. He next added that the learned Joint District Judge ought to have held that the existence of dispute between the parties is no ground for appointing a receiver and furthermore, it is required to be proved that not merely the plaintiffs interest but also the interest of all the parties in the suit and the suit property is required to be protected and, as such, the impugned order is liable to be set aside. He next added that the impugned order on the face of the record shows that the learned Joint District Judge did not apply his judicial mind to the facts and circumstances of the case and materials on record. He next added that the learned Judge of the trial Court failed to consider that there is no special circumstance in allowing the application for appointing a receiver and, as such, the same is liable to be set aside. He finally submits that the learned Joint District Judge in his impugned order failed to state the circumstances under which the appointment of receiver was made and, as such, the appointment of receiver is arbitrary and illegal, and the same is liable to be set aside.

10. Mr.M.Ashraf Ali, the learned Advocate appearing on behalf of the Plaintiff-Respondent-Opposite Party contended that the plaintiff had possessed the suit land after his purchase and the defendants after evicting the plaintiff from the suit land are now collecting the rent from there. Thus for the purpose of proper management of property which is subject matter of a suit and for the benefit of all concerned the trial court rightly appointed the receiver which calls for no interference by this Court He further contended that the power to appoint a receiver is discretionary and trial court after considering all relevant documents and considering the case of the contesting parties found in its discretion that appointment of receiver would be proper and rightly passed the impugned order for the purpose of serving the ends of justice and protecting the rights of all the parties interested in the controversy.

11. As regards the jurisdiction of the civil court to appoint receiver, it is covered under order 40 of the Code of Civil Procedure and the principles governing such appointment are well settled. It is also mentioned in the Specific Relief Act and treated it as one of the specific reliefs. There could not be any doubt or dispute that civil court has the jurisdiction to appoint a Receiver, but that jurisdiction depends on various circumstances. It will be profitable to refer to a decision of Madras High Court reported in A.I.R 1955 Madras 430. On a review of a large number of reported decisions of different High Courts of Sub-continent, it has laid down five principles governing the appointment of Receiver by a Civil Court and they may be enumerated as follows:

(1) The appointment of a receiver pending in a suit is a matter resting in the discretion of the court.

(2) The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has very excellent chance of succeeding in the suit.

(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. A court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said that a court will never appoint a receiver merely on the ground that it will do no harm.

(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a ‘defacto’ possession since that might cause irreparable wrong. If the dispute is as to title only, the court very reluctantly disturbs possession by receiver but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the court will inter pose by receiver for the security of the property. It would be different where the property is shown to be ‘in medio’ that is to say in the enjoyment of no one.

(5) The Court, on the application made for the appointment of the receiver looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. He must come to court with clean hands and should not have disentitled himself to the equitable relief by latches, delay, acquiescence etc.

In this connection we may refer to another decision of West Pakistan High Court of Karachi Bench in the case of Mahammad Parial Vs. Bashir Ahmed and others. P.L.D. 1957 page 625 where in a suit for declaration of title and for injunction, a receiver was appointed, but the Karachi Bench set aside such appointment and while so doing made a very important observation, saying that it is to be seen whether the court can ultimately hand over possession of immovable property. In another decision in the case of Krishna Deb and others Vs. Surendra Krishna Nandi and others in 34 C.W. N. Page 440 it has been held that a creditor who has got no lion in the property cannot claim the appointment of a receiver. Woodrofee on Receiver may be mentioned to see, what is the purpose and effect of appointment of receiver; he says “The possession of a receiver appointed by the civil court during pendency of a suit should be regard as the possession for the party who might ultimately turn out to be the true owner and entitled to possession as such.” By appointment of a receiver property becomes custodian legis. The receiver is the officer of the court he holds the property as agent of the court. In the ultimate analysis, the receiver holds the property for the party entitled to possession.

12. Keeping the principles aforesaid in view could there be appointment of a receiver in a suit for declaration of title simpliciter to immovable property? The problem is how the court on the conclusion of the suit could make over possession to the party so entitled, when there is no such prayer, nor the suit framed in accordance with Section 42 of the Specific Relief Act to get complete relief. The court has to answer in the negative.

13. On consideration of the application under Order 40 Rule (1) of the Code of Civil Procedure it appears to us that no ingredients whatsoever or nothing on record to indicate exigency of circumstances that may justify the appointment of a receiver.

14. To consider the legality and propriety of the impugned order under challenged in the First Miscellaneous Appeal, the learned Joint District Judge, 3^rd Court, Dhaka without took into account the legal aspect of the matter, facts and circumstances of the suit allowed the application under Order 40 Rule (1) of the Code of Civil Procedure which calls for interference by this court. Having regard to the principals as described above, it appears that there is no reason for appointment of a receiver in the present case, particularly when the court below did not find any mismanagement or damage to the property in question and there is an order of injunction restraining the transfer of property in question.

15. The submissions made and decisions as referred by the learned Advocate for the appellants and on perusal of the grounds set forth in the appeal, it is our considered view that the appeal has got merit and the same is, thus, liable to be allowed.

16. In the result, the First Miscellaneous Appeal is allowed without any order as to cost. Consequently, the judgment and order No. 33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No. 75 of 2015 allowing the application for appointing receiver is hereby set aside and the application under Order 40 Rule (1) is rejected.

17. The relevant Civil Rule No. 762 (FM)/ 2017 is disposed of. Accordingly, without any order as to costs.

18. Send down a copy of the judgment to the concerned Court at once.

Ed.

First Miscellaneous Appeal No. 71 of 2018

Professor M. Samsul Alam Vs. Bangladesh and others, (Naima Haider, J.)

Case No: Writ Petition No. 5673 of 2016

Court: High Court Division,

Advocate: Mr. Tanjib-ul-Alam, with Mr. Md. Saquibuzzaman, Advocates,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Professor M. Samsul

Respondent: Government of Bangladesh, represented by the Secretary, Energy Division, Ministry of Energy, Power and Mineral Resources, and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Naima Haider, J

And

Abu Taher Md. Saifur Rahman, J.

Judgment on

24.08.2017

}

Professor M. Samsul

. . . Petitioner

-Versus-

Government of Bangladesh, represented by the Secretary, Energy Division, Ministry of Energy, Power and Mineral Resources, and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 102

The position of the respondent No.4 is not maintainable since that would lead to an unacceptable situation where no court or tribunal would have the power to review the ultra vires exercise of government authority tainted by corruption. The judicial review powers of the Bangladesh Supreme Court also cannot be exercised by an ICSID tribunal since ICSID tribunals have no powers to seize the proceeds of crime being enjoyed by the respondents No.4 and No.5 in Bangladesh. ICSID tribunals may only issue a pecuniary award but cannot punish corruption or declare invalid unlawful exercise of executive powers. The proper forum for the determination of issues such as unlawful exercise of executive authority tainted by bribery and corruption of Bangladesh Government officials is the Bangladesh Supreme Court applying Bangladeshi law under Article 102 of the Bangladesh Constitution. ICSID tribunals may benefit from our finding and there does not need to be any conflict since we are not infringing on the jurisdiction of the ICSID tribunals. The corruption and illegality is at the heart of the contracts containing the arbitration agreements. If enforcement of any final arbitral award is sought in Bangladesh the Bangladeshi courts, at the time of making a decision whether to enforce an award arising from such contracts, would have to balance the public policy considerations of giving effect to the illegal contracts with the public policy consideration of recognizing the finality of ICSID arbitral awards. Regarding the third part of the Rule, it is clear that respondent No.5 (Niko Canada), the parent company which actually pleaded guilty to acts of corruption in Bangladesh and which initiated the corruption scheme, is not even party to the pending cases before the ICSID tribunals. The ICSID tribunals have no powers over the assets of respondent No.5 in Bangladesh. For these reasons, we cannot agree with the respondent No.4 that the Rule is infructuous. . . . (48)

Evidence Act (I of 1872)

Section 18

It is not necessary for us to rely on these statements since there are other undisputed facts and evidence such as bank records, contracts for payments to Government officials, and the own admissions of respondent No.4 that establish the entire chain of corrupt payments. Furthermore, we have noted the admissions of the respondents No. 4 and No.5 regarding the payments made in 2005 to State Minister AKM Mosharraf Hossain in order to get the GPSA as well as in 2003 to Mr. Salim Bhuiyan for arranging meetings for procurement of the JVA. The undisputed facts and the undisputed documentary evidence is adequate for us to reach the inevitable conclusion that the JVA and GPSA were procured by corruption, through the set up of a corrupt scheme during the period 2003 to 2006, thus rendering the JVA and GPSA without law authority and of no legal effect, i.e. void ab initio. . . . (50)

Constitution of Bangladesh, 1972

Article 102

We find no merit in the argument that a writ petition challenging the improper use of Executive powers has to wait for a pending criminal case against the Government officials who have also been criminally charged for criminal misconduct arising from the same facts. If that argument was valid then the ICSID tribunals would also have to wait till completion of the criminal cases till making any finding of corruption. The finding of corruption is not the exclusive domain of the criminal courts or arbitral tribunals, though only criminal courts may impose criminal sanctions. . . . (51)

Penal Code (XLV of 1860)

Section163

Taking or giving gratification to private individuals for their personal influence with public servants is also a crime. Thus, under the laws of Bangladesh there is no requirement that only direct payments to a Government official can constitute corruption. It would be sufficient if the gratification is extracted on a promise of exercise of personal influence with an official, to bring the offence within the mischief of this section 163 of the Penal Code. Proof of actual exercise of personal influence with an official is not necessary. . . . (59)

Penal Code (XLV of 1860)

Section 161

The Penal Code of Bangladesh clearly defines what constitutes bribery. Section 161 of the Penal Code deals with “Public servant taking gratification other than legal remuneration in respect of an official act”. Under section 161 of the Penal Code any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act amounts to bribery. Giving anything whose value is estimable in money is bribery. Under section 161 three things are necessary to constitute bribe – (i) the receiver of bribe must be a public servant; (ii) he must receive or solicit an illegal gratification; and (iii) it must be received as a motive or reward for doing an official act which he is empowered to do. . . . (61)

Code of Civil Procedure (V of 1908)

Section 11

Res judicata requires uniformity of causes of action and parties. The petition before the Supreme Court of Bangladesh arises from a different cause of action and there is no uniformity of parties. There was no cause of action arising from the corruption and bribery in writ petition No. 6911 of 2005. The parties in the present writ petition are also not the same parties. . . . (63)

United Nations Convention Against Corruption

Articles 31, 51, 53 and 54

As a legally binding international anti-corruption agreement, UNCAC provides a comprehensive set of measures to be implemented by state parties to prevent, combat, and prosecute corruption. On ratification, the UNCAC created legal obligations for Bangladesh and those have to be enforced through the Executive branch and/or the Judiciary of Bangladesh. Thus, Bangladesh has a duty under international law, as laid out in Article 31 of the UNCAC, to confiscate the proceeds of crime. Article 51 of the UNCAC makes the return of assets which are proceeds of crime a fundamental principle of the UNCAC. As such all proceeds of crime acquired by the respondents No.4 and No.5, through the use of a corrupt scheme, are to be returned to the state of Bangladesh. Article 53 mandates provisions for the direct recovery of corruption assets, including laws permitting private civil causes of action to recover damages owed to victim states and the recognition of a victim state’s claim as a legitimate owner of stolen assets. Article 54 requires State Parties to give effect to any confiscation order for corruption proceeds issued in another State Party, and to “consider taking such measures as may be necessary to allow confiscation…without a criminal conviction.” . . . (74)

Constitution of Bangladesh, 1972

Article 102

The Constitution under Article 102 empowers us with the duty to ensure that this vision is achieved by declaring any ultra vires exercise of Government authority of no legal effect and also declaring void any resultant contract procured through illegal acts such as corruption. . . . (84)

Ummu Kawsar Salsabil Vs. Shams Corporation (Pvt) Ltd. & Ors, 5 BLD (AD) 263 (1985); Abdul Mannan Khan Vs. Government of Bangladesh, Civil Appeal No. 139 of 2005; Civil Petition for Leave to Appeal No. 596 of 2005 paragraphs 1419; Biswanath Bhattacharya Vs. Union of India (UOI) AIR 2014 SC 1003; Tanzania Electric Supply Company Limited Vs. Independent Power Tanzania Limited (ICSID Case No. ARB/98/8); K N Enterprise Vs. Eastern Bank Limited 63 DLR (2011) 370; Engineer Mahmudul-ul Islam and others Vs. Government of the People's Republic of Bangladesh and others, 2003 23 BLD 80; Dr. Mobashir Hassan and Others Vs. Federation of Pakistan PLD 2010 and Biswanath Bhattacharya Vs. Union of India (UOI) AIR (2014) SC 1003 ref.

Mr. Tanjib-ul-Alam, with

Mr. Md. Saquibuzzaman, Advocates

. . . For the Petitioner

Mr. Mahbubey Alam, Attorney General, with

Mr. Ekramul Haque Tutul, DAG

Mr. Md. Mokleshur Rahman, DAG

Mr. Samarendra Nath Biswas, AAG

Ms. Farida Yeasmin, AAG

. . . For the Respondent No.1

Mr. Ashraf Uddin Bhuiyan, Advocate

. . . For the respondent Nos.2 & 3

Mr. Rokanuddin Mahmud, with

Mr. Mustafizur Rahman Khan and

Ms. Safayat Sultana Rumey, Advocates

. . . For the Respondent No.4

JUDGMENT

Naima Haider, J: In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, a Rule Nisi was issued on 09.05.2016calling upon the respondents to show cause as to why the Joint Venture Agreement For The Development and Production of Petroleum From the Marginal/Abandoned Chattak and Feni Fields (“JVA”) dated 16.10.2003 between the respondents No.3 and No.4 should not be declared to be without lawful authority and of no legal effect and thus void ab initio; and why the Gas Purchase and Sale Agreement for the sale of gas from Feni Gas Field (“GPSA”) dated 27.12.2006 between the respondents No.2, as Buyer, and a joint venture between respondents No.3 and No.4, as Seller, should not be declared to be without lawful authority and of no legal effect and thus void ab initio; and also why the assets of respondents No.4 and No.5, including their shareholding interest in Tullow Bangladesh Limited concerning Block-9 should not be attached and seized to provide adequate compensation for the 2005 blowouts, and/or such other or further order or orders be passed as this Court may deem fit and proper.

2. The facts leading to the issuance of the Rule, in brief, are as set out below.

The petitioner is a reputed energy expert and one of the leading activists in the protection of natural resources of the country. In light of his academic and professional experience, the petitioner serves as an advisor to the Consumer Association of Bangladesh (CAB) with regard to the energy sector and has conducted hearings at the Bangladesh Energy Regulatory Commission (BERC). Being a respected citizen of the country the petitioner is concerned about the welfare of the people and is vigilant about the duties of government authorities to act in public interest and protect the rights and resources of the people in discharging their statutory duties. The petitioner is considered an expert in the energy sector and has been vocal against corruption, fraud, and bribery and has for a long time promoted environmental causes in the interest of the public.

The respondent No. 1 is the Government of Bangladesh, represented by the Secretary, Energy Division, Ministry of Energy, Power and Mineral Resources, which has the exclusive right and authority to explore, develop, exploit, produce, process, refine and market petroleum resources within Bangladesh and to enter into any petroleum agreements with any person for the purpose of petroleum operations under the Bangladesh Petroleum Act, 1974, and entitled to delegate such of its rights and powers to statutory bodies; the respondent No. 2 is the Bangladesh Oil, Gas and Mineral Corporation (Petrobangla), a statutory corporation established under the Bangladesh Oil, Gas and Mineral Corporation Ordinance, 1985 and has been authorized and entrusted with responsibilities which include, inter alia, to prepare and implement programs for exploration and development of oil, gas, and mineral resources and implement the Petroleum Act, 1974 and authorized to establish subsidiary corporations; the respondent No. 3 is a company incorporated under the Companies Act, a wholly owned subsidiary of the respondent No. 2, and falls within the definition of “statutory public authority” under Article 152 of the Constitution; the respondent No. 4 is Niko Resources (Bangladesh) Limited, a private company incorporated under the laws of Barbados, which entered into the JVA with the respondent No.3 and the GPSA with the respondent No.2; respondent No.5 is Niko Resources Limited, a publicly traded corporation with head office in Calgary, Alberta, Canada and the parent company of the respondent No. 4, and which owns 80% working interest in the Chattak and Feni gas fields and 60 % working interest in Block 9 gas field in Bangladesh.

3. Being aggrieved by and dissatisfied, with the inaction and the manifest and continuing failures on the part of the respondents No.1, No.2 and No. 3 to act in compliance with the Constitution and laws of Bangladesh by

(i) not treating the JVA as being without lawful authority and of no legal effect and thus void ab initio despite having evidence that the JVA was procured through bribery, fraud, and corruption in violation of the laws of Bangladesh;

(ii) not treating the GPSA as being without lawful authority and of no legal effect and thus void ab initio despite having evidence that the GPSA was procured through bribery, fraud, and corruption in violation of the laws of Bangladesh;

(iii) the mala fide and continuing failure of the respondents No.1, No.2, and No.3 to seek adequate compensation from the respondent No. 4 and No.5 for losses caused by two successive blowouts in 2005 in Chattak (“the 2005 blowouts”) resulting from not undertaking petroleum operations in a proper and workmanlike manner in accordance with good oil-field practice as required under law;

(iv) the continuing payments being made to respondent No. 5, the beneficial owners of the respondent No. 4, circumventing in a fraudulent manner the rule and injunction issued by this Hon’ble High Court Division of the Supreme Court in the judgment dated 02.05.10 in writ petition No. 6911 of 2005, and

(v) the manifest omissions and actions of the respondents No. 2 and No. 3 in ICSID Case Nos. ARB/10/11 and ARB/10/18, Niko Resources (Bangladesh) Ltd. v. Bangladesh Petroleum Exploration & Production Company Limited (“Bapex”) and Bangladesh Oil Gas and Mineral Corporation (“Petrobangla”) in misleading the International Centre for Settlement of Investment Disputes (“ICSID”) tribunals and acting against the public interest of Bangladesh with the mala fide intention of conferring undue benefits to the respondent No.4, the petitioner has moved to this Court and obtained the Rule Nisi.

4. The facts, in brief, relevant for the purpose of disposal of this Rule are that in 1997 respondent No.4 participated in Bangladesh’s second bid round for Production Sharing Contracts (“PSC”), including Block 9 PSC, to develop oil and gas resources and was the least qualified, both technically and financially, of seven bidders as evidenced by the report dated 28.09.1997 submitted to the respondent No.2 by Arthur Anderson, a reputed international consultant. Having failed to qualify for the exploration of gas fields in Bangladesh through a competitive and transparent bidding process, the respondent No. 4 proposed to carry out a study, partly funded by the Canadian International Development Agency (CIDA), and entered into a Framework of Understanding for Study for the Development and Production of Hydrocarbon from Non Producing Marginal Gas Fields of Chattak, Feni, and Kamta (“FOU”)”dated 23.08.1999 with respondent No. 3. As part of the study under the FOU, in February 2000, respondent No.3 and respondent No. 4 produced a report entitled “Bangladesh Marginal Field Evaluation Chattak,Feni, and Kamta, February 2000” which expressly stated that Chattak East is an “exploration structure” and an “exploration target”. The respondents No. 3 and No.4 stated in the Marginal Field Evaluation that the February 2000 report concluded the requirement of the FOU and a joint venture contact may be executed between respondent No. 3 and No.4 as stipulated in the study upon approval of respondents No. 1 and No.2.After the conclusion of the study requirements of FOU, there was not, and could not have been, any binding legal obligations to grant any rights over natural resources, through execution of the JVA, to the respondent No.4 without any competitive bid in a non-transparent manner simply because respondent No.4 under the terms of the FOU was allowed to conduct a study of marginal/abandoned fields. Neither did the FOU treat Chattak East as a marginal/abandoned field.

5. Subsequently, the respondent No.1 issued a “Draft Procedure for Development of Marginal/Abandoned Gas Fields” where “marginal/ abandoned fields” were distinguished from “gas fields” as follows:

“In Bangladesh 22 gas fields of sizes ranging from 25 to 4000 Bcf have so far been discovered. Fifteen of these gas fields have been brought under production. Some of these fields which have been in the process of depletion for continued production over time have become commercially unviable and remained unattended. There are yet other gas fields, which have not been put under operation for want of commercial viability development under the existing techno-economic considerations, may be termed marginal/abandoned.”

An Explanatory Note in the Draft Procedure stated that “For the purposes of these procedures Chattak, Kamta, and Feni gas fields shall be deemed to have been declared marginal/abandoned gas fields”. The petitioner submits that this reference to Chattak in the Draft Procedure clearly refers to “Chattak West” since “Chattak East” had been determined in the FOU study and agreed by all parties to be an “exploration target” and clearly could not have been a “gas field” or been declared “marginal/abandoned” since Chattak East was never even explored, let alone been depleted due to production or declared commercially unviable.

6. Two years later on 01.10.2003 (i.e. 15 days before the JVA was executed on 16.10.2003), the respondent No. 4 entered into a Management Services Contract with Stratum Development Limited, a company registered in Jersey, Channel Islands and represented by Mr. Qasim Sharif, a person who later became Vice President, South Asia of respondent No.4. Under the terms of the Management Services Contract the parties agreed that respondent No.4 “has executed” a JVA with respondent No.3 and that “Stratum shall invoice Niko Bangladesh for a retainer fee in the sum of US$20,000 per month effective October 1, 2003”. According to clause 6 of the Management Service Contract it was agreed that the fee shall cover Stratum’s fee in addition to all costs and expenses made or incurred by Stratum related to the provision of the Services such as “payments made to expedite or secure the performance by a foreign (i.e. Bangladeshi)public official of any act of a routine nature that is part of the foreign public official’s duties and functions, such as the issuance of permits or licenses” required for the Niko Project.

7. Respondent No.4 had also executed a Consultancy Agreement dated 27.07.1999 with Stratum Development Limited (represented by Mr. Qasim Sharif). According to Clause 6 of the Consultancy Agreement Stratum agreed to assist in the execution of a joint venture agreement with the respondent No. 3 (BAPEX) for Kamta, Chattak and Feni Gas Fields for which respondent No.4 (Niko Bangladesh) agreed to pay a “CONSULTANCY FEE” equal to “US$0.03 per mcf (three cents per thousand standard cubic feet)” of the Niko Bangladesh’s net share of established proven reserves and “a minimum initial consulting fee of US DOLLARS FOUR MILLION” within 15 days of execution of the JVA.

8. Respondent No.4 (Niko Bangladesh) has admitted to having another consultancy agreement with another company called Nationwide (owned by a Bangladeshi national Mr. Salim Bhuiyan) under which, following the execution of the JVA, respondent No.5 (Niko Canada),through Stratum, paid US$500,000 to Mr. Bhuiyan and admitted that a key part of the services provided by Mr. Bhuiyan was obtaining and arranging meetings with appropriate personnel as BAPEX, Petrobangla and the Ministry of Energy.

9. Mr. Salim Bhuiyan paid another politically influential person, Mr. Giasuddin Al Mamoon, an amount of Tk. 10,800,000 (Taka one crore eight lac) by Standard Chartered Bank Pay Order dated 07.01.2004.Mr. Mamoon is currently in prison following his conviction for money laundering activities in association with his business partner and close friend, Mr. Tarique Rahman, son of former Prime Minister Khaleda Zia. As part of an investigation into Niko’s corrupt practices in Bangladesh, Mr.Mamoon admitted to the Royal Canadian Mounted Police (“RCMP”) in interviews dated 01.11.2008 and 02.11.2008 of receiving the payments from Mr. Salim Bhuiyan for Mr. Mamoon’s role as a sub-agent for Niko. Mr. Mamoon stated that fifty per cent of his power came from the fact that he was close friend and business partner of Mr. Tarique Rahman, son of the former Prime Minister Khaleda Zia.Mr. Salim Bhuiyan provided a statement before a Magistrate Court under section 164 of the Criminal Procedure Code and confirmed paying Tk. 180,00,000 (one crore eighty lac taka) to Mr. Mamoon, Tk. 60,00,000 (sixty lac taka) to State Minister for Energy Mr. AKM Mosharraf Hossain, and retaining the remaining Tk. 60,00,000 (sixty lac) of Niko’s fees for himself. This was how the $500,000 consultancy fee (approximately Tk. 300,00,000) paid by respondent No.5 to Nationwide (owned by Mr. Salim Bhuiyan) was distributed. Even though the confessional statement of Mr. Salim Bhuiyan had subsequently retracted the truth of Mr. Salim Bhuiyan’s statement is supported by other documentary evidence, bank records, pay orders, and most importantly the own admissions of respondent No.4.

10. On 23.06.2011 the respondent No.5 entered into a plea bargain with Canadian Crown Prosecution and admitted to certain acts of corruption in an Agreed Statement of Facts which reveals the following undisputed facts:

- Niko Canada (respondent No.5) is a Canadian public company which owns 100% of Niko Resources Caymans, which is a holding company. Niko Resources Caymans in turn owns 100% of Niko Bangladesh (respondent No.4) which is incorporated in Barbados.

- Niko Canada directly and indirectly provided improper benefits to a Bangladeshi public official in order to further the business objectives of Niko Canada and its subsidiaries.

- Niko Bangladesh provided the use of a vehicle costing one hundred and ninety thousand nine hundred and eighty four Canadian dollars ($190,984) to Mr. AKMMosharraf Hossain, the Bangladeshi State Minister for Energy and Mineral Resources in order to influence the Minister in dealings with Niko Bangladesh within the context of ongoing business dealings. Niko Canada acknowledged that, having funded Niko Bangladesh’s acquisition of the vehicle and knowing that Niko Bangladesh delivered it as aforesaid, Niko Canada was responsible under Canadian criminal law principles for the act.

- Additionally, Niko Canada paid the travel and accommodation expenses for Minister AKM Mosharraf Hossain to travel from Bangladesh to Calgary to attend the GO EXPO oil and gas exposition, and onward to New York and Chicago, so that the Minister could visit his family who lived there, the cost being approximately$5000.Mr. AKM Mosharraf Hossain was accompanied by Mr. Salim Bhuiyan.

- On 31.12.2004, after procurement of the JVA, Niko Bangladesh began drilling operations in the Chattak-2 gas field. On 07.01.2005 an explosion occurred at the Chattak-2 gas well in the Tengratila gas field in north-eastern Bangladesh. While no people were killed, there was significant damage to the surrounding village. As an example, a school that was located meters from the location is no longer usable. The gas fire burned for weeks and many people were forced to evacuate.

- The result was a large amount of negative press for the Niko family of companies and for the government of Bangladesh as many rumours began to circulate about the fairness of the entire JVA award process.

- Niko Bangladesh (respondent No.4) had still yet to negotiate the GPSA with Petrobangla (respondent No. 2).

- Mr. Qasim Sharif was Niko’s in-country agent in Bangladesh until signing of the JVA with BAPEX in October 2003 at which time he became employed by Niko Canada as the President of Niko Bangladesh. Mr.Qasim Sharif described the bribe to former State Minister AKM Mosharraf as a “gift” and “a commonplace part of doing business in Bangladesh” and stated that “these things are done all the time” and “they give these sorts of things in these situations”.

- A second major explosion occurred at Tengratila gas field on 24.06.2005.

- Niko Canada agreed to pay a fine of eight million two hundred and sixty thousand Canadian dollars ($8,260,000) plus the 15% Victim Fine Surcharge totaling nine million four hundred ninety nine thousand Canadian dollars ($9,499,000.00).

- It was agreed by Niko Canada that the “fine reflects that Niko Canada made these payments in order to persuade the Bangladeshi Energy Minister to exercise influence to ensure that Niko was able to secure a gas purchase and sales agreement (i.e. the GPSA) acceptable to Niko, as well as to ensure the company was dealt with fairly in relation to claims for compensation for the blowouts, which represented potentially very large amounts of money.”

11. The drilling operations of the respondent No.4 in the Chattak gas field, procured through the JVA, caused two massive blowouts leading to substantial damage to the gas fields, the environment, and the health of the people in the surrounding areas. No adequate compensation has yet been paid by the respondents No.4 or No.5 for the 2005 blowouts. On the contrary till the issuance of the Rule and interim order dated 09.05.2016 respondent No.5, through its subsidiary, had been carrying out its operations and businesses in Bangladesh, including the operations of the Block 9 PSC for which it had initially been assessed by Arthur Anderson to be the least qualified bidder.

12. On 16.06.2016 the respondent No.4 filed an application for vacating the interim order dated 09.05.2016. On 24.07.2016 the petitioner filed an application for direction for production of evidence obtained through the Mutual Legal Assistance processes between Bangladesh, Canada, and the United States. On 01.08.2016 the respondent No.4 filed an affidavit-in-opposition to the application of the petition for direction for production of evidence. On 11.08.16 the petitioner filed an application for addition of party of a consultant to the Bangladesh Anti-Corruption Commission (ACC). On 14.08.16 the respondent No.4 filed an affidavit-in-opposition to the application of the petitioner for addition of party. On 30.03.2017 the respondent No.4 filed an application for the discharge of Rule for res judicata. On 02.04.2017 the respondent No.1 filed an affidavit-in-opposition against the application for discharging the Rule. On 04.04.2017, the petitioner filed an affidavit-in-opposition against the application for discharge of the Rule. On 07.05.2017 Mr. Moudud Ahmed filed an application for addition of party. On 12.07.2017 the respondent No.1 filed a supplementary affidavit to the affidavit dated 02.04.2017. Through these applications, the petitioner, respondent No.1, and respondent No.4 have all brought to our attention documents and information which are relevant for the disposal of the Rule. All the applications had been kept on the record for disposal at the time of the hearing of the Rule. On 24.08.16 the respondent No.4 filed an application to treat all its applications as its affidavit-in-opposition contesting the Rule.

13. The respondent No. 1 entered appearance by filing an affidavit-in-opposition to the application for the discharge of the Rule but did not contest the Rule. However, the respondent No.1 brought to our attention important evidence and documents gathered through Mutual Legal Assistance (“MLA”) arrangements between Bangladesh, Canada, and the United States. Respondent No. 2 and No.3 did not file any affidavits in opposition contesting the Rule. The respondents No.5 also did not file any affidavit-in-opposition contesting the Rule.

14. The case of the petitioner as set out in the petition, in short, is as follows:

That the respondent No.5, having the least financial or technical capacity of seven bidders in the PSC bid round in 1997, eventually managed to procure the JVA for its subsidiary, respondent No.4,through a non-competitive and non-transparent process by resorting to fraud, bribery, and corruption. In 2011 the respondent No.5 entered into a plea bargain with the Canadian Crown Prosecution and pleaded guilty to providing illegal gratification to Bangladesh State Minister for Energy AKM Mosharraf Hossain to further the business objectives of its subsidiaries. It was admitted that the respondents No. 4 and No.5 gave a motor vehicle as bribe to the then State Minister for Energy. Respondent No.5 also admitted to paying bribes in the form of personal travel expenses for the State Minister for Energy. In exchange of the guilty plea, the Canadian authorities did not pursue the other charges of corruption. The Bangladesh Anti-Corruption Commission (“ACC”) has pending criminal cases against several individuals including Mr. Qasim Sharif (the former President of the respondent No. 4), Mr. Salim Bhuiyan (agent for respondent No.4 and No.5), Mr. Giasuddin Al Mamoon (sub-agent for respondent No.4 and No.5), the former State Minister for Energy Mr. AKM Mosharraf Hossain (recipient of the bribes from respondents No.4 and No.5), and former Prime Minister Begum Khaleda Zia. The evidence in the ACC case and the evidence from the Canadian authorities show that the procurement of the JVA and GPSA was through corruption. In January 2005 the respondent No.4 started drilling operations in Chattak and caused two successive blowouts resulting in loss and damage which has now been estimated to be over United States Dollar one billion (US$1,000,000,000). Bangladesh Environment Lawyers Association (“BELA”) had filed writ petition No. 6911 of 2005 before this Hon’ble Court seeking a rule, inter alia, as to why the JVA should not be treated as being nullity in the eye of law. The facts presented in the writ petition No. 6911 of 2005 dealt with the procedural aspects of execution of the JVA and BELA could not provide any evidence of corruption as the evidence was not available at that time. A judgment dated 17.11.2009 was passed in writ petition No. 6911 of 2005 stating that “Niko cannot avoid its responsibility of giving adequate compensation for the losses caused by two successive blowouts” and that the “Rule succeeds in part” and it was also stated that “Niko is directed to pay compensation money as per the decision taken in the money suit now pending in the Court of the Joint District Judge or as per mutual agreement among the parties. The respondents are restrained by an order of injunction from making any payment to respondent No. 10 (Niko Resources Bangladesh Limited). This order of injunction shall remain in force till disposal of the money suit or till amicable settlement amongst the parties, whichever is earlier.”

15. In spite of the two successive blowouts in 2005 and despite not giving adequate compensation the respondent No. 4 yet again managed to procure the GPSA through corruption.

16. Following the judgment dated 17.11.2009, which prevented any payments being made to the respondent No.4 till disposal of the pending money suit for compensation for the blowouts, the respondent No. 4 in 2010 filed two arbitration cases against respondents No.2 and No.3 before the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”) being ICSID Case Nos. ARB/10/11 and ARB/10/18seeking payment for the gas supplied from Feni gas field and a declaration of non-liability of respondent No.4 (Niko Bangladesh)for the 2005 blowouts at the Chattak gas fields. On 19.08.2013 the ICSID tribunals issued a Decision on Jurisdiction where it relied on the judgment in writ petition No. 6911 of 2005 dated 17.11.2009 to conclude that there was no impropriety in the procurement of the JVA or GPSA. In paragraph 404 of the Decision on Jurisdiction the ICSID tribunals noted that a witness for the respondent No. 4referred to the BELA proceedings (i.e. writ petition No. 6911 of 2005) stating that the case concluded “that the contracts (i.e. the JVA and GPSA) were awarded properly and that they are valid”. Surprisingly, he was not contradicted by the respondents No. 2 and No.3 or their witnesses.

17. At the outset, Mr. Tanjib-ulAlam, learned Advocate, appearing on behalf of the petitioner, submits that no evidence of corruption was produced before the ICSID tribunals by the counsel of the respondents No.2 and No.3 at the time of issuance by the ICSID tribunals of a Decision on Jurisdiction dated 19.08.2013 and by this inaction the respondents No.2 and No.3 have acted against the public interest of Bangladesh with the mala fide intention of conferring undue benefits to the respondent No.4.

18. The petitioner further submits that respondent No. 5, which committed the acts of corruption in Bangladesh, has continued to own and retain 60% of the interest in the Block 9 PSC gas field operated by Tullow Bangladesh Limited for which it had been declared to be the least qualified, both financially and technically, of all seven bidders assessed by the Arthur Anderson report dated 28.09.1997 submitted to the respondent No.2. The respondent No. 5, through Tullow Bangladesh Limited, continued to receive payments from respondent No. 2 despite not having paid the adequate compensation for the 2005 blowouts till these payments were stopped by the Rule and interim order dated 09.05.2016.

19. Mr. Tanjib-ulAlam submits that admittedly the respondents No. 4 and No.5 have committed acts of corruption in the procurement of the JVA and GPSA. The procurement of the JVA and GPSA, through bribery and corruption, renders the JVA and GPSA void ab initio under section 23 of the Contract Act. He submits that the respondents should not be allowed to give effect to the JVA and GPSA procured through corruption since “an opportunity to carry on a business dishonestly is barred under section 23 of the Contract Act in as much as the same is opposed to the public policy particularly when the transaction is with the Government” as observed by the Appellate Division of the Supreme Court of Bangladesh in Ummu Kawsar Salsabil v Shams Corporation (Pvt) Ltd. &Ors, 5 BLD (AD) 263 (1985).

20. Mr. Tanjib-ulAlam submits that the admitted facts show that the respondent No. 4 and respondent No.5 have violated a number of provisions of the Penal Code including offences related to public servants under sections 161-165, abatement under sections 107-119, criminal conspiracy under section 120, as well as offences under section 5 of the Prevention of Corruption Act, 1947.The US Dollar four million (US$ 4,000,000) Consultancy Agreement between Stratum and respondent No.4 admittedly was aimed to facilitate the payment of gratification to Bangladesh Government officials. Furthermore, under the Nationwide Agreement, Mr. Salim Bhuiyan was admittedly paid US$ five hundred thousand (US$ 500,000) by respondents No.4 and No.5 as gratification for his exercise of influence over Bangladeshi Government officials. The US$4 million Consultancy Agreement, under which US$ 2.93 million was paid on 21.10.03 i.e. five days after the execution of the JVA dated 16.10.03,is admitted by Niko to have been used for making a payment of US$500,000 to Mr. Salim Bhuiyan for his influence and ability to obtain meetings with Bangladeshi Government officials. These admissions by the respondent No. 4 of payments to Stratum (owned by Mr. Qasim Sharif) and then to Mr. Salim Bhuiyan are admitted facts which taint the JVA and GPSA with corruption and render them void ab initio. In addition, the Stratum Management Contract clearly violated sections 161-165 of the Penal Code since it expressly stated that the respondent No. 4 would pay Stratum for “payments made to expedite or secure the performance” by Bangladesh public officials for “issuance of permits or licenses required for” the Niko Project. Respondent No.4 admits that these payments were made and banking records show that US$ 2.93 million out of the $5 million was paid 5 days after the execution of the JVA. Furthermore, the agreement with Nationwide (owned by Mr. Salim Bhuiyan) constitutes violation of section 163 of the Penal Code since Mr.Bhuiyan obtained the payment of US$500,000from Niko for his exercise of “personal influence” over Bangladeshi Government officials. Respondent No.4blatantly admits to paying US$500,000 immediately after the JVA for Mr. Bhuiyan’s influence and ability to arrange meetings with Bangladeshi Government officials which enabled the JVA to be procured.

21. Mr. Tanjib-ul Alam submits that there is no res judicata of the present petition with the pending ICSID cases or the previous writ petition No. 6911 filed by BELA. This petition arises from a different cause of action and there is no uniformity of parties. The parties in the present writ petition are not the same parties before the pending ICSID arbitration cases, in particular respondent No.5 (which admitted to the acts of corruption) is not a party to the ICSID proceedings and neither is respondent No.1. In addition, there is no res judicata since the ICSID tribunals have not issued any final award or judgment. There is also no res judicata of the present petition with the previous judgment in writ petition No. 6911 of 2005 since that judgment did not look into the issue of corruption and BELA did not produce any evidence of corruption. BELA tried to show that the process of granting of the exploration rights in Chattak East, which was not a marginal/abandoned field, to Niko under the JVA was improper since the process was non-transparent and without any competitive bidding. However, without any evidence of corruption, it was not possible to reach the conclusion that the JVA was executed in bad faith, through misuse of power, or in an improper manner rendering the JVA illegal and without any legal effect.

22. Mr. Tanjib-ul Alam next submits that the respondent No.4 has argued before the ICSID tribunals that those tribunals do not have the power to carry out judicial review of Bangladesh Government actions under Article 102 of the Bangladesh Constitution. Thus, respondent No.4 cannot at the same time argue that the Bangladesh Supreme Court should also not exercise its powers of judicial review. Such a position is not maintainable since that would mean, in this case, no court or tribunal would have the power to review the ultra vires exercise of government authority tainted by corruption. The judicial review powers of the Bangladesh Supreme Court also cannot be exercised by the ICSID tribunals since they have no powers to freeze or confiscate the proceeds of crime that are now being enjoyed by the respondents No.4 and No.5 in Bangladesh. ICSID tribunals may only issue a pecuniary award and cannot punish corruption or declare invalid the unlawful exercise of executive powers. The proper and effective forum for the determination of issues such as unlawful exercise of executive authority tainted by bribery and corruption of Bangladesh Government officials is the Bangladesh Supreme Court applying Bangladeshi law under Article 102 of the Bangladesh Constitution. In other words, the ICSID tribunals do not provide an equally efficacious remedy to the remedy provided under Article 102. In particular, the petitioner, respondent No.1, and respondent No. 5 (which admitted to acts of corruption) are not parties before the ICSID arbitration tribunals. The ICSID arbitration cases only relate to “investment disputes” which form the subject matter of such claims and only apply to parties to the dispute, i.e. Niko Bangladesh Limited (respondent No.4), BAPEX (respondent No.3), and Petrobangla (respondent No.2). ICSID has no jurisdiction over Niko Canada (respondent No.5) which has admitted to corruption before the Canadian courts or the Bangladesh Government officials who issued the ultra vires instructions to enter the JVA and GPSA. Thus, the pending ICSID arbitration cases have no effect on the constitutional powers exercised under Article 102 of the Bangladesh Constitution to judicially review ultra vires government actions tainted by corruption. The ICSID tribunals’ decisions, as opposed to awards, are also not binding on national courts of any sovereign country exercising constitutional powers. Even ICSID awards are not final since they can be stayed and are subject to review or annulment proceedings.

23. In the affidavit in opposition dated 02.04.2017 the respondent No. 1 has produced substantial evidence of corruption gathered by Bangladesh through Mutual Legal Assistance (MLAs) requests between the Royal Canadian Mounted Police (RCMP) in Canada, the Federal Bureau of Investigation (FBI) in the United States, and the Anti-Corruption Commission (ACC) in Bangladesh. The investigation of the corruption of respondent No.4 and No.5 was initiated by the Canadian law enforcing authorities in 2005. The initial RCMP investigation began in June 2005 after an official from Canada’s Department of Foreign Affairs and International Trade (DFAIT) alerted RCMP to the possible violations of the Canadian Corruption of Foreign Public Officials Act by respondents No.4 and No.5. The RCMP started investigation and had sent a letter of request to Bangladesh for investigation and legal assistance. That investigation was joined by the United States Department of Justice, through the FBI, since one of the prime actors in the corruption scheme, Mr. Qasim Sharif, was a U.S. citizen and transferred a large part of the proceeds of crime to the United States. The ACC has charged several individuals in criminal cases under the laws of Bangladesh for offences committed in Bangladesh. The criminal trials are ongoing and so is the international co-operation of the law enforcing authorities in Bangladesh, Canada, and the United States to bring the criminals to book.

24. Mr. Mahbubey Alam, learned Attorney General, appearing on behalf of the respondent No.1 submits the evidence of corruption that has been produced before us has to be given due consideration. He submits that a conclusive case has been established from the evidence that show that respondents No.4 and No.5 obtained the JVA and GPSA through corruption. He submits that the international investigation conducted by various law enforcing agencies discovered that respondent No. 4 had entered into a Consultancy Agreement with Stratum Development Limited and agreed to pay United States Dollar four million within 15 days of execution of the JVA. Another Management Services Contract dated 01.10.2003 was signed between respondent No. 4 and Stratum fifteen days before the JVA was executed under which respondent No.4 agreed to pay a monthly fee of US$20,000 for payment of bribes to Bangladesh Government officials which is described in paragraph 6 of the Management Service Contract as “payments made to expedite or secure the performance by a foreign (i.e. Bangladeshi) public official of any act of a routine nature that is part of the foreign public official’s duties or functions, such as issuance of permits or licenses” required for the projects of the respondent No.4 and respondent No.5 in Bangladesh.

25. Mr. Mahbubey Alam submits that the head of the RCMP investigation, Corporal Duggan, concluded that Niko, through Mr. Salim Bhuiyan, had agreed to pay to Mr. Giasuddin Al Mamoon, a friend of Mr. Tarique Rahman, son of the former Prime Minister Khaleda Zia, “$1million if he helped ensure the success of the JVA”. Once the JVA was executed Mr. Qasim Sharif (President of Niko Bangladesh) arranged for part payment totaling Taka three crore (approximately US$ 500,000) into the Standard Chartered Bank account of Mr. Salim Bhuiyan who also had “political clout” with the State Minister for Energy Mr. AKM Mosharraf Hossain. The RCMP conducted interviews of Mr. Mamoon during 01.11.2008 and 02.11.2008 during which Mr. Mamoon admitted that Mr. Qasim Sharif of Niko offered him $1 million for assisting Niko’s projects in Bangladesh. Mr. Mamoon also stated that fifty percent of his power is because he is the “friend of Tarique Rahman”. Mr. Mamoon admitted that the pay order dated 07.01.2004 for Taka one crore eight lac (Tk. 10,800,000) received by him from Mr. Salim Bhuiyan was part payment for his assistance for the Niko projects. On 15.01.2008 Mr. Salim Bhuiyan provided a statement by which he admitted that he acted as middleman to facilitate cash payments from Mr. Qasim Sharif of Niko to Mr. AKM Mosharraf Hossain, former State Minister for Energy and Mr. Giasuddin Al Mamoon. After procurement of the JVA Mr. Qasim Sharif paid Mr. Salim Bhuiyan 3 crore taka into his Standard Chartered Bank in Gulshan. From that money Mr. Bhuiyan paid Mr. Mamoon Taka one crore eight lac taka by pay order and additional Taka seventy two lac by cash. He also paid Taka sixty lac to then State Minister for Energy Mr. AKM Mosharraf Hossain and retained the remaining Taka sixty lac taka for himself.

26. Mr. MahbubeyAlam further submits that the trail of bribe payments has been traced by the RCMP, FBI, and the ACC all the way from Niko Canada, to Niko Caymans Island, to Niko Barbados’s First Caribbean International Bank, to Stratum Development Limited’s Union Bancaire Privée (UBP) account in Switzerland, to Mr. Salim Bhuiyan’s Standard Chartered Bank account, and finally to Mr. Giasuddin Al Mamoon and the State Minister for Energy Mr. AKM Mosharraf Hossain.

27. Mr. Mahbubey Alam finally submits that there were also payments to the then Law Minister Mr. Moudud Ahmed which were discovered by the law enforcing authorities. Mr. Moudud Ahmed had provided a legal opinion that Chattak East was a marginal/abandoned field based on which the JVA was granted to the respondent No.4 while at the same time “Moudud Ahmed and Associates” was acting a legal advisor to respondent No. 4 and provided a similar opinion. Law enforcing officers discovered that respondent No.4 made payments of US$6,065 to Moudud Ahmed on 12.10.2000 and another payment of US$ 8,315 on 15.01.2002.

28. Mr. Rokanuddin Mahmud, appearing on behalf of respondent No. 4 submits first and foremost that there are currently two ICSID arbitration cases pending where the ICSID tribunals are looking at the corruption issue. Bangladesh is a party to the ICSID Convention and has international obligations under the ICSID Convention which should be taken into consideration before proceeding with the matter. Mr. Mahmud submits that the ICSID tribunals have issued a decision declaring their exclusive jurisdiction over the validity of the JVA and GPSA and decisions of ICSID tribunals have the same binding effect as a judgment of the Appellate Division of the Supreme Court of Bangladesh due to operation of Article 53 and Article 54 of the ICSID Convention.

29. Mr. Mahmud then submits that the Rule suffers from res judicata since the same issue had been previously decided in the writ petition No. 6911 of 2005. The Rule was made absolute in part by judgment and order dated 17.11.2009 where the Hon’ble High Court Division held that “we do find that the JVA was not obtained by flawed process by resorting to fraudulent means”. As such the same issue cannot be agitated over and over and there is no scope of revisiting the same issue of the validity of the JVA which has been settled in writ petition No. 6911 of 2005.

30. Mr. Mostafizur Rahman Khan also appearing on behalf of the respondent No. 4, firstly submits that the Rule has become infructuous. The respondent No.4 in its affidavit in opposition states that the writ petition was filed on 09.05.2016 on the essential allegation that the respondents No.1-3 (i) failed to treat the JVA and GPSA as void ab initio on account of having been procured through corruption, (ii) failed to seek adequate compensation from respondents No.4 and No.5 for losses caused by two successive blowouts in 2005 and (iii) continued to make payments to Respondent No.5 circumventing the judgment and order in writ petition No. 6911 of 2005. Mr. Khan submits that before the writ was field on 09.05.2016, respondents No.3 had filed a Memorial on Damages on 25.03.2016 before ICSID tribunals in ICSID Case Nos. ARB/10/11 and ARB/10/18 seeking, inter alia, a declaration that respondent No. 4 procured the JVA through alleged corruption, dismissal of all of the respondent No.4’s claims, and compensation for losses for the blowouts to the tune of US$118 million for the respondent No.3 and US$896 million for respondent No.1 along with between US$8.4 million to 8.6 million for survey, etc. of environment and health related loss. The respondent No.1 and No.2 also filed Money Suit No. 224 of 2008 now pending in the Court of the 1^st Joint District Judge, Dhaka against the respondent No.4, two of its officers, and the contractor engaged by respondent No.4 to control the blowouts seeking compensation of an amount of Tk. 746,50,83,973. Mr. Khan submits that the ICSID tribunals have already held hearings on the issue of corruption and, based on his experience with previous decisions issued, a decision on the corruption issue from the ICSID tribunals is expected within a couple of months.

31. Mr. Khan’s next submission is that the allegations of fraud and corruption raised in this writ petition are disputed questions of facts. He states that only the admitted facts can be relied upon. The allegations in the charge sheet of the ACC and the allegations of the RCMP in Corporal Duggan’s affidavit cannot be relied upon as evidence of the crime of corruption. They are merely investigation materials which cannot be treated as evidence of corruption.

32. Mr. Khan further submits that the retracted confessional statement of Mr. Salim Bhuiyan, or RCMP’s video interview of Mr. Giasuddin Al Mamoon cannot be relied upon as evidence of corruption against the respondents No.4 and No.5 without giving them the opportunity to cross-examine Mr. Bhuiyan and Mr. Mamoon. These statements thus also cannot be proof of evidence of corruption.

33. Mr. Khan also submits that the disposal of the writ at this time will be premature. He submits that the Rule should be made absolute after the ICSID tribunals issue a decision on the corruption issue and at the time of the enforcement of a final ICSID award before the Bangladesh courts. He further submits that the Rule should also be made absolute only after the trials in the pending criminal cases, initiated by the ACC concerning the alleged corruption in the Niko project, have been completed. If the ICSID tribunals find corruption and if the Bangladesh criminal courts find corruption then the High Court Division of the Supreme Court will be able to give a final judgment on the corruption issue. The writ petition should be held in abeyance till then, since, otherwise there may arise conflicting judgments from different courts.

34. Mr. Khan makes a submission that even if the allegations of corruption are accepted, the trail of money stops at Mr. Giasuddin Al Mamoon. He argues that Mr. Salim Bhuiyan and Mr. Mamoon were both businessmen and the payments made from Mr. Salim Bhuiyan to Mr. Mamoon could be for some other business instead of the Niko projects. He claims that there is no evidence of direct payment to a Bangladesh public official from Niko. The evidence of payments to State Minister AKM Mosharraf Hossain by Mr. Salim Bhuiyan is only in the charge sheet and in Mr. Salim Bhuiyan’s confessional statement which has subsequently been retracted.

35. Mr. Khan then submits that the Agreed Statement of Facts only related to the 2005 period but the JVA was signed on 16.10.2003. There is no agreed statement in relation to the procurement of the JVA and as such the admitted acts of corruption would not invalidate the JVA. Respondents No.4 or No.5 have never admitted to any corruption in relation to the JVA. He further notes that in the Agreed Statement it is admitted that Niko Canada (respondent No.5) made the payment to the Bangladeshi Energy Minister to exercise his influence to ensure that Niko was able to secure a gas purchase and sales agreement (GPSA) acceptable to Niko, as well as to ensure that Niko was dealt fairly in relation to claims for compensation for blowouts. Mr. Khan admits to the payment to the Energy Minister for the GPSA but argues that the invalidity of the GPSA cannot affect the validity of the JVA since they are two separate contracts. He then submits that even though it is admitted payments were made to the State Minister for Energy the Canadian Crown prosecution was unable to prove that any influence was obtained as a result of providing the benefits to the Minister. He submits that the GPSA was obtained in 2006 and not during the 2005 period for which respondent No.5 has admitted to the corruption. Thus, there is no causal link between the 2005 corruption and the GPSA in 2006.

36. Mr. Khan’s final submission is that the JVA and GPSA are commercial contracts entered into by respondent No. 3 and respondent No.2 respectively as corporate entities. These contracts are not sovereign contracts entered into by the State of Bangladesh and thus they cannot be the subject of judicial review.

37. Mr. Tanib-ul Alam, in reply, submits that the issue in the writ petition is in essence the validity of the Government’s decision to award the JVA and GPSA. The rendering of the JVA and GPSA void ab initio is ancillary to the finding that the exercise of the Government powers was procured by corruption and ultra vires. In addition, since the JVA and GPSA were approved by the Government and could not have been executed without Government approval there is no scope of treating them merely as commercial contracts. In addition, the ICSID tribunals have recognized that they have no powers over third parties or the courts of Bangladesh exercising jurisdiction even in the ICSID tribunals’ own decision. The jurisdiction of the ICSID tribunals in this case is purely based on contract and the state of Bangladesh is not a party to the pending ICSID arbitration cases. Public law issues such as corruption and judicial review of Government actions tainted by corruption are strictly speaking outside the ambit of these ICSID arbitration cases and the jurisdiction of the ICSID tribunals, especially since the contracts containing the arbitration clauses are void ab initio and thus never existed. For this reason, the ICSID tribunals should defer to the Supreme Court of Bangladesh’s findings in this writ petition. Corruption goes to the root of the contracts and renders the arbitration clauses in the contracts null and void, leaving the ICSID tribunals without any jurisdiction.

38. Mr. Tanjib-ul Alam further submits that Article 53 and Article 54 of the ICSID Convention does not support the submissions of the respondent No.4 that a decision of an ICSID tribunal has the same binding effect as a judgment of the Appellate Division of the Supreme Court of Bangladesh. If the JVA and GPSA are void ab initio then the pending ICSID arbitration cases are without any legal basis and enforcement of any eventual ICSID award would be against the public policy of Bangladesh.

39. Mr. Tanjib-ul Alam submits that the respondents No.4 and No.5 in their submissions, as well as in the Agreed Statement, have admitted that bribes were paid for obtaining the GPSA. They also admit to the charge that they paid bribes to retain their investments in Bangladesh, which must refer to the retention of the JVA. Niko admits that it arranged for trips to Canada for Mr. AKM Mosharraf Hossain who was accompanied by Mr. Salim Bhuiyan. Niko also admits that Mr. Salim Bhuiyan’s function was to arrange meetings with Bangladeshi Government officials by using his social status for which he was paid US$500,000. It is admitted that it was Mr. Salim Bhuiyan who was effective in breaking the deadlock regarding Chattak East and granting the JVA to the respondent No.4 through the use of his influence and abilities. This admission alone constitutes violations of sections 162 and 163 of the Penal Code. The submission of the respondent No.4 that the trail of money stops at Mr. Giasuddin Al Mamoon does not help the respondent No.4 since direct payment to Government officials is not required for corruption. In any event everyone in Bangladesh knows what power Mr. Giasuddin Al Mamoon wielded during the period concerned. Adverse inferences can easily be drawn from payments during that period to a politically influential person such as Mr. Mamoon. Most importantly, during none of the submissions made by the respondent No.4 has corruption been denied and no evidence has been produced to rebut the substantial evidence of corruption that has been produced.

40. Mr. Tanjib-ul Alam finally submits that just rendering the JVA and GPSA void ab initio will not suffice to compensate Bangladesh for the loss and damages caused by the blowouts in 2005. The assets of respondent No.5, which instigated, abetted, and perpetrated the corruption to obtain and retain its investments in Bangladesh, has to be seized. These assets include the shareholding interests of respondent No.5 in Tullow Bangladesh Limited concerning Block-9 PSC which should be attached and seized as proceeds of crime as well as to provide adequate compensation for the 2005 blowouts.

41. We have considered the submissions of the learned advocate for the petitioner Mr. Tanjib-ul Alam, the learned Attorney General Mr. Mahbubey Alam, and the learned Advocates for the respondent No. 4 Mr. Rokanuddin Mahmud and Mr. Mustafizur Rahman Khan. We have also perused the writ petition, applications, and affidavits in opposition filed by the parties, perused the relevant annexures annexed thereto, and considered the legal authorities and texts provided.

42. The point for adjudication in the instant writ petition is whether during the period 2003 to 2006, the respondent No.4 and No.5 had set up a corrupt scheme for obtaining benefits from the Government of Bangladesh and was able to procure the Joint Venture Agreement (JVA) and Sale Agreement for the Sale of Gas from Feni Gas Field (GPSA) through corrupt and fraudulent means.

43. The Constitution of Bangladesh entrusts the Executive branch of the Government with the sacred duty of the guardianship and management of State properties. In exercise of this function the Government officials have to exercise their executive powers with integrity, honesty, transparency, accountability, and, most importantly, in public interest. The Executive has constitutional powers to enter into or award public contracts but all such powers must be exercised in public interest only and cannot be influenced by extraneous factors such as illegal gratifications or personal benefits. If the exercise of Executive powers is tainted by extraneous factors such as personal benefits or gratifications, or procured through fraud and corruption, then such actions are ultra vires and liable to be declared to be done without lawful authority and of no legal effect, i.e. void ab initio. Any contract arising from the ultra vires exercise of Government power is liable to be declared void ab initio.

44. It is admitted that the JVA and GPSA were in fact granted to the respondent No.4 without any competitive bid in a non-transparent manner. Open competition and transparency are means of ensuring the public contracts are given to the best qualified person, at the best price, and not for the personal benefits of vested quarters. It appears that in this situation the entire processes of the granting of the JVA and GPSA to the respondent No.4 were tainted by clandestine consultancy agreements, illicit payments of exorbitant consultancy fees, and illegal gratifications being paid to Government officials and politically influential persons. In 1997 the respondent No.5 had been assessed to be the least qualified bidder and thus failed to qualify in the competitive bids conducted for granting of gas fields through Production Sharing Contracts, including Block 9 PSC. The respondentNo.5 then decided to enter the Bangladesh energy market through the back door by using so-called consultancy agreements by which it agreed to make illegal payments of gratifications to Bangladesh Government officials. It is shocking that the President of respondent No. 4, Mr. Qasim Sharif, who also acted as a conduit for payment of gratification to Government officials and politically influential persons in Bangladesh, would be quoted in the Agreed Statement by respondent No. 5 as stating that the payments of bribes to the then State Minister for Energy was to obtain and retain business interests and such a payment of bribe was “a commonplace part of doing business in Bangladesh” and a “cost of doing business”. Even if bribery is considered commonplace it does not make it legal nor can it be considered a legitimate cost of doing business.

45. Corruption is a menace that must be eradicated and cannot ever be condoned under any circumstance. The Appellate Division of the Bangladesh Supreme Court has clearly observed in Abdul Mannan Khan vs. Government of Bangladesh, Civil Appeal No. 139 of 2005 along with Civil Petition for Leave to Appeal No. 596 of 2005 paragraphs 1419:

“If there is any natural stigma on our nation, it is corruption … In fact, corruption is taking the shape of a menace; all development works are being hindered because of corruption for which good governance is also suffering a setback. Because of corruption, the bulk of the poor people of the country are deprived of their due share in the development of the country. And we all should create social awareness against corruption as well as put resistance against corruption”.

46. Government contracts procured for the benefit of private parties through bribery and corruption are clearly against the “public policy” of Bangladesh and such contracts are rendered without lawful authority, of no legal effect, and void ab initio. Corruption, being a public policy issue, is not something that can be confirmed or condoned by a court as it is forbidden by law and is a crime. Contracts granting rights over properties of the State which have been procured by corruption, and benefits derived from such corruptly procured public contracts are to be treated as “proceeds of crime” and liable to be confiscated and returned back to the State. In Biswanath Bhattacharya vs. Union of India (UOI) AIR2014SC1003, the Supreme Court of India discussed the confiscation of proceeds of crime:

“41. If a subject acquires property by means which are not legally approved, sovereign would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth.”

47. The scheme of corruption set up by the respondents No. 4 and No.5 during 2003-2006 was for the payment of hidden consultancy fees amounting to millions of dollars received in Swiss bank accounts of companies incorporated in offshore jurisdictions, for the layering of those clandestine payments though different companies in offshore places such as Barbados and Cayman Islands, and for eventual payments of illegal gratification to politically influential people for their ability to “obtain and arrange” meetings with Bangladeshi Government officials, as was admittedly done by Mr. Salim Bhuiyan, or to “assist in the execution” of the JVA by making payments to Bangladeshi Government officials to “expedite and secure” the performance of official duties of Government officers, as was admittedly done by Mr. Qasim Sharif. Under the laws of Bangladesh this set up of the respondents No.4 and No.5 cannot be treated as anything other than a scheme for bribery and corruption. This scheme has been unearthed by the international law enforcing authorities in Canada, United States, and Bangladesh acting in close co-operation for the purposes of fighting the global menace of corruption.

48. The respondent No.4 has submitted that the Rule has become infructuous since the Respondents No.2 and No.3 has already taken steps against the Respondent No.3 and brought claims before the ICSID Tribunal and in a money suit claiming compensation for the blowouts. This submission is somewhat misconceived. The Rule has three parts - (i) why the JVA should not be declared to be void ab initio; (ii) why the GPSA should not be declared to be void ab initio and (iii) why the assets of respondents No.4 and No.5, including their shareholding interest in Tullow Bangladesh Limited concerning Block-9 PSC should not be attached and seized to provide adequate compensation for the 2005 blowouts. Neither the pending ICSID arbitration cases nor the money suit offers an equally efficacious remedy to the remedy of a writ jurisdiction. Under Article 102 (2) (ii), if we are satisfied that no other equally efficacious remedy is provided by law, on the basis of an application of any person aggrieved, we may make an order declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic, has been done or taken without lawful authority and is of no legal effect. The respondent No.4 itself argued before the relevant ICSID tribunals that ICSID does not have the power to carry out judicial review of Bangladesh Government actions as exercised by us under Article 102 of the Bangladesh Constitution. Respondent No.4 cannot at the same time argue that we should also not exercise our powers of judicial review. We agree that the respondent No.4 cannot be allowed to blow hot and cold at the same time. The position of the respondent No.4 is not maintainable since that would lead to an unacceptable situation where no court or tribunal would have the power to review the ultra vires exercise of government authority tainted by corruption. The judicial review powers of the Bangladesh Supreme Court also cannot be exercised by an ICSID tribunal since ICSID tribunals have no powers to seize the proceeds of crime being enjoyed by the respondents No.4 and No.5 in Bangladesh. ICSID tribunals may only issue a pecuniary award but cannot punish corruption or declare invalid unlawful exercise of executive powers. The proper forum for the determination of issues such as unlawful exercise of executive authority tainted by bribery and corruption of Bangladesh Government officials is the Bangladesh Supreme Court applying Bangladeshi law under Article 102 of the Bangladesh Constitution. ICSID tribunals may benefit from our finding and there does not need to be any conflict since we are not infringing on the jurisdiction of the ICSID tribunals. However, it may be noted that the corruption and illegality is at the heart of the contracts containing the arbitration agreements. If enforcement of any final arbitral award is sought in Bangladesh the Bangladeshi courts, at the time of making a decision whether to enforce an award arising from such contracts, would have to balance the public policy considerations of giving effect to the illegal contracts with the public policy consideration of recognizing the finality of ICSID arbitral awards. Regarding the third part of the Rule, it is clear that respondent No.5 (Niko Canada), the parent company which actually pleaded guilty to acts of corruption in Bangladesh and which initiated the corruption scheme, is not even party to the pending cases before the ICSID tribunals. The ICSID tribunals have no powers over the assets of respondent No.5 in Bangladesh. For these reasons, we cannot agree with the respondent No.4 that the Rule is infructuous.

49. The respondent No.4 also submits that the allegations in the writ petition are disputed questions of facts. We are of the view that we do not need to rely on any disputed question of fact in this situation since, in addition to admitting to making payments of bribes to the then State Minister for Energy AKM Mosharraf Hossain for obtaining and retaining business interests in Bangladesh for its subsidiaries, the respondent No.4brazenly admits to making payments of over US$ 4 million to Mr. Qasim Sharif and US$ 500,000 to Mr. Salim Bhuiyan for their services in making “payments to Government officials” and for “arranging meetings with Government officials”. Despite the many layers used to hide the payments and the channeling of these payments through numerous offshore bank accounts, the law enforcing agencies in Bangladesh, Canada, and the United Stated must be commended for their united and effective work in tracing the trail of the corrupt payments from Niko Canada (respondent No.5), through Barbados bank of respondent No.4, then through Swiss bank account of Niko’s agent and President Mr. Qasim Sharif, to Mr. Salim Bhuiyan, and finally to the eventual recipients in Bangladesh. Having been caught red handed the respondent No.4 attempts to classify these corrupt payments as legitimate consultancy fees paid for services such as arranging meetings with Government officials and payments to expedite the performance of official functions. These payments are clearly illegal under the laws of Bangladesh. If these kinds of payments were permitted by law, then there would have been no way of checking corruption. All payments of bribes would have been packaged as payment of consultancy fees.

50. Regarding the submission of the respondent No.4 that some of the evidence cannot be relied upon because the respondent No.4 has not been allowed to cross-examine Mr. Giasuddin Al Mamoon, Mr. Salim Bhuiyan, or Corporal Duggan, who all made statements adverse to respondent No.4, we are of the view that it is not necessary for us to rely on these statements since there are other undisputed facts and evidence such as bank records, contracts for payments to Government officials, and the own admissions of respondent No.4 that establish the entire chain of corrupt payments. Furthermore, we have noted the admissions of the respondents No. 4 and No.5 regarding the payments made in 2005 to State Minister AKM Mosharraf Hossain in order to get the GPSA as well as in 2003 to Mr. Salim Bhuiyan for arranging meetings for procurement of the JVA. The undisputed facts and the undisputed documentary evidence is adequate for us to reach the inevitable conclusion that the JVA and GPSA were procured by corruption, through the set up of a corrupt scheme during the period 2003 to 2006, thus rendering the JVA and GPSA without law authority and of no legal effect, i.e. void ab initio.

51. We also cannot agree with the argument of the respondent No.4 that the disposal of the writ petition is premature and that we have to wait for the pending ICSID cases and the criminal cases to finish before we may dispose the Rule. Regarding the pending criminal cases, we are not getting into the merits of the allegations against the individuals concerned since that is the task of the criminal court where ACC’s criminal case is pending. Mr. Mahbubey Alam, the learned Attorney General has submitted that payments were made to Mr. Moudud Ahmed while he was holding the office of the Law Minister and issued a legal opinion for his former client, Niko. The alleged conflict of interest for Mr. Moudud Ahmed, in issuing a legal opinion as Law Minister in favour of a former client, and then also receiving payments into his bank account from that client, is for Mr. Ahmed to answer in the pending criminal case. Similarly, allegations of the payments received by the other accused including Mr. AKM Mosharraf Hossain, Mr. Qasim Sharif, Mr. Salim Bhuiyan, and Mr. Giasuddin Al Mamoon are for them to defend in the pending criminal case where the standard of proof is beyond reasonable doubt, the burden of proof is on the prosecution, and the witnesses and accused can all be cross-examined. We find no merit in the argument that a writ petition challenging the improper use of Executive powers has to wait for a pending criminal case against the Government officials who have also been criminally charged for criminal misconduct arising from the same facts. If that argument was valid then the ICSID tribunals would also have to wait till completion of the criminal cases till making any finding of corruption. The finding of corruption is not the exclusive domain of the criminal courts or arbitral tribunals, though only criminal courts may impose criminal sanctions.

52. We also find no merit in the argument that a writ petition has to be kept in abeyance till the arbitration cases concerning investment disputes, between respondent No.4 on one side and respondent Nos. 2 and No.3 on the other, are completed. Article 102 grants us the power and duty to declare void ab initio any public contract or project obtained by the abuse of power, bribery, and corruption. The clearly admitted facts, along with the undisputed documents showing the trail of payments, and Niko’s own admissions of making payments of “consultancy fees” to agents to influence Bangladesh Government officials establish the fact of corruption which would render the JVA and GPSA void ab initio. We are of the view that respondent No.4 and No.5 clearly engaged in corruption. We also note from the ICSID tribunals’ decision on jurisdiction that the ICSID tribunals relied on the judgment in writ petition No. 6911 of 2005 to find jurisdiction, when no evidence of corruption was produced either before the ICSID tribunals or the High Court Division Bench issuing the judgment in writ petition No. 6911 of 2005. We trust the ICSID tribunals would similarly find our findings and observations in this writ petition useful and give it due regard, particularly since the validity of the JVA and GPSA are governed by the laws of Bangladesh.

53. The respondent No.4 has taken us through the decision of the ICSID tribunals regarding their exercise of exclusive jurisdiction dated 19.07.2016. The respondent No.4 has also noted that Bangladesh is a party to the ICSID Convention and thus all organs of the state of Bangladesh, including national courts, are bound by that decision on exclusive jurisdiction dated 19.07.2016. The respondent No.4 points to Article 54 of the ICSID Convention as the basis for making their argument. Article 54(1) of the ICSID Convention states:

“(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.”

54. Mr. Khan has referred to Article 54 of the ICSID Convention to argue that the decision dated 19.07.2016, issued after the issuance of the Rule on 09.05.2016, is binding on us as an organ of the State of Bangladesh. Mr. Mahmud has also referred to Article 54 of the ICSID Convention to submit that the decision dated 19.07.2016is to be treated as a final judgment of the Appellate Division of the Supreme Court of Bangladesh. However, these arguments appear misconceived and misleading for a number of reasons. The ICSID tribunals do not provide an equally efficacious remedy as that provided under Article 102 of the Constitution of Bangladesh. In particular, the petitioner, respondent No.1 (Ministry of Energy and Mineral Resources) and respondent No. 5 (Niko Canada, which pleaded guilty to acts of corruption in Canada) are not before the ICSID tribunals. The ICSID arbitration cases only relate to “investment disputes” which forms the subject of such claims and only apply to parties to the dispute, i.e. Niko Bangladesh Limited (respondent No.4), BAPEX (respondent No.3), and Petrobangla (respondent No.2). ICSID has no jurisdiction over Niko Canada (respondent No.5) which has admitted to corruption before the Canadian courts or the Ministry of Energy (respondent No.1) which issued the ultra vires instructions to enter the JVA and GPSA. Thus, the pending ICSID arbitration cases have no effect on our constitutional right and duty to judicially review ultra vires government actions tainted by corruption. A leading commentator on ICSID, Christopher Schreuer, states in his book, The ICSID Convention: A Commentary, 2^nd Edition, Cambridge University Press:

“The binding nature of the [ICSID] award is inherent in the concept of arbitration. It is often expressed in terms of res judicata. Since arbitration is based on an agreement between the parties and this agreement includes a promise to abide by the resulting award, the award’s binding force is based on the maxim pactasuntservanda (p. 1099, para 10)

Consent to [ICSID arbitration] by a constituent subdivision or agency [such as respondent No. 2 or No.3] of a State does not amount to consent by the host state itself (see Art. 25, paras. 311-318). Since it is the constituent subdivision or agency that is party to the proceeding under these circumstances, the effect of the [ICSID] award’s binding force under Art. 53 would be upon that entity. The host state, not being a party to the proceeding, would not be subject to obligation under Art. 53 [of the ICSID Convention]. (p. 1100, para 14)

Only final awards under the [ICSID] Convention (see Art. 48, paras. 22-30) are subject to recognition and enforcement. Decisions preliminary to awards such as decisions upholding jurisdiction under Art. 4, decisions recommending provisional measures under Art. 47, and procedural orders under Art. 43 and 44 are not awards. They are not by themselves subject to recognition and enforcement (p. 1125, para 30).

…

The obligation to enforce extends only to the pecuniary obligations imposed by the award. It does not extend to any other obligation under the award such as restitution or other forms of specific performance or an injunction to desist from certain course of action (p. 1136, para 72).

55. It is clear that the decision dated 19.07.2016, issued after the issuance of the Rule on 09.05.2016, is not a final award. In fact, no award has yet been issued by the ICSID tribunals. There is no support for the proposition that the ICSID tribunals’ decisions are binding on us in our exercise of the powers of judicial review. We note that even ICSID awards may be reviewed or annulled by the ICSID system and only the pecuniary obligations imposed by a final award are treated as binding on the parties to the arbitration cases. In this case there is no award to enforce as yet. Thus, we cannot agree with the respondent No.4 that the writ petition should be kept in abeyance till the time of the enforcement of any final ICSID award.

56. In another authoritative book called Guide to ICSID Arbitration published by Kluwer Law International, and authored by Reed, Paulsson, and Blackaby it has been noted in Chapter 5, page 97:“An ICSID award binds only the parties to the dispute, not third parties. Not all ICSID decisions are awards, let alone final awards. Procedural decisions are not final awards”.

57. In Tanzania Electric Supply Company Limited v. Independent Power Tanzania Limited (ICSID Case No. ARB/98/8), one of the first ICSID tribunals to issue a “decision” stated:

“The conclusions of the Tribunal … in relation to other matters which were submitted to the Tribunal for its decision in the course of the proceedings, were published in the form of “Decisions”, to be incorporated into our Final Award by reference in due course. The Tribunal adopted this course because the ICSID Arbitration Rules contain no provisions which permit or even contemplate “Partial” or “Interim” awards, and, indeed, it seemed to the Tribunal that the Rules contemplated only one, Final Award. The course which the Tribunal adopted was not challenged or objected to by either party”.

58. For these reasons we find no merit in the arguments of the respondent No.4 that the decision dated 19.07.2016 is binding on us in the same way as a judgment of the Appellate Division of the Supreme Court.

59. Mr. Khan argues that, even if the allegations are accepted, there is no corruption since the trail of payments stop at Giasuddin Al Mamoon. We cannot agree with this submission that there has to be a direct payment to a Bangladesh Government official for there to be corruption. This submission is not supported by the laws of Bangladesh, particularly the Penal Code. We note that section 162 of the Penal Code deals with “Taking gratification, in order, by corrupt or illegal means, to influence public servant”. Under section 162 of the Penal Code private individuals, such as Mr. Salim Bhuiyan or Mr. Giasuddin Al Mamoon, taking bribes to influence a public servant by corruption or illegal means is a crime. Similarly, section 163 of the Penal Code deals with “Taking gratification, for exercise of personal influence with public servant”. Taking or giving gratification to private individuals for their personal influence with public servants is also a crime. Thus, under the laws of Bangladesh there is no requirement that only direct payments to a Government official can constitute corruption. It would be sufficient if the gratification is extracted on a promise of exercise of personal influence with an official, to bring the offence within the mischief of this section 163 of the Penal Code. Proof of actual exercise of personal influence with an official is not necessary. The US$ 500,000payment admittedly made by respondents No.4 and No.5 to Mr. Salim Bhuiyan for his so-called ability to “arrange meetings” with Government officials through his social and political connections would clearly falls under the prohibitions of sections 162 and 163 of the Penal Code. Similarly, if the payment trail reaches Mr. Giasuddin Al Mamoon, then those payments were clearly for his exercise of personal influence and political clout over Bangladeshi Government officials. Mr. Mamoon openly claims that 50% of his power came from being a close friend of Mr. Tarique Rahman, son of the former Prime Minister Khaleda Zia. Mr. Mamoon has also been convicted of money laundering along with his close friend and business associate, Mr. Tarique Rahman. These facts, though not vital or essential for disposal of the Rule, support the totality of the evidence of the corrupt scheme set up by the respondents No.4 and No.5 to acquire their investments in Bangladesh during 2003 to 2006.

60. We cannot agree with the submission of the respondent No.4 that the Agreed Statement of Facts cannot be relied upon since it only related to the 2005 period while the JVA was signed in 2003 and the GPSA in 2006. Mr. Khan submits that there is no causal link between the admitted corruption and the JVA or GPSA. However, it is clear and admitted in the Agreed Statement that Niko Canada (respondent No.5) made the payment to the Bangladeshi Energy Minister AKM Mosharraf Hossain to exercise his influence to ensure that respondent No.4 was able to secure a gas purchase and sales agreement (GPSA) acceptable to Niko, as well as to ensure that Niko was dealt fairly in relation to claims for compensation for blowouts. It is particularly important to note that the respondent No.5 pleaded guilty to the charges that “Niko Canada did, in order to obtain and retain an advantage in the course of business” provide bribe to Bangladesh officials. These words “obtain” and “retain” are significant. They imply that the bribe in 2005 was paid not only to “obtain” a future benefit such as the GPSA in 2006 but also to “retain” a past benefit such as the JVA in 2003. Corruption payments does not have to be simultaneous with the benefits procured. Bribe payments may be made for a past benefit, a future benefit, or to retain a benefit. We are unable to agree that bribery alone would not taint the procurement process of the JVA and GPSA but there must be shown that the bribery simultaneously and actually caused the benefit being bestowed to the bribe giver. If that was the law then many corrupt actors would be able to get away with corruption merely by taking the bribe at a time before or after the illegal benefit was bestowed or stating that the bribery did not actually cause the benefit being bestowed.

61. The Penal Code of Bangladesh clearly defines what constitutes bribery. Section 161 of the Penal Code deals with “Public servant taking gratification other than legal remuneration in respect of an official act”. Under section 161 of the Penal Code any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act amounts to bribery. Giving anything whose value is estimable in money is bribery. Under section 161 three things are necessary to constitute bribe – (i) the receiver of bribe must be a public servant; (ii) he must receive or solicit an illegal gratification; and (iii) it must be received as a motive or reward for doing an official act which he is empowered to do. There is no need to show, as the respondent No.4 argues that the bribes paid to State Minister AKM Mosharraf Hossain actually influenced his decisions to act in favour of Niko. In addition, the Stratum Management Services Contract is clearly in violation of section 161 since its stated aim was to make payments to Bangladesh Government officials for the procurement of Niko’s projects in Bangladesh. There is no need to additionally show, as the respondent No.4 suggests, that these payments of bribes in fact influenced the Government officials who received the bribes. If that was the case, no one would be able to show corruption since one would need to go into the mind of the recipient of the bribe to determine if that person was influenced by the bribe. Respondent No.4 and No.5 were parties to and aided and abetted the commission of these crimes in Bangladesh to illegally procure the JVA and GPSA. The respondents No.4 and No.5 have clearly also committed the offences of abatement under the Penal Code by entering into agreements with Stratum and Nationwide for the procurement of the JVA. Just the act of offering a bribe is an offence, regardless of whether the official accepts the offer.

62. We find no merit in Mr. Khan’s submission that the JVA and GPSA are commercial contracts entered into by respondent No. 3 (BAPEX) and respondent No. 2 (Petrobangla) as corporate entities and therefore these contracts are not sovereign contracts entered into by the State of Bangladesh which may be subjected of judicial review. We do not agree with these submissions since the JVA and GPSA were clearly executed through the exercise of Executive authority to grant rights over public resources to a private party, respondent No.4. The respondent Nos. 2 and No.3 clearly fall within the definition of “statutory public authority” under Article 152 of the Constitution.

63. We cannot agree with the submissions of Mr. Mahmud and Mr. Khan that the writ petition is not maintainable due to res judicata effect of the judgment in writ petition No. 6911 of 2005. Res judicata requires uniformity of causes of action and parties. The petition before the Supreme Court of Bangladesh arises from a different cause of action and there is no uniformity of parties. There was no cause of action arising from the corruption and bribery in writ petition No. 6911 of 2005. The parties in the present writ petition are also not the same parties.

64. In light of this background, from the undisputed facts and evidence presented, it is clear to us that respondents No.4 and No.5 engaged in corruption in procuring their investments and exploration rights in Bangladesh during the period 2003 to 2006. There was corruption not just under the laws of Bangladesh Penal Code but even according to World Bank’s own definition of corruption. The World Bank’s Integrity Vice Presidency defines corruption as follows:

“A corrupt practice is the offering, giving, receiving or soliciting, directly or indirectly, anything of value to influence improperly the actions of another party.

Example: A supplier agrees to pay "kickbacks" to a senior government official through an agent it hires as a sub consultant to perform "business development and marketing" services but without any deliverables. This agent is connected to a senior government official who is demanding a "commission" from every bidder as the official has influence over the bid evaluation committee and can steer the award of the contract to any bidder willing to pay. This supplier builds in the kickback amount as a percentage of the contract value, and pays for it from the funds it receives from the World Bank Group-financed project. Project financing costs are artificially inflated by these practices, and the supplier recovers costs by providing less expensive and lower quality goods.

65. The World Bank’s definition of corruption does not require a direct payment to a Government official, the same way sections 162-163 the Bangladesh Penal Code does not make it a requirement that the payment has to be made to a Government official. In this case, the respondents No.4 admits that its parent, respondent No.5,agreed to and did pay Mr. Salim Bhuiyan US$ 500,000 for his social and political connections and his ability to arrange meetings with senior government officials in Bangladesh. Mr. Bhuiyan performed these services without any tangible deliverables, other than getting Government approvals for Niko’s projects. The admitted payments made to agents and Government officials in Bangladesh were clearly built into the prices of the contracts entered into by respondent No.5 through its subsidiaries. The eventual prices to be paid by Bangladeshi consumers for the gas to be supplied by respondent No.5 were thus artificially inflated by these corrupt payments, to take into account the fees paid to Niko’s on the ground agents and Bangladeshi government officials.

66. The JVA and GPSA are also void ab initio under the Contract Act. Section 23 of the Contract Act clarifies what considerations and objects are lawful and what are not. Section 23 states:

“The consideration or object of an agreement is lawful, unless-

- it is forbidden by law; or

- is of such a nature that, if permitted, it would defeat the provisions of any law; or

- is fraudulent; or

- involves or implies injury to the person or property of another; or

- the Court regards it as immoral, or opposed to public policy.

- In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.”

67. The JVA and GPSA having been procured by corruption would be void under section 23 of the Contract Act as being opposed to “public policy”. Bribery and corruption are anathema to the concepts of rule of law and accountability and clearly against the “public policy” of Bangladesh. Public contracts procured by corruption are obviously against the “public policy” of Bangladesh. Mr. Mahmud has submitted since the JVA and GPSA has already been performed and gas has already been supplied to respondent No. 2, the only option here is to provide restitution to the respondents No.4 and No.5 for the gas supplied. We cannot agree that a party which engages in corruption and illegally procures natural resources belonging to the State, through payments of unlawful gratification to public officials or payments to politically powerful persons for their influence over government officials, can benefit from such illegal conduct or that the courts should assist them in enjoying the fruits of their crimes. It is a well-established legal principle that no one can benefit from one’s own wrong. In such a situation we see no scope of offering any restitution or benefit to the respondent No.4 or No.5 from the JVA GPSA and GPSA which are in fact proceeds of crime and are not contracts which can be protected under the laws of Bangladesh. We are of the view that the JVA and GPSA, being procured through corruption, are contrary to the laws of Bangladesh and cannot be protected by any court of law.

68. In K N Enterprise v Eastern Bank Limited 63 DLR (2011) 370 paragraph 36 it was stated:

“…there is an old maxim, "ex turpi causa non orituractio" i.e. a person cannot found an action on his own fraudulent behavior. There is another old maxim, "frausominacorrumpit" meaning …fraud vitiates everything.”

69. In Engineer Mahmudul-ul Islam and others v. Government of the People's Republic of Bangladesh and others, 2003 23 BLD 80, in a judgment upheld by the Appellate Division, the High Court Division of the Bangladesh Supreme Court stated:

“36. …A decision of the State may not be permitted to be challenged in a Court of Law but the implementation of such decision by the executive authority of the State without due diligence, without due application of mind, without reasonableness, without fairness, with arbitrariness and or in favour of a private party against public interest is liable to be challenged in the Court of Law. Any misuse of power by any executive benefiting a private party in dealing with any State property is both unreasonable and against public interest. Every activity of the government has a public element in it and it must therefore be guided by public interest and with reason. If the government awards a contract or leases out any of its property or grants any targets, the same is liable to be tested for its validity on the ground of reasonableness and public interest and if fails it would be unconstitutional and invalid. A government functionary, as mentioned above, cannot act as it pleases in dealing with State properties or largess in its absolute and unfettered discretion. When a government action is found to be unreasonable or lacking in the quality of public interest, such action is invalid.”

70. The price of corruption is high for the victims of the corruption. Corruption is a cancer for our society which has to be eradicated if we are to obtain full measure of benefit of our economic progress. The dire consequences of corruption for the people of Bangladesh have been painfully made evident in this case. Gas fields had been handed over to respondents No.4 and No.5, who had failed to qualify through a competitive bidding process, in exchange of payments of a few million dollars to a handful of greedy and corrupt individuals. The eventual blowouts and the destruction of two gas fields have caused damages of over US$ 1 billion. Unfortunately, respondents No.4 and No.5 are yet to pay for their crimes committed about 14 years ago.

71. Greed of a few should not be allowed to trump over the interest of the public. A clear message of deterrence needs to be sent out to the corrupt investors and their agents. Investors should be made aware that if they break the laws of Bangladesh by indulging in corruption then their investments would not be protected by the laws of Bangladesh. Corrupt investors not only harm the people of Bangladesh but also harm the genuine interests of honest investors who are forced out of the market by the corrupt players.

72. The clear and convincing evidence of corruption produced before us is the product of international law enforcement co-operation through the use of Mutual Legal Assistance (MLAs) arrangement between Bangladesh, Canada, and the United States under the United Nations Convention Against Corruption (“UNCAC”). Radha Ivory, a leading commentator on the issues of corruption and asset recovery, has stated in the book Corruption, Asset Recovery, and the Protection of Property in Public International Law, published by Cambridge University Press at pp. 101-102: “that state parties to the anti-corruption treaties signaled their willingness to prosecute and punish local misuses of power or office for private gain. Simultaneously, they identified the conduct that generates or involves assets that may become the subject of cooperative confiscation efforts under those conventions or related MLATs. …States are required or encouraged to ensure that persons may be deprived of illicit wealth, to assist each other with such confiscations, and to cooperate when disposing of confiscated assets”. Radha Ivory also notes at pp. 122-123 that “the anti-corruption treaties expressly require their state parties to empower their competent authorities, judicial or executive, to identify, restrain, and permanently remove illicit wealth belonging to an offender or a third party. … state parties possess considerable discretion to determine when and how they regard either fact [i.e. the offence and the connection between the thing and the offence] as established.”

73. Bangladesh is a party to the United Nations Convention against Corruption (UNCAC). UNCAC require their state parties to enable confiscation of instrumentalities, proceeds, and property of corresponding value to proceeds of convention offences. UNCAC calls for national efforts to criminalize conduct and prevent criminals from gaining profit, the most frequent motivation for the crime. An effective deterrent against corruption is the seizure, confiscation and return of the proceeds of corruption. UNCAC contains elaborate mechanism and procedure for seizure, confiscation and return of assets. The relevant provisions of Article 31 UNCAC provides:

“Article 31. Freezing, seizure and confiscation

1. Each State Party shall take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation of: (a) Proceeds of crime derived from offences established in accordance with this Convention or property the value of which corresponds to that of such proceeds; (b) Property, equipment or other instrumentalities used in or destined for use in offences established in accordance with this Convention.

2. Each State Party shall take such measures as may be necessary to enable the identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this article for the purpose of eventual confiscation.

3. Each State Party shall adopt, in accordance with its domestic law, such legislative and other measures as may be necessary to regulate the administration by the competent authorities of frozen, seized or confiscated property covered in paragraphs 1 and 2 of this article.

4. If such proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this article instead of the proceeds.

5. If such proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds.

6. Income or other benefits derived from such proceeds of crime, from property into which such proceeds of crime have been transformed or converted or from property with which such proceeds of crime have been intermingled shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds of crime.

7. For the purpose of this article and article 55 of this Convention, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or seized. A State Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.

8. States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the fundamental principles of their domestic law and with the nature of judicial and other proceedings.

9. The provisions of this article shall not be so construed as to prejudice the rights of bona fide third parties.

10. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a State Party.”

(Emphasis given)

74. As a legally binding international anti-corruption agreement, UNCAC provides a comprehensive set of measures to be implemented by state parties to prevent, combat, and prosecute corruption. On ratification, the UNCAC created legal obligations for Bangladesh and those have to be enforced through the Executive branch and/or the Judiciary of Bangladesh. Thus, Bangladesh has a duty under international law, as laid out in Article 31 of the UNCAC, to confiscate the proceeds of crime. Article 51 of the UNCAC makes the return of assets which are proceeds of crime a fundamental principle of the UNCAC. As such all proceeds of crime acquired by the respondents No.4 and No.5, through the use of a corrupt scheme, are to be returned to the state of Bangladesh. Article 53 mandates provisions for the direct recovery of corruption assets, including laws permitting private civil causes of action to recover damages owed to victim states and the recognition of a victim state’s claim as a legitimate owner of stolen assets. Article 54 requires State Parties to give effect to any confiscation order for corruption proceeds issued in another State Party, and to “consider taking such measures as may be necessary to allow confiscation…without a criminal conviction.”

75. We find support for our decision to confiscate the assets of the respondents No.4 and No.5 in the principles laid down in UNCAC.

76. In Dr. Mobashir Hassan and Others vs. Federation of Pakistan PLD 2010 Supreme Court 265 the Supreme Court of Pakistan, while discussing the corruption and confiscation, agreed with the following:

“129. …A perusal of UN Convention Against Corruption indicates that the state had responsibility to develop and implement or maintain effective, coordinated anti-corruption policies; to take measures to prevent money laundering; to take measures for freezing, seizure and confiscation of proceeds of crime, derived from offences established in accordance with the Convention, or the property the value of which corresponds to that of such proceeds, property, equipment or other instrumentalities used in or destined for use in offences established in accordance with the Convention, etc.; State parties shall consider assisting each other in investigations of and proceedings in civil and administrative matters relating to' corruption; as well as affording to one another the widest measure of mutual legal assistance in investigations, prosecutions, and judicial proceedings in relation to the offences covered by the Convention; prevention and detection of transfers of proceeds of crime.”

77. In Biswanath Bhattacharya vs. Union of India (UOI) AIR (2014) SC 1003, the Supreme Court of India discussed the confiscation of proceeds of crime:

41. If a subject acquires property by means which are not legally approved, sovereign would be perfectly justified to deprive such persons of the enjoyment of such ill-gotten wealth. There is a public interest in ensuring that persons who cannot establish that they have legitimate sources to acquire the assets held by them do not enjoy such wealth. Such a deprivation, in our opinion, would certainly be consistent with the requirement of Article 300A and 14 of the Constitution which prevent the State from arbitrarily depriving a subject of his property.

78. It may be noted that according to the Arthur Anderson Report dated 28.09.1997 Niko was the least qualified of all the companies which were competing to get exploration rights to the Block 9 PSC gas fields. Niko Canada (respondent No.5) nonetheless eventually ended up with the same exploration rights in the form of 60% ownership of Block 9 PSC after it had set up the corrupt scheme during 2003 to 2006. The respondent No.5 clearly benefitted from this corrupt scheme. Otherwise, there is no explanation as to how respondent No.5, which was found to be the least qualified of seven bidders for the PSC Block 9 in 1997, eventually ended up with obtaining 60% of the exploration rights to the same Block 9. The preponderance of evidence of corruption leads us to the conclusion that but for the corrupt scheme in place the respondent No.5 could not have obtained its exploration rights in Bangladesh. We are of the view that respondent No.5 should be deprived of its properties in Bangladesh which they have obtained through bribery and corruption. Respondent No.5 has clearly already benefitted from the crimes committed in the form of exploration and production rights under the JVA, GPSA, and the Block 9 PSC. The value of the benefit obtained by respondent No.5 include all direct and indirect payments made to the respondent No.5 in relation to the JVA, GPSA, and the Block 9 PSC. Respondent No.5 unlawfully benefitted by obtaining property of the State through the commission of offences under the Penal Code. The direct and indirect assets of the respondent No. 5 which are within the jurisdiction of Bangladesh and are, thus, subject to seizure and confiscation.

79. We are mindful that any seizure, confiscation and return of assets leading to the deprivation of property without compensation is to be implemented with great caution. Nonetheless, in this particular situation, our task has been greatly facilitated by the blatant admissions of corruption by both the respondents No.4 and No.5, the evidence of the trail of the corrupt payments uncovered by several international law enforcing agencies working together, and the contracts entered into by Niko which manifestly aim to facilitate corruption of Bangladesh public officials. The consultancy contracts are clear evidence that a corrupt scheme was set up by which regular payments were being made by the respondent No.5 to Bangladesh officials and politically influential people for the business benefits of its subsidiaries in Bangladesh. These manifest and flagrant violations of the laws of Bangladesh render all the investments of the respondent No.5 in Bangladesh tainted by corruption.

80. We are of the view that there are also a number of public policy reasons for the assets of respondents No.4 and No.5 to be seized, confiscated, and returned back to the state of Bangladesh, the ultimate victim of the corruption. The aims of the confiscation are to recover the proceeds of crime, return the assets to the State, deny criminals the use of ill-gotten assets, and deter and disrupt further criminality.

81. The primary purpose of confiscation of the assets of the respondents No.4 and No.5 is to prevent them from financially benefitting from the fruits of their illicit actions. This deprivation is an important aspect of the penalty imposed on respondents No.4 and No.5 for engaging in corrupt practices in Bangladesh. The confiscation of the assets will also deter others from engaging in similar corruption in keeping with the old adage ‘crime does not pay’. It is morally wrong to let the corrupt enjoy their ill-gotten wealth. The corrupt cannot be allowed to live handsomely off the profits of their crimes while millions of law-abiding citizens work hard to earn a living. The confiscation of the assets of respondents No.4 and No.5 is thus important for the confidence of the public in the rule of law.

82. The confiscation and return of the assets to the State will result in some form of restorative justice. The people and the state would be able to obtaining at least some financial benefit or compensation from the scourge of the crime of corruption committed by the respondents No.4 and No.5. Hardship and suffering has been inflicted by the respondents No.4 and No.5 on the citizens such as the victims of the 2005 blowouts. The return of the assets to the State would also help to reimburse the State for the human and financial resources expended in fighting and pursuing the corrupt activities of respondents No.4 and No.5.

83. Confiscation of these assets prevents the assets being used to fund further bribery and corruption. Given the culture of corruption within the companies and the scheme of corruption that was set up by the respondent No.4 and No.5, and in light of the audacity with which they dismissed the payments of bribes as normal business practices, there is no guarantee that similar practices would not be attempted again. Criminals are becoming more and more sophisticated while states such as Bangladesh have to work hard to fight them within the constraints of the limited resources of a developing nation. Corrupt international companies hide behind corporate veils and depend heavily upon the barriers of sovereignty to shield themselves and the evidence of their crimes from detection. Companies such as the respondent No. 4 and No.5 which orchestrate transnational crimes and then disperse and conceal the proceeds of their illicit activities the world over cannot be allowed to continue to act with impunity while committing fraud and corruption. In this particular case, the international community of the law enforcing agencies through mutual legal assistance has managed to uncover the sophisticated corruption scheme of the respondents No.4 and No.5. It has been established that the properties of respondents No.4 and No.5 in Bangladesh were obtained as a result of their general criminal conduct through the setting up of a scheme of corruption. In such a situation, there is a duty upon us to confiscate these assets.

84. Politically influential persons and Government officials who illegally enrich themselves through the abuse of power, and unscrupulous investors who facilitate such corruption, deprive the State of its property and hinder the economic development of the country. The laws of Bangladesh envisage the creation of a fair and just society in which crime does not pay. The Constitution under Article 102 empowers us with the duty to ensure that this vision is achieved by declaring any ultra vires exercise of Government authority of no legal effect and also declaring void any resultant contract procured through illegal acts such as corruption.

85. The Agreed Statement in paragraph 2 states that the respondent No. 5 provided the bribes to Bangladesh’s State Minister of Energy “in order to further the business objectives of Niko Canada and its subsidiaries”. The preponderance of evidence of corruption leads us to conclude that the assets of the respondent No.5 and its subsidiaries in Bangladesh, obtained through the corrupt scheme in place from 2003 to 2006, are to be treated as tainted by corruption and proceeds of crime. As such all the assets of the subsidiaries of No.5 including the assets and rights under the JVA, assets and rights under the GPSA, and the assets and shareholding interests in Block-9 PSC are attached and seized. These assets of the respondent No.4 and No.5 are being seized as proceeds of crime as well as to provide compensation to the victims of the 2005 blowouts.

86. The respondent No.1 is directed accordingly to take necessary steps to return these assets of the respondent No.4 and No.5 to the State. The rights and assets of respondents No.4 and No.5, being obtained through corruption, are ill-gotten wealth and unlawfully obtained from the State of Bangladesh. Respondents are directed to ensure that none of Niko’s ill-gotten assets can be dissipated, transferred, or sent out of Bangladesh. The purpose is to strip respondent No.4 and No.5 of any benefits obtained through corruption.

87. The respondents No.1, No.2 and No.3 are being directed to expeditiously seek adequate compensation for the damages caused by the 2005 blowouts and also take necessary steps to recover any proceeds of crime that may have already been siphoned off or taken out of Bangladesh by the respondent No.4 and No.5. To this end, the respondent No.1 are directed to effectively and expeditiously pursue the long pending Money Suit and seek adequate compensation from respondents No. 4 and No.5 for the damages caused by the 2005 blowouts. The respondents No.1, No.2, and No.3are further directed to take steps to recover the value of the benefit obtained by the respondent No.4 and No.5 through the bribery and corruption, including recovery of all direct and indirect payments received by the respondents No.4 and No.5 from Bangladesh as a result of their corruption. No payments can be made to respondent No.4 and No.5 by the respondents No.1, No.2 or No. 3 till these steps are completed.

88. The respondent No.1 is further directed to seize and cancel the exploration rights of respondent No.5 or any of its subsidiaries obtained though corruption during the period 2003 to 2006, including the rights under the JVA, GPSA and the Block 9 PSC and either develop these gas fields themselves or, if not possible, reallocate them to competent companies through a fair, transparent and open bidding process.

89. In light of the above, we conclude that from 2003 till 2006 the respondents No.4 and No.5 had set up a corrupt scheme to illegally obtain gas exploration rights in Bangladesh. Based on the undisputed facts, we find that the JVA and GPSA have been procured by corruption and thus render them void ab initio. The rights and assets of the respondent No.5 in Block 9 PSC, for which respondent No.5 was found to be the least qualified of seven bidders in 1997, have also been obtained through this corrupt scheme and are thus being seized and confiscated as proceeds of crime as well as to provide compensation for the 2005 blowouts. All the rights, assets, and property of the respondent No. 4 and No.5 in Bangladesh, obtained from the State through the corrupt scheme, shall revert back to the State.

90. In view of the above observations, we are inclined to hold that the Rule deserves merit and is bound to succeed.

91. Accordingly, the Rule is made absolute. The Joint Venture Agreement for The Development and Production of Petroleum From the Marginal/Abandoned Chattak and Feni Fields (“JVA”) dated 16.10.2003 between the respondents No.3 and No.4 is declared to be without lawful authority and of no legal effect and thus void ab initio and the Gas Purchase and Sale Agreement for the sale of gas from Feni Gas Field (“GPSA”) dated 27.12.2006 between the respondents No.2, as Buyer, and a joint venture between respondents No.3 and No.4, as Seller, are also declared to be without lawful authority and of no legal effect and thus void ab initio. The assets of respondents No.4 and No.5, including their shareholding interest in Tullow Bangladesh Limited concerning Block-9 are hereby attached.

92. There is, however, no order as to costs.

Ed.

Writ Petition No. 5673 of 2016

Professor Muhammad Yunus and others Vs. Government of Bangladesh and others, 1 LNJ AD (2012) 81

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NOS. 640 AND 641 OF 2011

Judge: S. K. Sinha,

Court: High Court Division,,

Advocate: Mr. Mahbubey Alam,Dr. Kamal Hossain,Mr. Mahmudul Islam,Ms. Sara Hossain,Mr. Ajmalul Hossain QC,,

Citation: 1 LNJ AD (2012) 81

Case Year: 2012

Appellant: Professor Muhammad Yunus and others

Respondent: Government of Bangladesh and others

Subject: Principles of Natural Justice,

Delivery Date: 2011-05-05

APPELLATE DIVISION
(CIVIL)

A.B.M. Khairul Haque, CJ.
Md. Muzammel Hossain. J
Surendra Kumar Sinha, J.
M. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.

Judgment
3rd, 4th and 5th May, 2011

Professor Muhammad Yunus

....Petitioner
(In C.P. No. 640 of 2011)

Rahima Begum and others

....Petitioners
(In C.P. No. 641 of 2011).

Bangladesh represented by the Secretary, Bank and Financial Institutions Division, Ministry of Finance, and others

....Respondents
(In both the cases)

Constitution of Bangladesh, 1972
Article 102
Grameen Bank Ordinance (XLVI of 1983)
Sections 5(2),6(3),7(2),9(1)(a),10(1),14(1)(4) and 15
গ্রামীন চাকরী বিধিমালা, ১৯৯৩
বিধি ২ (৩), ২ নি, ২(এক), ৭(৪), ৪৯, ৫০ এবং ৫১
It is undisputed that Professor Muhammad Yunus undertook "Rural Economics Programme" at village Jobra being sponsored by the Department of Economics, University of Chittagong in 1976, while he was a professor of the said University. There is no gainsaying the fact that this Grameen Bank could not have been established unless professor Muhammad Yunus came forward with the ideas which he dreamt of providing 'micro credit' facilities to the rural poor while he was a professor of the Chittagong University. He is the precursor for the establishment of the Bank and its founder Managing Director. Professor Muhammad Yunus was appointed as Managing Director initially as per terms and conditions of the Implementation Division's memo dated 11.09.1980 of the Ministry of Finance and Planning Division, Government of Bangladesh. He was reappointed on 25.08.1990, in the said post by the Board of Grameen Bank. The Managing Director will not be elected but be appointed by the Board with prior approval of the Government under section 14(1) of the Grameen Bank Ordinance.

The petitioner has come in Court for judicial review of the orders/decisions of the Bangladesh Bank intimating the Chairman of the Board of Directors of the Bank that as Professor Yunus has been continuing as Managing Director even after surpassing the retirement age of 60 years violating the service Regulations, his continuation as per decision of the Board for indefinite period without approval of the Bangladesh Bank is not legal and that he has not been legally working as Managing Director of the Bank. A judicial review differs from an appeal. The Court conducting a review is concerned to determine the lawfulness, but not the merits of the decision under review. Though the Court could quash the impugned decision, it could not substitute its own decision for that of the concerned Authority, the original decision maker. There is no dispute that the terms of appointment of Professor Yunus cover the provisions of Regulation of 1993. The petitionner is not in service of a private Bank, rather, he is in the service of a statutory Bank established under an Ordinance being controlled and regulated by the Government and therefore, the Board has no authority to fix his tenure of service for an indefinite period without approval of the Bangladesh Bank. The submission that the Prof. Muhammad Yunus was removed without affording any opportunity of being heard is contrary to the materials on record, specially when, in the eye of law, he was not ‘removed’ rather, he ceased to hold his office of Managing Director of Grameen Bank by operation of law, on his attaining the age of his superannuation for which it cannot be said that he was dealt with unfairly. Though Appellate Division do not approve of all the findings and observations of the High Court Division but the Appellate Division fully agree with its ultimate decision that there are no merits in the writ petitions. ... (16 to 18, 20, 27, 29, 50 and 56)

General Medical Council V. Spackman (1943) AC 644-645, Kanda V. Government of Malaya (1962) AC Privy Council, 322,337, Bibi Quamru-nnessa V. Bandar Building Co. Ltd. (unreported), Civil Appeal No.190 of 2003, Exen Industries V. CCIE, AIR 1971 SC 1025, Century Spinning V. Ulhasnagar Municipal Council AIR 1971 SC 1021 and Veerappa V. B.P. Dalal AIR 1975 SC .778, Council of Civil Service Unions V. Minister for the Civil Service (1984) 3 All ER 935, 949, Mati Ram Deka V. NEF Railways, AIR 1964 S.C. 600 and Chief Justice of A.P. V. LVA Dixitulu, AIR 1979 S.C. 193, Russell V. Duke of Norfolk (1949 1 All E R 109), Uma Nath Pandey V. State of U.P., AIR 2009 SC 2375, Rajendra Singh V. State of M.P. (1996) 5 SCC 460, M.C. Mehta V. Union of India (1999) 6 SCC 237, Lloyd V. Mc Mohan (1987) 1 All ER 1118, Rex V. Local Government Board (1914) 1KB 160, Kanda V. Government of Federation of Malaya, 1962(AC) 322, Century Spinning and Manufacturing Company Case AIR 1971 SC (1021), Veerapa Rachappa Saboji, (AIR 1975 SC 773), ref.

Dr. Kamal Hossain, Senior Advocate, with
Mr. Mahmudul Islam, and
Mr. Rokan Uddin Mahmud, Senior Advocate.

…For the Petitioner: (In C.P. No .640 of 2011)

Ms. Sara Hossain, Advocate, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.

…For the Petitioners: (In C.P. No. 641 of 2011)

Mr. Mahbubey Alam, Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

…For Respondent No.1: (In both the cases)

Mr. Tawfique Nawaj, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record.

....For Respondent No. 2: (In both the cases)

Mr. Ajmalul Hossain, QC, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record.

…For Respondent No. 3: (In both the cases)

Not Represented.

…For Respondent Nos.4-11: (In both the cases)

Civil Petition For Leave To Appeal Nos. 640 and 641 of 2011

JUDGMENT

S.K. Sinha, J:

Though these petitions arise out of two separate judgments, the writ petitions out of which these petitions arise have been instituted challenging the self-same orders over the same subject matter and the questions involve in these petitions being identical, these petitions are disposed of analogously.

2.     Before entering into the merit of the matter we would like to dispose of the application filed by Prof. Muhammad Yunus (petitioner) in Civil Petition No. 640 of 2011 for recalling the unsigned order dated 5th April, 2011. The leave petitions upon hearing the parties at length were dismissed in open Court on 5th April, 2011. Soon thereafter, the petitioner filed an application for rehearing of the matters after recalling the unsigned orders on the ground that all the learned counsel for the petitioner could not complete their submissions and therefore, for ends of justice the learned counsel may be afforded opportunity to make further submissions. The Supreme Court of Bangladesh (Appellate Division) Rules, 1988 does not provide any provision for rehearing of a matter which has been dismissed upon hearing the parties on merit other than hearing of a review petition under Order XXVI Part IV. What is more, the prayer for rehearing is not in conformity with Order XXVI Rule XI of Rules of 1988. As such, this petition is misconceived one. However, on consideration of the fact that three senior most learned counsel expressed their desire to make further submissions, we treat this case as an exceptional one and recall the unsigned orders in exercise of inherent powers of this Division.

3.     Short facts relevant for the disposal of these petitions are succinctly narrated thus:
Grameen Bank Ordinance, 1983 (Ordinance No.XLVI/83), was promulgated on 4th September, 1983 with a view to establishing a Grameen Bank for providing credit facilities and other services to landless persons in rural areas and other matters connected there with. Section 14 authorizes the Government to appoint a Managing Director of the Bank. Accordingly Prof. Muhammad Yunus was appointed by Notification dated 13th September, 1983 as its Managing Director on the terms and conditions regulated by the Implementation Division's O.M. No. MF./ID/ V/N(A)-16/78/1199 dated 11th September, 1980.

4.     The Ordinance was amended on 31st July, 1990, and by this amendment the Board of Directors (the Board) has been given the power to appoint the Managing Director "with prior approval of the Bangladesh Bank". In pursuance thereof as per proposal of the Bank by letter under memo dated 14th August, 1990 Prof. Muhammad Yunus was reappointed on certain terms and conditions, and one of which was to frame Regulations. Accordingly the Bank promulgated "গ্রামীন ব্যাংক চাকুরী বিধিমালা" which was published in the Official Gazette on 1st March, 1993.

5.     Bangladesh Bank Inspection Division-2 inspected the affairs of the Grameen Bank and in its report submitted on 31st December, 1999 it was pointed out in paragraph 20.4 that Prof. Muhammad Yunus and Mr. Md. Khaled Shams had been performing as Managing Director and Deputy Managing Director respectively who had attained the age of superannuation as they had exceeded the age of 60(sixty) years as per Regulations and that they had been performing their responsibilities as per decision of the Board for indefinite period. This probably prompted the Bank to promulgate another Regulations regulating the terms and conditions for the appointment of Managing Director, which was published in the Official Gazette on 19th November, 2001. Under such circumstances, the Bangladesh Bank by its letter under memo dated 27th February, 2011 annexure-M to Writ Petition No.1890 of 2011, wrote to the respondent No.3 intimating that despite exceeding the retirement age of 60 years, Prof. Muhammad Yunus had been continuing as Managing Director of the Bank as per decision of the Board without approval of the Bangladesh Bank in accord-ance with section 14(1) of the Ordinance, that his continuation in such office was not legal and that he was not legally holding the office of Managing Director. On 2nd March, 2011 the Bangladesh Bank intimated the Chairman of the Grameen Bank that the continuation of Prof. Muhammad Yunus as the Managing Director was violation of section 14(1) of the Ordinance.

6.     Prof. Muhammad Yunus challenged these two orders in Writ Petition No. 1980 of 2011 in the High Court Division claiming that he was appointed as Managing Director as per resolution of the Board in accordance with section 14(1) of the Ordinance, that the Grameen Bank Ordinance having not conferred any power upon the Bangladesh Bank to dictate or determine the terms and conditions under which the Managing Director would serve Grameen Bank, the impugned orders are unlawful, that the Grameen Bank Service Regulations, 1983 have no manner of applic-ation to Prof. Muhammad Yunus, that the Bangladesh Bank has not been invested with any authority to pass any order relieving the Managing Director of the Grameen Bank from service and that the removal was in violation of the principle of natural justice. 9(nine) Direct-ors of Grameen Bank, the petitioners in Civil Petition No.641 of 2011, moved another petition being Writ Petition No.1891 of 2011 in 7the High Court Division challenging the aforesaid two letters raising self-same grounds.

7.     The High Court Division upon hearing the parties by two separate judgments dismi-ssed the writ petitions summarily. While dismissing the petition of Prof. Muhammad Yunus, the High Court Division noticed section 14(4) of the Ordinance and the Regul-ations of 1993, and came to the conclusion that he was performing as an officer of the Bank and therefore, his Service would be regulated by the Regulations of 1993, that after expiry of 60 years he was not legally entitled to continue as Managing Director of the Bank, that the resolution of the Board dated 28th July, 1999 allowing him to continue as Managing Director until the Board decides otherwise without prior approval of the Bangladesh Bank provided in section 14(1) of the Ordinance is illegal, that as Prof. Muhammad Yunus had been holding the office beyond the age of superannuation, the principle of audi alteram partem would not be applicable and that the other petitioners had no locus-standi to maintain the writ petition challenging the impugned orders.

8.     We have perused the writ petitions along with annexures, the impugned judgments, the Ordinance and the Service Regulations. We have heard the learned counsel at length for days together. Dr. Kamal Hossain, learned counsel appearing for Prof. Muhammad Yunus argued:

a) the petitioner had effectively been denied access to justice by the summary rejection of the Writ Petition and no affidavit-in-opposition was filed controverting averments made in the writ petition;
b) this Division in exercising appellate jurisdiction should have examined the judgment, and the petitioner should have been given opportunity to point out the errors in the judgment of the High Court Division;
c) a summary rejection by the High Court Division of the writ petition denied the petitioner an opportunity of having an 9 effective hearing at that level and also deprived the petitioner of having an effective hearing at the appellate level since in the judgment of the High Court Division all relevant materials had not been considered;
d) the grounds taken in the writ petition challenging the legality of the impugned orders are based on issues relating to interpretation of law and where the construction of law is to be considered, a proper adjudication as required by all constitutions can not be done in a vacuum or without consideration of the factual context;
e) the summary rejection of the writ petition in the circumstances is contrary to stablished norms of consti-tutional jurisprudence; and
f) the mode of exercise of judicial power by the High Court Division is manifestly erroneous and amounts to a denial of access to justice to the petitioner.

9. In support of his contention, the learned counsel has cited the cases of General Medical Council V. Spackman (1943) AC 644-645, Kanda V. Government of Malaya (1962) AC Privy Council, 322,337, Bibi Quamrunnessa V. Bandar Building Co. Ltd. (unreported), Civil Appeal No.190 of 2003, Exen Industries V. CCIE, AIR 1971 SC 1025, Century Spinning V. Ulhasnagar Municipal Council AIR 1971 SC 1021 and Veerappa V. B.P. Dalal AIR 1975 SC .778.

10. Mr. Mahmudul Islam while endorsing the submissions of Dr. Hossain contended:

a) even if the petitioner had no legal right to continue as Managing Director of the Bank, the principle of natural justice had to be followed before removing him from such office;
b) this being an essential principle when a quasi-judicial body embarks on deter-mining disputes between the parties, it should not be denied to a person even if he had no legal right;
c) there are inconsistent findings and observations in the judgment of the High Court Division and for correcting gross error committed by it, leave should be granted;
d) in the Regulations of 1993 the expression 'ব্যাবসহাপনা পরিচালক' and 'কর্মী' having been separately defined in clause 2.0 (O) and (P) respectively, there is no scope to apply the Regulations for deciding the terms and conditions of the office of the Managing Director, inasmuch as, Prof. Muhammad Yunus is not an employee but the Managing Director, who has been appointing the workers and officers of the Bank as per Regulations; and
e) the Bangladesh Bank having not raised any objection in the petitioner’s performing as Managing Director since 1999, such 12 inaction indicates that there is tacit consent by implication to continue such office.

11. Mr. Rokanuddin Mahmud took us to the resolutions of the Board of Directors dated 28^th July, 1999 and 31st December, 1999, the para wise reply of Grameen Bank in pursuance of Bangladesh Bank’s letter under memo dated 12th February, 2001, annexure-J, particularly paragraph 50.0 and the representation of the Grameen Bank in pursuance of the report of the Bangladesh Bank, annexure-M to the writ petition, and paragraph 3.0 including annexures-C and D and submitted;

a) the last sentence of annexure-C is not applicable to the petitioner, inasmuch as, the petitioner’s terms of service will be regulated as per Regulations of 2001;
b) since Prof. Muhammad Yunus has been holding the office of Managing Director for more than 10 years even after exceeding 60 years of age, his removal from office without proper notice is violative of the principle of natural justice, particularly when a stigma has been given to him in the impugned orders; and
c) the petitioner having been appointed by the Board in accordance with section 14(1) of the Ordinance and approval having been sought by letter dated 14th August, 1990 and Bangla-desh Bank having accorded approval by its letter dated 14th August, 1990, the impugned orders are without jurisdiction.

12. Ms. Sara Hossain, learned counsel appearing for the petitioners in Civil Petition No.641 of 2011 took us to the various provisions of the Ordinance and submitted:

a) the petitioners who constitute the majority of the Board of Directors being borrowers and share holders of Grameen Bank have their right to challenge the impugned orders, inasmuch as, they improved their own lives and those of their family and children as a result of their involvement with Grameen Bank and thus, they are certainly aggrieved persons within the meaning of Article 102 of the Constitution;
b) the High Court Division acted illegally in rejecting their petition in-limine, inasmuch as, they filed the writ petition in their personal capacity and even though they have no personal interest in the post of Managing Director, they have the right to prevent the interference in the internal affairs of the Bank;
c) the petitioners as Directors of the Bank filed the writ petition to protect their statutory right under the Grameen Bank Ordinance, it being not a public institution, the majority shares held by private citizens have the right to prevent usurpation of their statutory right with regard to the management and control of the Grameen Bank and to safe-guard their organization;
d) the petitioners have been denied their right of hearing and thus the High Court Division committed fundamental error in dismissing their writ petition summarily, and
e) Grameen Bank being a specialied Bank, Sui generis in the manner of its establishment and functioning, its operation is different from other Banks-the Board of the Bank, not the Government is the competent decision-making body.

13. Mr. Mahbubey Alam, learned Attorney General, on the other hand, supported the judgments of the High Court Division. According to the learned Attorney General,

(a) Grameen Bank being a statutory Bank, the petitioner is a public servant within the meaning of Public Servants (Retirement Act) 1974, therefore, the Act of 1974 will be applicable to the case of the petitioner;
(b) since the petitioner has already attained the age of 60 years, he has been holding the office of Managing Director illegally and therefore, no show cause notice is required to be served upon him; and
(c) Rules of 2001 will not be applicable to the petitioner, which will be applicable for those who will be newly appointed as Managing Director.

14. Mr. Tawfiq Nawaz while endorsing the submissions of the learned Attorney General added:

(a)    the petitioner having attained the age of 60 years before promulgation of Regulations of 2001, does not deserve a show cause notice before taking action against him, and the Regulations of 2001 will not be applicable to him;
(b)    section 14(1) of the Ordinance clearly provides for approval of the Bangladesh Bank for appointment of a Managing Director and the petitioner having not challenged section 14, there is no scope to declare the impugned orders illegal since no prior approval of the Bangladesh has been taken;
(c)    the impugned orders are in fact not actions taken by the Bangladesh Bank; rather by these orders an intimation has been given to the Bank that Prof. Muhammad Yunus has been holding the office of Managing Director even after attaining the age of superannuation;
(d)    the Grameen Bank being a statutory Bank, it comes within the definition of “statutory public authority” within the meaning of Article 152 of the Constitution and the petitioner having admitted in his affidavit that his profession is service, he is a public servant and therefore, he can not continue as Managing Director of the Bank even after crossing the age of 70 years;
(e)    when a public servant attains the age of superannuation, the authority is not   required to issue any show cause notice for his removal other than to intimate him the correct position of his service and the same has been done in case of the petitioner; and
(f)    even if it is assumed that no action has been taken against Prof. Muhammad Yunus even after expiry the age of 60 years that does not mean that the provisions of law which are applicable to the Bank and its employees have no force of law.

15. Upon hearing the parties and on consideration of the materials on record the following points have emerged for our consideration:

a) What is the status of Grameen Bank?
b) What is the status of its Managing Director?
c) What is the tenure of the Managing Director as per existing law?
d) What are the terms and conditions regulating the office of the Managing Director?
e) Whether the Board of Directors of the Bank can allow the Managing Director to continue for indefinite period without approval of the Bangladesh Bank, and
f) Whether the principle of audi alteram partem is applicable while removing an officer of a statutory organization who has been holding such office beyond the age of superannuation.

16.   There is no dispute that Grameen Bank has been established by a statute with 60% paid-up share capital subscribed, managed or controlled by the Government and 25% by borrowers. The above ratio of share capital has been reduced to 25% and 75% respectively by an amendment by the Grameen Bank (Amend-ment) Ordinance, 1986. Be that as it may, this reduction of holding share capital will not make any difference regarding its status and the Government's power in the affairs of this statutory Bank. Section 5(2) of the Ordinance shows that the Board has no power to open regional or other offices without approval of the Bangladesh Bank. Even in case of increase of its   authorized capital, prior approval of the Government is necessary under section 6(3). It is also provided in section 7(2) that the Government may increase the paid up capital of the Bank from time to time in its sole discretion. Section 10(1) provides that the Chairman of the Board will be appointed by the Government, and three persons shall be appointed as Directors of the Bank by the Government under section 9(1)(a). The Managing Director will not be elected but be appointed by the Board with prior approval of the Government under section 14(1). Even the resignation of the Managing Director will not be effective until such resignation is accepted by the Government. These provisions undoubtly spel out that it is a statutory Bank and though the Board of Directors have been authorized to manage its affairs including the power to appoint the Managing Director but the Government and/or Bangladesh Bank is its ultimate controlling authority.

17.   However, there is no dispute that Professor Muhammad Yunus undertook "Rural Economics Programme" at village Jobra being sponsored by the Department of Economics, University of Chittagong in 1976, when he was a professor of the said University. This project was adopted by the Bangladesh Bank which is evident from the 'Explanation' added at the bottom of the Ordinance. But at the same time, there is no gainsaying the fact that this Grameen Bank could not have been established unless professor Muhammad Yunus came forward with the ideas which he dreamt of providing 'micro credit' facilities to the rural poor while he was a professor of the University and approached the Government to set up Grameen Bank by an Ordinance. In view of the above admitted facts, we find no substance in the submission of the learned counsel that Professor Muhammad Yunus is the founder of the Bank and that Grameen Bank is a Private Bank. It may be said that he is the precursor for the establishment of the Bank and its founder Managing Director.

18.   Admittedly Professor Muhammad Yunus was appointed as Managing Director initially in accordance with the terms and conditions of the Implementation Division's memo dated 11th September, 1980 of the Ministry of Finance and Planning Division, Government of Bangladesh. He was reappointed on 25th August, 1990 on the following terms and conditions:

a) his service conditions will be regulated as per Regulations to be framed in accordance with section 14(4) of the Ordinance;
b) the Regulations will be effective after publishing them in the Official Gazette;
c) Grameen Bank has been advised to take effective steps in this regard; and
d) if the Regulations are inconsistent with the existing ones prior approval of the Bangladesh Bank will be necessary.

19.   The petitioner did not file the Implementation Divisions memo dated 11th September, 1980, though in his reappointment letter there was clear stipulation that his terms and conditions of service would be regulated as per 'existing terms' until the Regulations are framed in exercise of powers under section 36, i.e. the Implementation Division's memo dated 11th September, 1980. In course of hearing we drew the attention of Dr. Hossain repeatedly about this letter for appraising us the initial terms and the status of the Managing Director. Dr. Hossain avoided to meet the query saying that Mr. Rokanuddin Mahmud would meet all those queries on facts. When Mr. Rokanuddin Mahmud argued on facts, he was asked to produce this memorandum or at least to intimate us the terms and conditions on which he was appointed as Managing Director. Mr. Mahmud’s response was that he would reply to our query later on but to our utter surprise, Mr. Mahmud concluded his submissions without meeting our query.

20.   The petitioner has come in Court for judicial review of the orders/decisions of the Bangladesh Bank intimating the Chairman of the Board of Directors of the Bank that as Prof. Yunus has been continuing as Managing Director even after surpassing the retirement age of 60 years violating the service Regulations, his continuation as per decision of the Board for indefinite period without approval of the Bangladesh Bank is not legal and that he has not been legally working as Managing Director of the Bank.

21.   Judicial review is different from an appeal. The Court hearing an appeal will normally have the right to decide the whole case again and, if it wishes, to substitute its own decision for that of the Court below. This is precisely where a judicial review differs from an appeal. The Court conducting a review is concerned to determine the lawfulness, but not the merits of the decision under review. The natural corollary to this is that though the Court could quash the impugned decision, it could not substitute its own decision for that of the concerned Authority, the original decision maker.

22.   The governing principles of judicial review adopted by Lord Diplock in Council of Civil Service Unions V. Minister for the Civil Service (1984) 3 All ER 935 at 949 commands considerable respect.

"Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second irrationality' and the third 'procedural impropriety".

23. Lord Diplock, explained the meaning of the expression 'illegality' in determining the lawfulness of the decision as under:

"By illegality as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justi-ciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable."

24.   This test is two fold, as the decision maker (a) 'must understand' the relevant law orrectly, and (b) 'must give effect to it'. The decision- maker i.e. the Bangladesh Bank must comply with both these conditions. Failure under either head will presumably be enough to entitle the Court to quash the decision. It is also pointed out by Lord Diplock that it is for the Court to decide whether the decision-maker has indeed complied with these conditions. Now the question is essentially whether the authority entrusted with the decision-making power has the right to decide the case 'wrongly' or whether any error of law automatically takes the decision outside the authority's jurisdiction. This takes us to consider the relevant provisions of law.

25.   Section 14(1) of the Ordinance states that the Managing Director of the Bank shall be appointed by the Board with prior approval of the Bangladesh Bank. Sub-section (4) provides that the Managing Director shall be the whole-time officer and Chief Executive of the Bank and shall serve under the Bank on such terms and conditions as may be prescribed by Regulations. Section 15 also provides that the Managing Director shall perform functions as may be prescribed by the Regulations. The letter of reappointment dated 25th August, 1990, annexure-C, was issued in accordance with   27 sections 14(4) and 15. It has been specifically mentioned that till such Regulations are framed, the 'existing terms' will hold the field. Existing terms means the terms fixed in his initial appointment letter on 13th September, 1983. It is also seen that the Board made Regulations under the heading "গ্রামীন চাকুরী বিধিমালা" which had been published in the Gazette on 1st March, 1993.

26.   Though it has been termed as Service Regulations, it is seen that apart from terms and conditions of service of the workers, staff and officers, this Regulations also provide the powers, the performance of functions and discharge of duties by the employees, staff and officers of the Bank. The inclusion of these provisions sufficiently indicate that the Regulations have been made for 'efficient conduct of the affairs of the Bank' as well. It may be said that it is a complete Code promulgated in accordance with the Ordinance for running the affairs of the Bank and that being the position, it can safely be concluded that this Regulations are applicable to all the employees including the officers of the Bank.

27.   What's more, this Regulations have been promulgated within less than three years of the direction given by the Bangladesh Bank in annexure-C. Besides, in paragraph 2.0 of the re-appointment letter of the petitioner, annexure-D, it was pointed out that he would be treated as a regular 'officer' of the Bank, and in paragraph 3.0 it was clearly mentioned that he would draw monthly 'বেতন' (salary), and would also be provided with pension, gratuity along with other benefits as per prevailing rules. Pension benefits are given to the employees of the Government and other statutory bodies including a bank. Clause 2(P) defines 'কর্মী' (worker/employee) means all permanent and temporary officers and employees. Clause 2(X) defines 'বেতন' (salary) means monthly salary received by an employee sanctioned against his post or other equal financial benefits sanctioned. In paragraph 3.0, his monthly salary was fixed which is in accordance with clause 2(P). Clause 49.0 relates to gratuity and clause 51.0 relates to pension etc, which the petitioner is entitled to as per paragraph 9.0 of his appointment letter. Clause 50.0 states that the retirement age of an employee of the Bank is 60 years. There is, therefore, no dispute that the terms of appointment of Professor Yunus cover the provisions of these Regulations.

28.   It is argued that in the Regulations the expressions 'Managing Director' and 'Employee' having been separately defined in paragraphs 2(O) and 2(P) respectively, and as the Managing Director being the employer of the employees and officers, he should not be treated in the category of an employee. This submission is devoid of substance because, as mentioned above, Professor Yunus had not been elected Managing Director but appointed Managing Director with the status of a regular officer of the Bank and he had acquiesced to his such status as an officer of the Bank. Further, his power to appoint officers is a part of the functions of his job provided in section 15 read with clause 7.4 of the Regulations which will not make any difference in his status. This power of appointment was also given to other officers of the Bank before   30coming into force of the Regulations and powers of those officers had been retained in the proviso to clause 7.4 of the Regulations. This being the position if we accept the submission of the learned counsel, then the Regulations will not be applicable to them as well. Similar job descriptions and functions have also been allocated to branch managers, area managers, programme officers etc. in appendix-3 to the Regulations.

29.   There is no dispute that Professor Muhammad Yunus was reappointed by the Board with prior approval of the Bangladesh Bank on 25th August, 1990. The question then turns to be decided as to the tenure of such appointment. On this point there are inconsistent submissions from the Bar. It is firstly submitted, there is no fixed tenure and on the next breath, it is contended that the Board is the authority to decide the tenure, and at its 52nd meeting it has been decided that Professor Yunus would continue to perform as Managing Director until contrary is decided. Alternatively, it is argued that the terms and conditions including the tenure will be regulated as per Regulations of 2001 published in the Gazette on 19th November, 2001, annexure-H. We find fallacy in the submissions in view of the fact that the petitioner is not in service of a private Bank; rather, he is in the service of a statutory Bank, established under an Ordinance, being controlled and regulated by the Government and therefore, the Board has no authority to fix his tenure of service for an indefinite period without approval of the Bangladesh Bank.

30.   This resolution, according to the learned counsel, is in accordance with law and the Bangladesh Bank illegally interfered with the internal affairs of the Bank. The tenure including the terms and conditions will be governed by section 14 read with the Regulations made in exercise of powers under section 36. Assuming that the Regulations of 1993 will not be applicable to the petitioner, as argued, then the Implementation Division's memo dated 11th September, 1980 will hold the field since it was clearly pointed out in his reappointment letter that until the Regulations are framed the ‘existing terms’ would govern his service, and if the Regulations as may be framed conflicts with the existing ones, prior approval of the Bangladesh Bank would be necessary. The Regulations of 2001 were framed long after the expiry of the retirement age of 60 years.

31.   We are of the view that since the petitioner seeks judicial review of the impugned orders of the Bangladesh Bank removing him from the post of Managing Director, he ought to have filed the Implementation Division’s memorandum which is relevant for deciding his status and the terms and conditions of his service.

32.   The said memorandum was issued by the Ministry of Finance fixing the pay scales of the Governor/Deputy Governor of Bangladesh Bank and Managing Directors of the Nationalised Banks and Financial Institutions and providing other related facilities and benefits, the relevant portion is reproduced below:

"GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
MINISTRY OF FINANCE
IMPLEMENTATION DIVISION
No. MF(ID)V/N(A)-16/78/1199 Dated 11.9.80 33
OFFICE MEMORANDUM
Sub: Pay scales of the Governor/Dy. Governor of Bangladesh Bank and Managing Directors of the Nationalised Banks & Financial Instts.
The undersigned is directed to say that the Government have been pleased to decide that the posts of Governor/Deputy Governor of Bangladesh Bank and the Managing Directors of Nationalised Banks and Financial Institutions named below will be placed in the New scales of pay and receive other allowances/facilities as shown below ..............."

33.   The petitioner had been given the status of the Managing Director of a Nationalised Bank and therefore, the terms and conditions applicable to the Managing Director of a Nationalised Bank would apply to him. These terms and conditions have not been changed by the Bank by the Regulations or by the Board with the approval of the Bangladesh Bank. Therefore, we can safely infer that the petitioner has been performing as Managing Director for a tenure equivalent to those Managing Directors of Nationalised Banks. The petitioner did not claim that he was not appointed on contract basis as per paragraph 7 of this memorandum, in which case, his service would have been "governed by their own terms of contract". He is a public servant plain and simple, and the age limit for retirement of a public servant will be applicable to him. In his appointment letter it was clearly pointed out that he would be treated as নিয়মিত কর্মকর্তা (regular officer) and that there would be a continuity of service. A public servant's retirement age has been fixed by statute and after expiry of his age of superannuation, he cannot continue in such office as of right, unless, the tenure of his service is extended by the authority. There is nothing on record to show that his service has been extended by the concerned authority.

34.   There is no explanation as to why the Grameen Bank did not frame separate Regulations determining the terms and conditions of the Managing Director at the time of framing the Regulations of 1993 if they are not applicable to him despite direction given by the Bangladesh Bank. Mr. Tawfiq Nawaz submitted that the Regulations of 2001 would not be applicable to the petitioner as he had already attained the age of 60 years on 28th June, 2000, long before coming into force of this Regulations on 19th November, 2001 and secondly, these Regulations have been made providing the terms and conditions for those Managing Directors who will be appointed later on. In this connection, the learned counsel has drawn our attention to the preamble. In the preamble it has been stated Ordinance No.XLVI, 1983 এর ১৪ ধারার বিধান মোতাবেক ব্যবসহাপনা পরিচালক নিয়োগের শর্তাবলী সংক্রামত্ম নিম্ন বর্ণিত নিম্নলিখিত রেগুলেশন প্রণীত হলো।” (emphasis added)

35.   The preamble of a statute is a prefactory statement at the beginning, following the title and preceding the enacting clause; it explains the policy and purpose, the reasons and motives for, and the objects sought to be accomplished by the enactment of the statute. Preamble has been regarded as of great importance as guides to construction. In the preamble of the Regulations it has been stated in clear terms that those have been framed for regulating the terms of appointment of the Managing Director. While Professor   36 Yunus was performing as Managing Director these Regulations were framed. In view of the above, we find merit in the contention of Mr. Tawfiq Nawaz.

36.   Even if it is assumed that these Regulat-ions are applicable, the petitioner will not derive any benefit from them. The petitioner has not been reappointed after promulgation of the same with prior approval of the Bangladesh Bank. Secondly, clause 4.00 provides that the tenure of the office will not be more than five years, and the Board can reappoint the Managing Director for a fixed term on such new terms as will be decided at the time of reappointment. The tenure of five years expired in November, 2006 from the date of coming into force of these Regulations even if it is taken that the same are applicable to the petitioner. But the petitioner was neither appointed nor reappointed fixing his terms after coming into force of the said Regulations. Learned counsel for the petitioner fails to explain how these Regulations will regulate the terms and conditions of Professor Yunus? In view of the above, there is no doubt that Bangladesh Bank removed the petitioner in exercise of its power in accordance with law.

37.   It is submitted that the Bangladesh Bank issued the impugned orders without affording Prof. Muhammad Yunus an opportunity of being heard and thus there is procedural impropriety in the impugned orders. This principle of natural justice has been laid down by Courts as being minimum protection of rights of the individual against the arbitrary decision taken by the quasi-judicial and administrative authority when making an order affecting ones rights. There is no dispute that whenever justice fails to achieve solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality. There is also no denial of the fact that the adherence to principle of natural justice is recognized by all civilized States which is of supreme importance when quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving penal consequence is in issue. It is now well recognized that no one should be condemned unheard and a notice has to be served before any action is taken.

38.   First it has to be decided as to whether he was entitled to a notice when he ceased to hold office on attaining the age of retirement, on the operation of law. He was not terminated from service or retired compulsorily or removed from service for which he was entitled to a show cause notice. He was informed that as he had surpassed the age of uperannuation, he had no right to hold the office. This principle would apply only when the action was attended with penal consequences, which constituted punishment. In the facts of the given case it would not attract this principle. It is contended that an express stigma was attached to the order of removal and thus, the orders were violative to the principle of natural justice. As observed, as the petitioner was neither removed nor discharged or retired compulsorily it could have been inferred that the orders constituted no penal consequences so as to attract a notice. There is no aspersion or reflection on the conduct, efficiency or the like, made in the orders, which would adversely affect his social status and therefore, we find no substance in the contention that a stigma was attached to the impugned orders.

39.   Provisions of Article 135(2) of the Constitution can be invoked by a person who holds any civil post in the service of the Republic but the petitioner being an officer of a statutory Bank did not come in the said category. Article 135(2) provides that no person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause why that action should not be taken. Similar provision is provided in Article 311(2) of the Constitution of India. It has been held in different cases that compulsory retirement of an officer who has completed 25 years of service before superannuation would not attract Article 311(2) even though it is, in fact, ordered on the ground of misconduct, inefficiency or the like because in compulsory retirement, the Government servant does not lose any retirement benefits. Reference in this connection is the cases of Mati Ram Deka V. NEF Railways, AIR 1964 S.C. 600 and Chief Justice of A.P. V. LVA Dixitulu, AIR 1979 S.C. 193.

40.   We noticed that before the audit objection was raised by the Bangladesh Bank on 31st December, 1999, Prof. Muhammad Yunus had sufficient information that he would not eligible to continue as Managing Director as he would attain the age of superannuation in June 2000, as would be evident from annexure-F, the 52th meeting of the Board held on 28th July, 1999, otherwise there was no reason behind to discuss and adopt a resolution to the effect that while appointing Prof. Muhammad Yunus the Board did not fix the tenure and he would be entitled to continue until otherwise decided. Besides, in his letter dated 15th March, 2010 addressed to the Minister for Finance, which was reproduced in his supplementary affidavit dated 6th March, 2011, he expressed his intention to retire by handing over charge to the second generation. This letter indicated that he was convinced that age is the barrier to continue as Managing Director and accordingly he wanted to become Chairman of the Bank, and desired an honourable transition of power. Therefore, he had sufficient knowledge that he had ceased to hold the office of Managing Director otherwise there was no reason for him to express his desire to handover the power.

41.   Even if it is assumed that the impugned orders of removal visited professor Yunus with the loss of office, the maxim audi alteram partem can not have universal application. Rules of natural justice necessarily vary with the nature of the right and the attendant circumstances. Tucker L.J. said in Russell V. Duke of Norfolk (1949 1 All E R 109) “the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.” It has been argued in Uma Nath Pandey V. State of U.P., AIR 2009 SC 2375 by Dr. Arijit Pasayat, J.

"Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

42. After making above observation, the learned Judge travelled the globe to explore the principle and concluded:

"We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their 'discretion' refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed".

43. In Rajendra Singh V. State of M.P. (1996) 5 SCC 460 it is stated:

"even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it can not be waived".

44. There are cases in which it is argued that if this principle is followed it will be rather useless formality as no fruitful purpose will be served in such cases this principle can not be adhered to. In M.C. Mehta V. Union of India (1999) 6 SCC 237 it was observed:

"Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed."

45.   Lord Woolf in Lloyd V. Mc Mohan (1987) 1 All ER 1118 has also not disfavoured refusal of discretion in certain cases of breach of natural justice. One argument has been made in Mc Carthy V. Grant, 1959 NZLE   451014 "it is sufficient for the applicant to show that there is 'real-likelihood-not certainly -of prejudice". Wade, Administrative Law, 5th Edn. Page 526-530 it has been stated that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. We found that Prof. Muhammad Yunus was not condemned unheard. He had sufficient notice that he was holding the office of Managing Director of Grameen Bank without sanction of law as he had attained the age of superannuation in June, 2000, 10 years prior to the making of the impugned orders. Therefore, we find no merit in the contention of the learned counsel.

46.   In General Medical Council case (1943 AC 644), the question involved was "if any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanour, or in Scotland of any crime or offence, or shall after due inquiry be judged by the General Council to have been guilty of infamous conduct in any professional respect, the General Council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register". Section 29 of the Medical Act, 1858 empowers the medical council to convict for felony or misdemeanour with a criminal conviction. In case of infamous conduct which is not connected with a criminal conviction, the decision of the council, if adverse to the practitioner, must be arrived at "after due inquiry". The question is whether the council in that case can be regarded having reached its adverse decision "after due inquiry" when it has refused to hear evidence tendered by the practitioner with a view to showing that he has not been guilty of the infamous conduct alleged. In the facts of the given case Lord Wright following the case of Rex V. Local Government Board (1914) 1KB 160 argued on consideration of an observation made in that case "contrary to natural justice" as an expression "sadly lacking in precision". "So it may be, and perhaps, it is not desirable to attempt to force it into any procrustean bed, but the statements which I have quoted may, at least, be taken to emphasize the essential requirements that the tribunal should be impartial and that the medical   practitioner who is impugned should be given a full and fair opportunity of being heard".

In Kanda V. Government of Federation of Malaya, 1962(AC) 322, two men were charged in the Supreme Court at Penag with uttering forged lottery tickets. The prosecution failed? Police officers as witnesses gave false evidence in trial. The two accused men including inspector Kanda were acquitted. The commissioner of police ordered an inquiry to be held. It reported that false evidence had been fabricated for use at the trial. Article 135(2) of the Constitution of Federation of Malaya provides "No member of such a service as aforesaid (the police service is one of these) shall be dismissed or reduce in rank without being given a reasonable opportunity of being heard". Inspector Kanda was dismissed on 7th July, 1958. In the context of the matter, it was observed "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other".
In Century Spinning and Manufacturing Company Case AIR 1971 SC (1021), the company set up a factory within the limits of Bombay Industrial area. On the representation of the company the Government of Bombay published a notification including the company's area in which the industrial area was set up proclaiming that the industrial area to be excluded from municipal jurisdiction and on the representation of the municipality, the Government withdrew the said notification on condition that the municipality would exempt existing factories from payment of octroi for 7 years. The municipality thereafter ignoring the advise of the government informed that it would consider on merits any representation of a tax prayer for exemption from payment of octroi. Thereafter the Municipality sought to levy octroi duty and to recover octroi duty from the company. In the context of the matter, the Supreme Court observed "the High Court may, in exercise of its discretion, decline to excise its extra-ordinary jurisdiction under Article 226 of the Constitution. But the discretion is judicial: if the petitioner makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extra-ordinary jurisdiction, the Court may decline to entertain the petition. But a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits. Apparently the petition filed by the Company did not raise any complicated questions of fact for determination, and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against   the action of the Municipality, which was prima-facie unjust, tried".

47.   In Veerapa Rachappa Saboji, (AIR 1975 SC 773), the Supreme Court observed "we do not think the High Court Division was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits   and referring the appellant to a suit. We must in the circumstances, set aside the order of summary reject-ion passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents".

48.   We do not dispute the statement of law argued in the cases referred to by Dr. Hossain. These cases are quite distinguishable and not applicable in this case. No case can be an authority on facts. We find no substance in the submission that the High Court Division acted illegally in dismissing the petitions, inasmuch as, the petitions do not involve issues relating to interpretation and construction of law.

49.   Now the question is after expressing the desire to retire about one year before making of the impugned orders, the petitioner can challenge the impugned orders? When he has been convinced that he has no legal sanction of law to hold on the office, he has no right   to challenge the order of removal. In course of hearing learned counsel also indicated that there is still scope for honourable transition of power if the petitioner is appointed as chairman of the Bank by the Government considering his social status and contribution towards the Bank, and this can be possible if this Division makes observation in this regard. It is the discretionary power of the Govern-ment to appoint the Chairman under the Ordinance and it is not within our jurisdiction. Since the impugned orders were made on 27th February, 2011 after about one year of writing of the above letter, the issuance of prior notice, in our view, will be an unnecessary exercise. Therefore, the submission that the Prof. Muhammad Yunus was removed without affording any opportunity of being heard is contrary to the materials on record, specially when, in the eye of law, he was not ‘removed’ rather, he ceased to hold his office of Managing Director of Grameen Bank by operation of law, on his attaining the age of his superannuation. On these facts, it cannot be said that he was dealt with unfairly.

50.   Next point is whether the High Court Division acted illegally in dismissing the writ petitions summarily and thereby denied the petitioner access to justice. The main thrust of Dr. Hossain is that the High Court Division ought to have admitted the petitions and should have decided the matters on the basis of the affidavit-in-opposition. This lead us to decide whether the admission of a writ petition, irrespective of its merit, is a sine-qua-non. The power of the High Court Division to issue writ under Article 102 can be exercised for the enforcement of fundamental rights, as well as, of non-fundamental legal rights where the action taken is procedurally ultra vires or where the authority being under an obligation to act judicially, or even quasi judicially, passes an order which is in violation of the principle of natural justice, for safeguarding such fundamental rights of the aggrieved person. When all the facts are on record and the law is clear on the subject, the exercise of jurisdiction in such a case is uncalled for.

51.   Similarly, in cases where the question of law or constitutionality urged can be determined only upon investigation into disputed questions of fact, for which there are no materials on the record, or where the facts stated in the petition do not ex facie support the petitioner’s case, but not otherwise or where the petitioner seeks to secure unjust gain, or where the quasi-judicial authority acted without or in excess of jurisdiction or in contravention of the principle of natural justice, the exercise of power may be refused. We have observed above, there was no infraction of any right of the petitioner as he was holding and continuing in the office of Managing Director of a statutory bank without any legal sanction. Or in the alternative, he has no legal authority to hold the office of Managing Director as he has no legal basis to continue in such office after attaining the age of superannuation. In the absence of violation of any mandatory provision of law, the Court will not come in aid to the petitioner as he is a disqualified person to continue in the office of Managing Director.

52.   Prof. Muhammad Yunus is a nobel laureate. He is a respectable person not only in Bangladesh but all over the world. He was initially appointed as Managing   Director of Grameen Bank by the Government and subsequently the Board reappointed him with prior approval of the Bangladesh Bank. Under such circumstances, the observations of the High Court Division that "a 'squatter' or a 'trespasser' or a 'usurper' cannot maintain a writ petition under Article 102" are totally uncalled for in this case and the petitioner was illegally compared with litigants like "squatter, trespasser, usurper". Prof. Muhammad Yunus is neither a 'squatter' nor a 'trespasser' or a 'usurper' of Grameen Bank in any sense. Rather he is the person on whose ideas and innovative projects for extending collateral free small loans to the rural people, the Bank has been established and it has achieved the prestigious nobel prize as a recognition of its phenomenal success. Therefore, the unnecessary observations as quoted above are totally derogatory which are hereby expunged. It is hoped that the High Court Division should be cautious in future in making any unhealthy observation against any litigant who has   come to Court for justice and not for seeking derogatory remarks instead.

53.   It is to be remembered that Judges administer justice. In order to do justice, the first and foremost expectation from them is to be just. This expectation itself is the fountain source of all that can be put in the realm of canons of judicial ethics. A Judge can not have any predisposed state of mind. His judgment would not be actuated by concerns of private interests or considerations. He has to be decisive. His every action and every word–spoken or written, must show and reflect correctly that he holds the office as a public trust and he is determined to strive continuously to enhance and maintain the people’s confidence in the judicial system. Learning, personality, manners and stature in the judicial functioning matter. A Judge is as much respected as he respects the law, justice, equity and good conscience, and above all serves and seen to serve the cause of justice. It is desirable that the High Court Division should not use such unsophisticated words against a respectable person like Prof. Muhammad Yunus. The language of the Court should be dignified and the findings should confine to the issues involved in the matter.

54.   Like a Judge, a lawyer is a functionary of the judicial system with powers and duties as important as those of Judges. Lawyers are an important limb in the administration of justice. Their duty to the cause of justice is even superior. Their first obligation is to assist the Courts to the best of their ability so that justice can be done, so much so that only the legal profession is deservingly called a learned profession. It has high standards to keep abreast. That is why the profession commands respect. A lawyer’s advanced education, training, knowledge and skill in the field of law, apart from his duty to the client, are the attributes to his tradition in the practice of law. Instances are not rare to find where lawyers in their over-zealousness to protect the interest of their clients have chosen to go over-board to the extent of submitting misleading facts and law. In the words of Justice Sir Maurice Gwyer, “Every member of the Bar is   a trustee for the honour and prestige of the profession as a whole.” He said, every member of the Bar must bear in mind that it is expected of him that “never by any act or word of his will he show himself unworthy of the great tradition which he has inherited.”

55.   We would like to observe that the writ petition filed by 9(nine) Directors is not maintainable on two grounds firstly, they are not 'aggrieved persons' within the meaning of Article 102 of the Constitution and secondly, since the aggrieved person Prof. Muhammad Yunus having challenged the impugned orders himself, they have no locus-standi to challenge the same orders by a separate petition for, if such process is allowed multiplicity of proceedings would crop up and there would be likelihood of conflicting decisions over the same subject matter, in which event, instead of doing justice, the ends of justice would be defeated. The High Court Division declared the Regulations of 2001 being inconsistent with section 14 of the Ordinance invalid. True, a Subordinate law cannot supersede the parent law but since no rule was issued in these matters, the High Court Division is not justified in declaring Regulations of 2001 invalid.

56.   Though we do not approve of all the findings and observations of the High Court Division, we fully agree with its ultimate decision that there are no merits in the writ petitions. Thus, these petitions merit no consideration which are dismissed with the above observations.

        The parties would bear their respective costs.

Ed.

Project Director, Tejgaon, Dhaka and another Vs. Ratan Kumar Das and others

Case No: Civil Petition for Leave to Appeal No. 2070 of 2008

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Md. Bashir Uddin Zindigir,,

Citation: 14 MLR (AD) (2009)157

Case Year: 2009

Appellant: Project Director, Tejgaon, Dhaka and another

Respondent: Ratan Kumar Das and others

Subject: Administrative Law,

Delivery Date: 2009-4-27

Project Director, Tejgaon, Dhaka and another

Vs.

Ratan Kumar Das and others, 2009,

14 MLR (AD) (2009)157

Supreme Court
Appellate Court
(Civil)

Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J

Project Director (at present In-Charge of Director), Tejgaon, Dhaka and another………………… Petitioners

Vs.

Ratan Kumar Das and others.........................Respondents

Judgment
April 27, 2009.

Administrative Tribunals Act, 1980—
Section 4 and 6

Administrative tribunals though have all the trappings of a court but they are not court proper and as such have not been vested with all the powers of court under the Code of Civil Procedure. Since no power to grant interim relief is conferred either under section 4 or 6, the Administrative Tribunal or the Administrative Appellate Tribunal can not grant interim relief.

Case Referred To-
Kamml Hasan Vs. Bangladesh and others, 49 DLR (AD) (1997) 44.

Lawyers Involved:
Mrs. Sufia Khatun, Advocate-on-record- For the Petitioners.
Md. Bashir Uddin Zindigir, Advocate (Appearing with the leave of the Court) instructed by Muhammad Nawab Ali, Advocate-on-Record- For the Respondent No. 1.
Not represented- For the Respondent Nos. 2-4.

Civil Petition for Leave to Appeal No. 2070 of 2008.
(From the judgment and order dated 27tn August, 2008 passed by the Administrative   Appellate Tribunal in Miscellaneous Appeal No.2 of 2008)

Judgment:
               MM Ruhul Amin CJ.- This petition for leave to appeal is directed against the judgment and order dated 27^th August, 2008 passed by the Administrative Appellate Tribunal in Miscellaneous Appeal No. 2 of 2008 rejecting the prayer for stay of further proceedings of the Execution Case No. 2 of 2007 now pending before the Administrative Tribunal No.1, Dhaka till disposal of the Miscellaneous Appeal No. 2 of 2008.

2. The Administrative Appellate Tribunal on consideration of the materials on record rejected the prayer holding that there is no provision either in the enactment or Rule of the Administrative Tribunal Act, 1980 for stay of any proceedings of the inferior tribunal.

3. We have heard Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioners and Mr. Md. Bashir Uddin Zindigir, the learned Advocate (appearing with the leave of the Court) for the respondent No.1 and perused the impugned judgment and order of the Administrative Appellate Tribunal and the materials on record.

4. This Division in a number of cases held that the Administrative Tribunal is not a Court proper although it has all the trappings of the Court and as such cannot exercise all the judicial powers of the Court provided under the Code of Civil Procedure. In the case of Kamrul Hasan Vs. Bangladesh and others reported in 49 DLR (AD)(1997) 44 this Division held that sections 4 and 6 of the Administrative Tribunals Act do not provide jurisdiction to the Administrative Tribunal or the Appellate Tribunal to grant any interim relief in respect of a is pending before it for final adjudication.

5. In the facts and circumstances of the case, we are of the view that the Administrative Appellate Tribunal on proper consideration of the materials on record arrived at a correct decision.

6. The petition is dismissed.
Ed.

Proshika Manobik Unnayan Kendor Vs. Commissioner of Taxes & ors., (Borhanuddin, J.)

Case No: Writ Petition No. 933 of 2007

Judge: Borhanuddin, J And Sardar Md. Rashed Jahangir, J

Court: High Court Division,

Advocate: Mr. Sardar Jinnat Ali, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Proshika Manobik Unnayan Kendro

Respondent: The Commissioner of Taxes and others

Subject: Words and Phrases

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Borhanuddin, J

And

Sardar Md. Rashed Jahangir, J

Judgment on

28.10.2018

}

Proshika Manobik Unnayan Kendro

. . .Petitioner

-Versus-

The Commissioner of Taxes and others

. . .Respondents

Words and Phrases

Audi alterem partem

The application of the audi alterem partem is not applicable to all eventualities or to cure all ills. Its application is excluded in the interest of administrative efficiency and expedition. Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. . . . (12)

Constitution of Bangladesh, 1972

Article 102

Existence of fundamental right to be the formation of the exercise of jurisdiction by the High Court Division under this Article. This right has to be a legal right. Legal right means legally enforceable rights and not purely personal right or personal contract having no statutory force. The above words must be read in the context of and in anti-thesis of the words “for the enforcement of any of the rights conferred by part III”. . . . (17)

Income Tax Ordinance, (XXXVI of 1984)

Section 158 (2)

The provision to Sub-Section (2) of section 158 of the Ordinance vests discretion with the Commissioner of Taxes to reduce statutory requirement of payment under Sub-Section (2) of section 158 of the Ordinance, if the grounds stated in the application filed by the assessee applicant under the proviso appears reasonable to him/her. . . .(18)

Constitution of Bangladesh, 1972

Article 102

The rule that decisions of an authority exercising judicial or quasi judicial authority should be reasoned is not a universally established rule, although in certain situations it is rigidly enforced. The duty to give reasons may be either a statutory requirement or non statutory. Where the duty is laid down by the act or the rules made thereunder, obviously, the authority is bound to give reasoned decision in all cases to which that provision is applicable. But in the absence of a statutory duty, the court have been emphatic to advise judicial or quasi judicial authorities to assign reasons in such a form as to justify the orders being called what are described as speaking orders. . . . (19)

Income Tax Ordinance, (XXXVI of 1984)

Section 158

Upon hearing the authorized representative of the assessee-petitioner and considering the points raised by the assessee-petitioner the DCT and the AJCT determined tax liability of the assessee as such requirement of further hearing is always with the authority who decides the matter. There is no statutory requirement for hearing the applicant or recording reason under the proviso of section 158(2) of the ordinance. . . . (20)

Interpretation of Statute

We cannot interprete language of the statute framed by our legislators in between the lines. Legislators framed the law at their wisdom. Though there is no requirement to give an opportunity of hearing to the assessee-applicant or recording reason, but still the Commissioner of Taxes should be aware that his /her order must reflect reasonableness from where it can be transpired that the Commissioner of Taxes applied his/her judicial mind in passing the order. But for inadequacy or absence of reasonableness, the order cannot be set aside. It is discretion of the Commissioner of Taxes. . . . (22)

J.T (India) exports and another Vs. Union of India and another 2003 ITR (Vol 262) 269; Commissioner of Income Tax, East Pakistan, central Secretariat, Dacca, Vs. Fazlur Rahman, 16 DLR506; Union of India & another Vs. M/S. Jesus Sales Corporation, 1996 AIR1509; Vijay Prokash D. Meheta and another Vs. Collector of Customs, 1989 ITR (Vol-175) 540 and Shyam Electric Works Vs. Commissioner of Income Tax, (2006) 284 ITR 413 ref.

Mr. Sardar Jinnat Ali, Advocate

. . . For the Petitioner

Ms. Mahfuza Begum, A. A. G

. . . For the Respondent No.1

JUDGMENT

Borhanuddin, J: The rule Nisi has been issued calling upon the respondents to show cause as to why the impugned order bearing Nothi No. Misc.8/law/ka au-5/2006-07 dated 17.08.2006 (Annexure-A) passed by the respondent No.1 purportedly under section 158(2) of the Income Tax Ordinance, 1984, rejecting petitioner’s application for exemption from payment of 15% of the demanded income tax prior to preferring an appeal before the Income Tax Appellate Tribunal for the Assessment Year 2004-2005 should not be declared to have been issued without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. Facts relevant for disposal of the rule are that the petitioner is a Non-Government Voluntary Organization registered under the Societies Registration Act. The petitioner submitted Income Tax return for the assessment year 2004-2005 to the Deputy Commissioner of Taxes, (hereinafter called ‘the DCT’) respondent no.3 herein, with audited accounts showing a loss of taka 61,12,27,742/-.But the respondent no.3 by his order dated 29.04.2015 determined taxable income of the petitioner at taka 21,10,62,372/-ignoring audited accounts submitted by the petitioner. Against the order, assessee-petitioner preferred appeal to the Appellate Joint Commissioner of Taxes (hereinafter called ‘the AJCT’), respondent no. 4 herein. Upon hearing the parties and perusing relevant papers/documents, the AJCT affirmed order of the DCT vide its order dated 03.05.2006. At the relevant period, pre-deposit of 15% tax determined by the AJCT or Commissioner of Taxes (appeal), as the case may be, was a condition precedent under section 158(2) of the Income Tax ordinance (hereinafter stated ‘the ordinance’) for preferring appeal to the Appellate Tribunal. A Proviso attached to sub-section (2) of section 158 runs as follows:

“Provided that on an application made in this behalf by the assessee, the commissioner of taxes, may reduce, the requirement of such payment, if the grounds of such application appears reasonable to him.”

3. Accordingly, the assessee-petitioner filed an application to the Commissioner of Taxes (hereinafter called ‘the CT’), respondent no.1 herein,to reduce the amount of 15% statutory requirement under section 158(2) of the ordinance and allow the petitioner to file appeal depositing taka 10,000/-only. Respondent no.1 on perusal of the application and materials on record reduced the amount at taka 50,00,000/- from taka 87,16,569/- which is 15% of the tax determined by the AJCT vide order dated 14.08.2006.

4. Being aggrieved, the assessee-petitioner moved this application under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtained the present rule alongwith an order of stay.

5. Mr. Sardar Jinnat Ali, learned advocate appearing for the petitioner challenged the impugned order on two counts, firstly, arbitrary fixation of the amount for pre-deposit at taka 50,00,000/- without affording an opportunity of hearing to the petitioner. Secondly, the respondent no.1 did not record any reason how he arrived such a finding that the assessee has the ability to deposit taka 50,00,000/-. Mr. Ali submitted that the impugned order is without lawful authority and is of no legal effect and also violative of Article 27 and 31 of the Constitution inasmuch as respondent no.1 passed the order without providing an opportunity of hearing to the petitioner and without recording any reason to arrive its finding. In support of his submission, learned advocate referred to the case of J.T (India) exports and another –Vs- Union of India and another, reported in 2003 ITR (Vol 262) 269 and the case of Commissioner of Income Tax, East Pakistan, central Secretariat, Dacca, -Vs- Fazlur Rahman, reported in 16 DLR506.

6. On the other hand, Ms. Mahfuza Begum learned Assistant Attorney General appearing for the respondent no.1 submits that pre-deposit of 15% was a condition precedent at the relevant period for filling appeal to the Taxes Appellate Tribunal under section 158(2) of the ordnance and the proviso attached to the section conferring power to reduce the statutory requirement for filling appeal was a discretionary power of the CT and to exercise the discretion the CT had no legal obligation to provide personal hearing or record reasoning since the DCT and AJCT determined tax liability of the petitioner after hearing representative of the assessee-petitioner and taking into consideration the points raised by the assessee as such the rule is liable to be discharged. In support of her submissions, learned Assistant Attorney General referred to the case of Union of India & another-Vs-M/S. Jesus Sales Corporation, reported in 1996 AIR1509 and the case of Vijay Prokash D. Meheta and another –Vs- Collector of Customs, reported in 1989 ITR (Vol-175) 540 and the case of Shyam Electric Works –Vs- Commissioner of Income Tax, reported in (2006) 284 ITR 413.

7. Heard learned advocate for the petitioner and learned Assistant Attorney General for the respondent. Perused the application under Article 102 of the constitution and annexures appended thereof alongwith citations referred by learned counsels.

8. Since the dispute centered round section 158 of the ordinance, it will be profitable to quote the section as it was at the relevant period:

“158. Appeal to the Appellate Tribunal (1) An assessee may appeal to the Appellate Tribunal if he is aggrieved by an order of

a) an Appellate Joint Commissioner or the Commissioner (Appeals) as the case may be, under section 128 or 156.

2) No appeal under sub-section (1) shall lie against an order of the Appellate Joint Commissioner or the Commissioner (Appeals), as the case may be, unless the assessee has paid fifteen per cent of the amount representing the difference between the tax as determined on the basis of the order of the Appellate Joint Commissioner or the Commissioner (Appeals), as the case may be, and the tax payable under section 74.

Provided that on an application made in this behalf by the assessee, the Commissioner of Taxes, may reduce, the requirement of such payment, if the grounds of such application appears reasonable to him”.

9. On the basis of the proviso attached to section 158(2) of the Ordinance, the assessee-petitioner filed an application to the CT to reduce the amount of 15% statutory requirement from taka 87,16,659/- to taka 10,000/- only for preferring appeal to the Appellate Tribunal under Section 159 of the ordinance against order of the AJCT.

10. Relevant portion of the application filed by the assessee-petitioner are reproduced below:

ÔÔgvi‡KbUvBj wm‡÷‡g iw¶Z cÖwkKvi wnmve mg~n Ges wbix¶v cÖwZ‡e`b mg~n, wej fvDPvi I wnmv‡ei LvZvcÎ `vwLj Kiv m‡Ë¡I weÁ Dc-Ki Kwgkbvi Zvi `ßi KZ©„K cÖvwß ¯^xKvi Kiv KvMRcÎ cvb bvB ewjqv gš—e¨ Kwiqv‡Qb Ges Av‡µvnj§mL , KvíwbK I †eAvBwbfv‡e wbix¶v wi‡cvU© mg~n AMÖvh¨ Kwiqv wbix¶v wi‡cv‡U© D‡jwLZ wewea MiP mg~n‡KI AMÖvn¨ Kwiqv‡Qb Ges `vZv ms¯’vi mwnZ mswkó cÖKí Towards a Proverty- Free Society (Phase VI) program, Disaster management programme, Collaborative project mg~‡ni †gvU e¨q (128,57,44,451 + 13,76,099 + 54,57,929) = 129,25,78,479/- UvKv wnmv‡e bv wbqv ïay G cÖKí mg~n †_‡K cÖvß A_© (8,50,61,419/- + 2,70,582/- + 57,072/- UvKv) ‡gvU 8,53,89,073/- UvKv Avq wnmv‡e wbqv Ges Z_¨MZ wfwË bv _vKv ¯^‡ËI KvíwbKfv‡e Bw›U‡MÖ‡UW GwMÖKvjPvi dvg© n‡Z Avq 1,25,76,045/- UvKv, †m›U«vj AvB G Gd Gi wnmve n‡Z Avq 59,09,013/- UvKv, cÖwkKv Kw¤úDUvi wm‡÷g (wcwmGm) ‡_‡K Avq 5,12,88,332/- UvKv, †Mvjvg gvIjv dv‡Zgv I‡qj‡dqvi U«vó ‡_‡K 12,48,357/- UvKv Avq †`LvBqv ms¯’v cÖwkKvi cÖK…Z bxU ¶wZ 61,12,27,742/- UvKv Gi ¯’‡j me©‡gvU 21,10,62,372/- UvKv Avq †`LvBqv 29/12/2005 Zvwi‡L Ki wba©viY Av‡`k cÖ`vb Kwiqv‡Qb Ges AvqKi 5,26,68,093/- + my` 54,42,369/- UvKv mn †gvU 5,81,10,462/- UvKv AvqKi cÖ`v‡bi Rb¨ AvBwU-15 †cÖib Kwiqv‡Qb| DcKi Kwgkbvi KZ©K Ki eQi 2004-2005 Gi †eAvBwb Ki wba¡©iY Av‡`k ZvwiL 29-12-2005 Gi Abywjwc Ki`vZv cÖwkKv 17/01/2006 ZvwiL cvBqv‡Q| G‡RwmwUi AvqKi Avcxj Av‡`k cÎ 979/mvt-51/KtAt-5/05-06, ZvwiL 03/05/2006 Gi Abywjwc Ki`vZv cÖwkKv 06/07/2005Bs ZvwiL cvBqv‡Q| †m‡nZy, Ki eQi 2004-2005 Gi DcKi Kwgkbvi KZ©„K Ki wba©viY Av‡`k ZvwiL 29/12/2005 Ges 03/05/2005 Zvwi‡Li G‡RwmwUi AvqKi Avcxj Av‡`k cÎ 979/mvt-51/KtAt-5/05-06 Gi wei“‡× U¨vK‡mm AvcxjvZ U«vBeybv‡j Avcxj Kiv cÖ‡qvRb| wKš‘ eZ©gv‡b AvqKi Aa¨v‡`‡ki 158(2) avivq ms‡kvabx Abyhvqx 15% Ki miKvix †KvlvMv‡i Rgv Kwiqv U¨vK‡mm AvcxjvZ U«vBeybv‡j Avcxj Kivi weavb iwnqv‡Q|

ms¯’v cÖwkKvi cÖK…Z bxU ¶wZ 61,12,27,741/- UvKv Hl wecix‡Z Dc-Ki Kwgkbvi KZ©„K Dc‡iv‡jwLZ KvíwbK I †eAvBwbfv‡e 21,10,62,372/- UvKv Avq wba©vib Z_v AvqKi 5,81,10,462/- UvKv avh© Kivi cwi‡cÖw¶‡Z Ki`vZv cÖwkKv‡K ïb¨ AvqK‡ii ¯’‡j AvqKi 5,81,10,462/- UvKvi 15% mgcwigvb 87,16,569/- UvKv †KvlvMv‡i Rgv w`qv U¨vK‡mm AvcxjvZ U«vBeybv‡j Avcxj Kivi cÖ‡qvRwbqZv †`Lv w`qv‡Q| wKš‘ cÖwkKvi eZ©gvb Avw_©K Ae¯’vi cwi‡cÖw¶‡Z Ga wecyj cwigvb A_© †KvlvMv‡i cÖ`vb Kivi m¤¢e bq| Bnv e¨wZZ D³ A_© cwi‡kva Ki‡Z AvcxjKvixi hardship Gi Kvib nB‡e| cÖwkKvi eZ©gvb Avw_©K Ae¯’v LyeB Lvivc|

GgZve¯’vq, Avcbvi wbKU webxZ AviR GB †h, b¨vq wePv‡ii ¯^v‡_© Dc-Ki Kwgkbvi KZ©„K Avµkg~jK, KvíwbK I †eAvBwbfv‡e cÖwkKvi ïb¨ AvqK‡ii ¯’‡j cÖwkKvi Rb¨ avh©K…Z AvqKi 5,81,10,462/- UvKvi 15% Ki mgcwigvb 87,16,659/- UvKv Rgv gIKzd Kwiqv ïay †Uv‡Kb A_© 10,000/- UvKv miKvix †KvlvMvi evsjv‡`k e¨vs‡K Rgv `vb c~e©K U¨v‡·p AvcxjvZ U«vBeybv‡j Avcxj Kwievi AbygwZ `v‡b evwaZ Kwi‡eb|ÕÕ

11. Respondent no.1 Commissioner of Taxes disposed of the application vide its order dated 14.08.2006 in the following manner:

ÔÔAvcbvi 18-08-2006Bs Zvwi‡Li M„wnZ Av‡e`‡bi †cÖw¶‡Z AvqKi bw_, `vwLjK…Z KvMRcÎ BZ¨vw` cix¶v‡š— cÖZxqgvb nq †h, Avcbvi Ki cÖ`v‡bi mvg_© Av‡Q| AZGe, AvqKi Aa¨v‡`‡ki 158/(2) avivi kZ© Abyhvqx 2004-05 Ki e‡l©I AvcxjvZ U«vBeybv‡j gvgjv `v‡q‡ii Rb¨ 50,00,000/- (cÂvk j¶) UvKv cwi‡kva mv‡c‡¶ AvcxjvZ U«vBey¨bv‡j gvgjv `v‡q‡ii Rb¨ Avcbvi Av‡e`b gÄyi Kiv nBj|ÕÕ

12. Petitioner’s contention is that though there was no statutory requirement under the provisio of section 158 (2) but principle of natural justice demands a personal hearing before passing the order. The moot question is whether the Commissioner of Taxes was under obligation to provide an opportunity of hearing to the assessee-petitioner and passed the order assigning reasons. Learned counsel for the parties referred citations in support of their submission. It need not be pointed out that under different situations and conditions the requirement of the compliance of the principle of natural justice vary. The application of the audi alterem partem is not applicable to all eventualities or to cure all ills. Its application is excluded in the interest of administrative efficiency and expedition. Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and background of statutory provision, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case. These principles do not apply to all cases and situations. Applications of these uncodified rules are often excluded by express provision or by implication. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property.

13. The question of audi alterem pertam arose in the case of Union of India & Anr.-Vs- M/S. Jesus Sales Corporation, wherein a Full Bench of Delhi High Court observed that:

“Before rejecting the prayer made on behalf of the respondent to dispense with the whole amount of penalty an opportunity should have been given to the said respondent of being heard in terms of the proviso to Section 4-M of the Imports and Exports (Control) Act, 1947.”

14. Section 4-M of the Act provides amongst other that where the Appellate authority is of the opinion that the deposit to be made will cause undue hardship to the appellant it may at its discretion dispense with such deposit either unconditionally or subject to such conditions as it may impose. Union of India challenged the order of the Delhi High Court before the Indian Supreme Court.

15. After thorough and meticulous discussions, Indian Supreme Court held.

“When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded. This is all the more important in the context of taxation and revenue matters. When an authority has determined a tax liability or has imposed a penalty, then the requirement that before the appeal is heard such tax or penalty should be deposited cannot be held to be unreasonable as already pointed out above. In the case of Shyam Kishore-Vs-Municipal Corporation of Delhi, it has been held by this court that such requirement cannot be held to be harsh or violative of Article 14 of the Constitution so as to declare the requirement of pre-deposit itself as unconstitutional. In this background, it can be said that normal rule is that before filing the appeal or before the appeal is heard, the person concerned should deposit the amount which he has been directed to deposit as a tax or penalty. The non-deposit of such amount itself is an exception which has been incorporated in different statutes including the one with which are concerned. Second proviso to sub-section (1) of Section 4 M says in clear and unambiguous words that an appeal against an order imposing a penalty shall not be entertained unless the amount of the penalty has been deposited by the appellant. Thereafter, the third proviso vests a discretion in such Appellate authority to dispense with such deposit unconditionally or subject to such conditions as it may impose in its discretion taking into consideration the undue hardship which it is likely to cause to the appellant. As such it can be said that the statutory requirement is that before an appeal is entertained, the amount of penalty has to be deposited by the appellant; an order dispensing with such deposit shall amount to an exception to the said requirement of deposit. In this background, it is difficult to hold that if the Appellate authority has rejected the prayer of the appellant to dispense with the deposit unconditionally or has dispensed with such deposit subject to some conditions without hearing the appellant, on perusal of the petition filed on behalf of the appellant for the said purpose, the order itself is vitiated and liable to be quashed being violative of principle of natural justice and with the above observation allowed the appeal filed by the Union of India. As it is stated above that the attached provision of section 158 of the Ordinance is states that the Commissioner of Taxes on an application made by the assessee may reduce the requirement of pre-deposit appears reasonable to him.”

(Emphasis supplied by us.)

16. Article 102 of out Constitution empowers the High Court Division to issue certain orders and directions. Language of the Article 102 runs as follows:

“102 (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of the this Constitution”.

17. From the language above, it is apparent that existence of fundamental right to be the formation of the exercise of jurisdiction by the High Court Division under this Article. This right has to be a legal right. Legal right means legally enforceable rights and not purely personal right or personal contract having no statutory force. The above words must be read in the context of and in anti-thesis of the words “for the enforcement of any of the rights conferred by part III”.

18. The provisio to Sub-Section (2) of section 158 of the Ordinance vests discretion with the Commissioner of Taxes to reduce statutory requirement of payment under Sub-Section (2) of section 158 of the Ordinance, if the grounds stated in the application filed by the assessee applicant under the proviso appears reasonable to him/her. From the language of the proviso, we do not find any statutory duty of the CT to pass an order assigning reason.

19. The rule that decisions of an authority exercising judicial or quasi judicial authority should be reasoned, is not a universally established rule, although in certain situations it is rigidly enforced. The duty to give reasons may be either a statutory requirement or non statutory. Where the duty is laid down by the act or the rules made thereunder, obviously, the authority is bound to give reasoned decision in all cases to which that provision is applicable. But in the absence of a statutory duty, the court have been emphatic to advise judicial or quasi judicial authorities to assign reasons in such a form as to justify the orders being called what are described as speaking orders.

20. It may be mentioned here that, upon hearing the authorized representative of the assessee-petitioner and considering the points raised by the assessee-petitioner the DCT and the AJCT determined tax liability of the assessee as such requirement of further hearing is always with the authority who decides the matter. There is no statutory requirement for hearing the applicant or recording reason under the proviso of section 158(2) of the ordinance.

21. We have perused section 249(4) of the Indian Income Tax Act, 1961, which runs as follows:

A) No appeal under this chapter shall be admitted unless at the time of filing of the appeal,-

a) Where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or

Where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him:

“Provided that in a case of filing under clause (b) and on an application made by the appellant in this behalf, the Commissioner (Appeal) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of the provisions of that clause”.

(Emphasis supplied by us.)

22. It appears from Section 249(4) of the Indian Income Tax Act, 1961, that there was a statutory requirement to record good and sufficient reason by the Commissioner (Appeal) to exempt assessee applicant from the payment under clause (a) and (b) of the section. But in our statute there is no such requirement. We cannot interprete language of the statute framed by our legislators in between the lines. Legislators framed the law at their wisdom. Though there is no requirement to give an opportunity of hearing to the assessee-applicant or recording reason, but still the Commissioner of Taxes should be aware that his /her order must reflect reasonableness from where it can be transpire that the Commissioner of Taxes applied his/her judicial mind in passing the order. But for inadequacy or absence of reasonableness, the order cannot be set aside. It is discretion of the Commissioner of Taxes.

23. Under the facts and circumstances of the case and for the reasons stated above, we are inclined to discharge the rule with the observation made above.

24. Accordingly, the rule is discharged without any order as to cost.

End of volume.

Writ Petition No. 933 of 2007

Proshika Manobki Unnayan Kendro Vs. Commissioner of Tax 2016 (2) LNJ 337

Case No: I.T. Ref: Application No. 383 of 2004

Judge: A. F. M. Abdur Rahman,

Court: High Court Division,,

Advocate: Mr. Sarder Jinnat Ali,Ms. Kazi Zinat Hoque,Mr. Ashraful Hadi,Ms. Nurun Nahar,Mr. Shaikat Basu,,

Citation: 2016 (2) LNJ 337

Case Year: 2016

Appellant: Proshika Manobki Unnayan Kendro

Respondent: Commissioner of Tax

Subject: Income Tax,

Delivery Date: 2015-07-06

Proshika Manobki Unnayan Kendro Vs. Commissioner of Tax 2016 (2) LNJ 337

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

A. F. M. Abdur Rahman, J
And
Md. Shohrowardi, J.
Judgment on
24.06.2015 & 06.07.2015

}
}
}
}
}
}
}
}
}

Proshika Manobik Unnayan Kendra,
a charitable society registered under the Societies Registration Act 1860 of Proshika Bhaban, 1/1GA, section 2, Mirpur, Dhaka represented by its President Quazi Faruque Ahmed.
....Assessee-Applicant.
Versus
Commissioner of Taxes, Inspecting Range-2, Taxes Zone-05, Dhaka

Income Tax Ordinance (XXXVI of 1984)
Section 152O(6)
The Income Tax Reference proceeding shall be kept stayed in this court till a report from the facilitator as to the conclusion of the ADR proceeding is being filed by the facilitator pursuant to the provision of section 152O(6) of the Income Tax Ordinance 1984, so far the dispute resolution is a unsuccessful one.        . . . (23)

Income Tax Ordinance (XXXVI of 1984)
Section 152F
It appears the issues left out to be resolved in ADR, clearly involves the issue of laws. An issue of law is the subject of court or the tribunal to be resolved in accordance with the provision of law. No agreement inter vivos can be made on the issue of law and even it is done the same will be a nullity. The proceeding of ADR only allow the parties to come to an agreement in the presence of facilitator, who must be present in the proceeding of negotiation of the parties, but has nothing to do and to remain present as on looker, only to issue a certificate whether the ADR is a success or failure. In the ADR procedure the parties may only come to an agreement so far the factual aspects are concerned and the law has not allowed the parties to make an agreement, derogatory to the provision of law.                                               . . . (25)

Income Tax Ordinance (XXXVI of 1984)
Sections 152F and 160
Any question involving legal issue cannot be resolved in Alternative Dispute Resolution procedure. The entire Income Tax Reference jurisdiction requires the expression of opinion by the court on legal issue as has been provided in section 160 of the Income Tax Ordinance 1984. Therefore, the question which was un-resolved in the Alternative Dispute Resolution Procedure can well be taken into consideration by this court for expressing opinion on the same.                                                . . . (26)

Constitution of Bangladesh, 1972
Article 103(3)
Income Tax Ordinance (XXXVI of 1984)
Section 152Q
Although the procedure of appeal has been provided in section 152Q of the Income Tax Ordinance 1984, but the word “may” as used in the said provision makes it an optional provision for the Assessee-applicant to prefer the appeal before appellate authorities of this court, meaning thereby that any issue upon which the parties fail to come to an agreement, shall be the subject of Appeal before the Appellate Division of the Supreme Court of Bangladesh as of right, without resorting to the provision of Article 103(3) of the Constitution, if the party aggrieved intends to opt for the Appeal.          . . .(28)

Income Tax Ordinance (XXXVI of 1984)
Section 152Q
Failing to resolve on any point and leaving aside any point unresolve, are not the same and as such the assessee applicant is not liable to opt for preferring Appeal in the instant case against the unresolved issues. . . . (29)

Income Tax Ordinance (XXXVI of 1984)
Sixth Schedule Part A, Paragraph-1(i)
Explanation
Since admittedly the Assessee-applicant is a charitable organization having no dividend to be paid to its sponsor directors and the whole income is being applied for the charitable purpose. Therefore, the issue appears to have been wrongly considered by the IACT concern, who found that due to the deletion of the ‘Explanation’ from the provision of Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984, the charitable organization became taxable under the said provision.        . . . (34)

S. Sundaram Pillai Vs. V.R. Patabiraman, reported in AIR (1985) SCJ 82 ref.
I.T. Ref: Application No. 383 of 2004

Mr. Sarder Jinnat Ali, Adv. with
Mr. Ashraful Hadi, Adv.
...For the Assessee-applicant.
Ms. Kazi Zinat Haque DAG with
Ms. Nurun Nahar, AAG and
Mr. Shaikat Basu, AAG
...For I.T. Department.

JUDGMENT

A.F.M. Abdur Rahman,J:
The Assessee-applicant Proshika Manabik Unnayan Kendro preferred the instant Income Tax Reference Application, under the provision of section 160(1) of the Income Tax Ordinance 1984, with the formulated question, as has been reformulated in the supplementary-affidavit, dated 08.1.2015, which reads as follows;
“Whether in fact and on the circumstances, the Tribunal under Section 44(1)/Sixth Schedule, Part-A, para 1(1) of the Income Tax Ordinance 1984, was justified in holding the opinion that by virtue of amendment by way of omitting “Explanation”, the income of the applicant, a charitable institution, turned into taxable income?”
Facts of the case of the Assessee applicant:

It has been asserted in the Income Tax Reference Application that the Assessee-applicant is a charitable society and a Non-Government Organization (NGO), established in the year 1976 and registered under the Societies Registration Act 1860 and also duly registered with the NGO Affairs Bureau, under the Prime Ministers Secretariat. The Assessee-Applicant is engaged in charity activity as mentioned in the bi-laws and derives its income from various sources, including from the foreign donation of various country, namely the Canadian International Development Agency (CIDA), the Department For International Development (DFID), the European Commission (EC), NOVIV, the Swedish International Development Agency (SIDA). The assessee-applicant also derives income from the business activity of its different project. All these income are wholly applied to charitable purpose.
The Assessee-applicant being a charitable and income generating organization, is an assessee of income tax under the TIN 191-100-5800, the exempted under the provision of section 44(1) read with 6^th Schedule, Part-A, Paragraph-1(1) of the Income Tax Ordinance 1984 and accordingly the Assessee-applicant was allowed the said exemption on its income for every assessment years from its establishment up to the assessment year 1998-1999 and the DCT concern disposes the tax return, under the provision of section 83(2) of the Income Tax Ordinance 1984, as filed by the Assessee-applicant holding that the Assessee-applicant’s income is not taxable under the said provision, the income being used wholly for the charitable purpose.
But later, dispute arises when the Assessee-applicant submitted its income tax return for the assessment year 2001-2002 on 23.9.2001, showing a total loss of Tk. 49,04,52,476.00 and pursuant to the notice under section 83(1) and 79 of the Income Tax Ordinance 1984, the authorized representative of the Assessee-applicant, conducted the hearing before the Assessing Officer, IACT, who did not consider that the Assessee-applicant is entitled to the exemption of the provision of section 44(1) of the Income Tax Ordinance 1984, rather assessed the income of the Assessee-applicant at an amount of Tk. 11,43,28,606.00, turning the loss of Tk. 49,04,52,476.00 into income and made its assessment order under the provision of section 83(2) of the Income Tax Ordinance 1984, imposing tax liability upon the Assessee-applicant, treating the income of the Assessee-applicant as derived from project activities as taxable business income and also the bank interest accruing from foreign donation, as received by the Assessee-applicant, is a taxable income.
Being aggrieved with and highly dissatisfied by the said assessment order, the Assessee-applicant preferred appeal before the first appellate authority, being আয়কর আপীলপত্র নং- ৪০১/সা-৫১/কঃঅঃ-৫/২০০৩-২০০৪, with six grounds of objection. But since the same failed, the Assessee-applicant preferred further appeal before the Taxes Appellate Tribunal, being ITA No. 3162 of 2003-2004, which also having been failed against its nine grounds, the Assessee-applicant preferred the instant Income Tax Reference Application with the formulated questions as aforementioned.
During the pendency of the instant Income Tax Reference Application the Assessee-applicant obtained a permission from this court on 4.6.2014, in respect of availing ‘Alternative Dispute Resolution Procedure’, as provided under section 152I of the Income Tax Ordinance 1984 and also an order of stay of the proceeding of the instant Income Tax Reference application till disposal of the ADR proceeding. Thereafter, the Assessee-applicant, by filing a supplementary-affidavit on 8.1.2015, informed this court that pursuant to the ADR procedure, the parties agreed on the factual issues, but failed to reach an agreement on the issues involving question of law, and thereby disagreement followed on the question of law which has been mentioned in the certificate issued by the facilitator. Accordingly, the Assessee-applicant reformulated the question raised for determination in the instant Income Tax Reference Application, by way of supplementary affidavit, dated 8.01.2015, as aforementioned.

Claim of the Taxes department:

Upon service of the notice, the Taxes Department appeared through the then learned Deputy Attorney General Mr. Kazi Waliul Islam, who submitted the affidavit-in-reply, wherein it has been asserted that the IACT lawfully excluded the Assessee-applicant’s income from exemption, as provided under section 44(1) read with 6^th Schedule, Part-A, Paragraph-1(1) of the Income Tax Ordinance 1984, since the said provision was limited to inter-alia income from house property and not extended to the business income. Since the Assessee-applicant’s runs business under the name and style of its subsidiary project Proshika Fabrics, Sericulture project, demonstration project, Integrated agriculture firm, Proshika Computer system and general business and deals in disaster management fund commercially, all of these activities are commercial in nature and do not run for the purpose of religious and charitable purpose and hence exemption cannot be allowed as per Paragraph-1 and 2 of the Sixth Schedule, as claimed by the Assessee-applicant since the said exemption can only be extended to any income derives from property under trust or other legal obligation, applied wholly for religious or charitable purpose. The IACT computed lawfully the taxable income of the Assessee-applicant as per amendment of the Finance Act 1999 upon which the ‘explanation’ remaining in the paragraph No. 1(1) of the Part A of the Schedule was omitted.
It has been further asserted that the IACT’s further decision not to extend the exemption to such income shown under the head of bank interest was correct. Because, the claim of the Assessee-applicant that the tax deducted at source, under section 53F of the Income Tax Ordinance 1984 from interest of saving deposit and fixed deposit is to be the final settlement under section 82C of the Income Tax Ordinance 1984 is not correct. The assessment order was confirmed by the two appellate authorities, since the IACT’s assessment order excluding the Assessee-applicant from the exemption under section 44(1), read with Sixth Schedule, Part-A, Paragraph-1(1) of the Income Tax Ordinance 1984 was correct and lawful. The IACT made the assessment and computed taxable income and issued demand notice of Challan, imposing simple interest as per amendment made by the Finance Act 1999 and assessed the income of the Assessee-applicant under section 83(2)/44(1)/94A/10 of the Income Tax Ordinance 1984 being lawful and correct, the same was correctly confirmed by the Taxes Appellate Tribunal. Therefore, the question as has been formulated in the instant Income Tax Reference Application, not being proper questions and lawful is not required to be answered in negative and in favour of the Assessee-applicant.
By a supplementary-affidavit-in-reply the respondent asserted that on 14.7.2014 the Assessee-applicant itself resorted to the Alternative Dispute Resolution (ADR) as per the provision of section 152I of the Income Tax Ordinance 1984 and বিকল্প বিরোধ নিস্পত্তি (পদ্ধতি) বিধিমালা ২০১২, which was concluded on several points, save & accept one, involving issue of law and the facilitator has issued the certificate to that extent. Therefore, since the Assessee-applicant itself voluntarily resorted to ADR, it is devoured from raising the same before this court under the provision of section 152P of the Income Tax Ordinance 1984 on the reasoning that one cannot aprobate and reprobate at the same time.
The learned Advocate Mr. Sarder Jinnat Ali along with the learned Advocate Mr. Ashraful Hadi, represented the Assessee-applicant, while the learned current Deputy Attorney General Ms. Kazi Zinat Haque, argued on behalf of the Taxes Department at the time of hearing of the instant Income Tax Reference Application.

Argument of the Assessee-applicant:

The learned Advocate Mr. Sarder Jinnat Ali, appearing on behalf of the Assessee-applicant, while taken this court to the fact that an attempt was made by the Assessee-applicant to avail the opportunity of ADR, as provided under section 152I of the Income Tax Ordinance 1984 and the same having been successful on some points based on factual aspects, but let the issues unresolved so far the question of law is concerned, as certified by the facilitator, which has been submitted before this court as Annexure-D, wherefrom it appears that the issue involve in this reference case centers round the question of law, whether the Taxes Appellate Tribunal correctly and lawfully interpreted the meaning of section 44(1) read with Sixth Schedule, Part-A Paragraph-1(i) of the Income Tax Ordinance 1984, since the Taxes Appellate Tribunal expressed an opinion that by virtue of amendment made by the Finance Act 1999, by way of omitting the word “explanation” from the provision of paragraph No. 1(1) of the 6^th Schedule, Part-A, the income of the Assessee-applicant, a charitable organization, became taxable income.
The learned Advocate Mr. Sarder Jinnat Ali strenuously argued that the IACT while acting under the empowerment of section 10 of the Income Tax Ordinance 1984 as assessing officer, committed error in interpreting the omission of ‘explanation’ from the provision of paragraph No. 1(1) of Pat A of Sixth Schedule as has made the income of the assessee applicant as taxable, in as much as, the IACT did not notice that by its constitution the assessee applicant is a ‘charitable organization’ whose all sorts of income, derived either from donation or from its business activities are applied wholly and actually for the charitable purpose and as such, despite such omission of the provision ‘Explanation’ cannot be treated as changed the constitutional status of the Assessee Applicant. The assessee applicant although further registered under the NGO Bureau affairs, nevertheless its primary registration as charitable organization under the Societies Registration Act 1860 shall not be change, which will make the assessee applicant as entitled to the provision of exemption, even after its amendment through the Finance Act 1999, by omission of the ‘Explanation’.
The learned Advocate Mr. Sarder Jinnat Ali finally argued that such a serious question of law was negligently and mechanically considered by the two lower appellate authorities and as such the question formulated herein is required to be answered in negative and in favour of the Assessee applicant.
The learned Advocate Mr. Sarder Jinnat Ali in support of his argument relied on the case of S. Sundaram Pillai –vs- V.R. Patabiraman, reported in AIR (1985) SCJ 82 and the case reported in 36DLR(AD) 166 and 51 DLR 152.
On the other hand the learned Deputy Attorney General Kazi Zinat Hoque while taken this court through the 6^th Schedule Part A of the Income Tax Ordinance 1984 argued that earlier the income of the assessee applicant, derived from the business activity, was not taxable, but so far the amendment of the said provision is concerned, the IACT correctly treated the same and found that the income derived from the business activity are no move remaining within the purview of exemption and as such correctly assessed the return of the Assessee applicant.
The learned Deputy Attorney General further argued that the instant Income Tax Reference case become infractuous in as much as the matter was referred to the ADR procedure and upon such procedure the parties have come to agreement on the subject matter of the ADR and accordingly the facilitator issued the certificate and as such the provision of section 152P of the Income Tax Ordinance 1984 came into play making the assessee applicant liable for preferring Appeal, under the provision of section 152Q of the Income Tax Ordinance 1984, against the issues which were left unresolved. The Assessee applicant, therefore not entitled to resumption of the proceeding of this income tax reference application and bound to prefer Appeal to get decision upon the issues which were left unresolved.

Deliberation of the court:

In the instant Income Tax Reference Application the Assessee-applicant earlier formulated as many as four questions out of which question Nos. (a) & (b) were related to the issue of denial of the IACT concern, as well as the two appellate authorities for taking into consideration as to the legal provision, that the Assessee-applicant, being a charitable organization, is exempted from the liability of income tax, under the provision of section 44(1) read with Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984.
During the pendency of the instant Income Tax Reference Application the Assessee-applicant obtained a permission from this court on 04.6.2014, to avail the ‘Alternative Dispute Resolution (ADR) Procedure’ as provided under the provision of chapter XVIIIB of the Income Tax Ordinance 1984 and accordingly this court not only accorded the permission but also stayed the instant proceeding invoking the power available under section 152II of the Income Tax Ordinance 1984. Thereafter the ADR was held in the presence of the facilitator Md. Tariq Haider. Later, the Assessee-applicant submitted a supplementary-affidavit before this court, on 8.1.2015 praying for resumption of the instant proceeding informing this court that the facilitator has issued a certificate along with the written agreement of the parties, arrived at in the ADR proceeding, for the assessment year 2001-2002, wherein the Issue No. 2.1, 2.3 & 2.5 were left un-resolved, since the said issues involved the question of law as to the applicability of the provision of section 44(1) read with Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984, in the case of the Assessee-applicant. The assessee-applicant upon such filing of the agreement along with the certificate of the facilitator, reformulated its question of law, directing the same only to the issue as to the applicability of the provision of section 44(1) read with Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984 in its case.
As against the supplementary-affidavit the Taxes department submitted supplementary-affidavit-in-reply, wherein it has been seriously asserted that since the Assessee-applicant voluntarily resorted to the ADR proceeding, as provided under section 152I of the Income Tax Ordinance 1984, the Assesssee-applicant is debarred from the resumption of this proceeding and raising any further question before this court, as the provision of section 152P of the Income Tax Ordinance 1984 barred the same and liable the assessee-applicant to prefer Appeal for obtaining decision on the unresolved issue and as such the instant proceeding became infractuous.
Upon such contentious approach it has now become imperative upon this court to decide the question, at the very outset, as to revival of the instant Income Tax Reference Application, after the conclusion of the ADR proceeding, upon examining the newly inserted provision of ‘Alternative Dispute Resolution (ADR) Procedure’ as has been inserted by the Finance Act 2011, since the same has gone to the root of the instant proceeding.
It appears that the newly inserted Chapter-XVIIIB of the Income Tax Ordinance 1984 provides the recently innovated noble idea of ‘Alternative Dispute Resolution (ADR) Procedure’ within the provision of the Income Tax Ordinance 1984, containing section 152F up to Section 152S of the Income Tax Ordinance 1984, out of which section 152I of the Income Tax Ordinance 1984 provides for the substantive provision of ‘Alternative Dispute (ADR) Resolution’ procedure in the following language;

Income Tax Ordinance 1984
Section 152F. Alternative Dispute Resolution.-
Notwithstanding anything contained in Chapter XIX any dispute of any assessee lying with any income tax authority, Taxes Appellate Tribunal or Court may be resolved through Alternative Dispute Resolution (hereinafter referred to as ADR) in the manner described in the following sections of this Chapter and rules made thereunder.

Section 152I of the Income Tax Ordinance 1984 provides, inter alia, that the Assessee-applicant, if already preferred a Income Tax Reference Application before the High Court Division, it shall obtain a permission from this court for proceeding to the Alternative Dispute Resolution and the provision of section 152II of the Income Tax Ordinance 1984 (inserted through Finance Act 2012) liable the Assessee-applicant to obtain an order of stay of the pending proceeding from this court and upon such prayer this court will not only allow the application, praying for approaching the Alternative Dispute Resolution (ADR) procedure, but also stay the proceeding till disposal of the ADR proceeding. The provision of section 152II of the Income Tax Ordinance 1984 reads as follows;

Income Tax Ordinance 1984
Section 152II. Stay of proceeding in case of pending appeal or reference at Appellate Tribunal or High Court Division.-
Where an assessee has filed an application for ADR for any income year and for the same income year, the Deputy Commissioner of Taxes has filed an appeal before the Appellate Tribunal or the Commissioner has made a reference before the High Court Division and no decision has been made in that respect by the Appellate Tribunal or High Court Division as the case may be, the proceeding of such appeal or reference shall remain stayed till disposal of the application for ADR.

The aforesaid provision indicates that the Income Tax Reference proceeding shall be kept stayed in this court till a report from the facilitator as to the conclusion of the ADR proceeding is being filed by the facilitator pursuant to the provision of section 1520(6) of the Income Tax Ordinance 1984, so far the dispute resolution is a unsuccessful one. The said provision of section 1520(6) of the Income Tax Ordinance 1984 reads as follows;

Income Tax Ordinance 1984
Section 1250(6). Decision of the ADR.-
Where no agreement, whether wholly or in part, is reached or the dispute resolution is ended in disagreement between the applicant-assessee and the concerned Commissioner’s Representative for non-cooperation of either of the parties, the Facilitator shall communicate it, in writing recording reasons thereof, within fifteen days from the date of disagreement, to the applicant and the Board, the concerned court, Tribunal, appellate authority and income tax authority, as the case may be, about such unsuccessful dispute resolution.

In the instant case it appears that the Assessee-applicant obtained the permission from this court to proceed to ADR on 04.6.2014 and the facilitator issued the certificate along with the agreement of the parties, which has been submitted before this court as Annexure-D to the supplementary-affidavit, dated 8.1.2015, whereupon the Assessee-applicant prayed for resumption of the instant Income Tax Reference Application and to answer the question which has been left un-resolved in the ADR Proceeding regarding the applicability of section 44(1) read with Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984.
It appears the issues left out to be resolved in ADR, clearly involves the issue of laws. An issue of law is the subject of court or the tribunal to be resolved in accordance with the provision of law. No agreement inter vivos can be made on the issue of law and even it is done the same will be a nullity. The proceeding of ADR only allow the parties to come to an agreement in the presence of facilitator, who must be present in the proceeding of negotiation of the parties, but has nothing to do and to remain present as on looker, only to issue a certificate whether the ADR is a success or failure. In the ADR procedure the parties may only come to an agreement so far the factual aspects are concerned and the law has not allowed the parties to make an agreement, derogatory to the provision of law.
The argument advance by the learned Deputy Attorney General Ms. Kazi Zinat Haque that the instant Income Tax Reference Application cannot be revived as the facilitator has issued the certificate on the basis of the agreements of the parties, has got no merit to be considered by this court. Because, the parties did not resolve the issue of law and left the same unresolved to be decided by this court. Any question involving legal issue cannot be resolved in Alternative Dispute Resolution procedure. The entire Income Tax Reference jurisdiction requires the expression of opinion by the court on legal issue as has been provided in section 160 of the Income Tax Ordinance 1984. Therefore, the question which was un-resolved in the Alternative Dispute Resolution Procedure can well be taken into consideration by this court for expressing opinion on the same.
But it appears that section 152Q of the Income Tax Ordinance 1984 provided for an appeal which “may” be preferred by the Assessee-applicant on the failure of the parties to reach into an agreement in the Alternative Dispute Resolution Procedure. The said provision runs as follows;

Income Tax Ordinance 1984
Section 152Q: Limitation for appeal where agreement is not concluded.-
(1) Notwithstanding anything contained in any provision of this Ordinance, where an agreement is not reached under this Chapter, wholly or in part, the assessee may prefer an appeal-
(a) To the Appellate Joint Commissioner of Taxes or appellate Additional Commissioner of Taxes or Commissioner of Taxes (Appeals), s the case may be, where the dispute arises out of an order of a Deputy commissioner of Taxes;
(b) To the Taxes Appellate Tribunal where the dispute arises out of an order of the Appellate Joint Commissioner of Taxes or Appellate Additional commissioner of Taxes or Commissioner of Taxes (Appeals), as the case may be; and
(c) To the respective appellate authority or court from where the assessee applicant has got permission to apply for ADR.
(2) In computing the period of limitations for filing appeal, the time elapsed between the filing of the application and the decision or order of the ADR shall be excluded.

In this respect the learned Advocate Mr. Ashraful Hadi, appearing along with the learned Advcoate Mr. Sarder Jinnat Ali, drawn the attention of this court, that the word “appeal” used in the provision of section 152Q of the Income Tax Ordinance 1984 has to be interpreted in a harmonious way pursuant to the established principle of interpretation of legal provision, upon taking all the relevant provision into consideration. In such interpretation of the provision of section 152Q of the Income Tax Ordinance 1984, this court finds that although the procedure of appeal has been provided in section 152Q of the Income Tax Ordinance 1984, but the word “may” as used in the said provision makes it an optional provision for the Assessee-applicant to prefer the appeal before appellate authorities of this court, meaning thereby that any issue upon which the parties fail to come to an agreement, shall be the subject of Appeal before the Appellate Division of the Supreme Court of Bangladesh as of right, without resorting to the provision of Article 103(3) of the Constitution, if the party aggrieved intends to opt for the Appeal.
However, in the instant case the provision of section 152Q of the Income Tax Ordinance 1984 has no application, in as much as the parties have not failed on any factual issue, rather the parties left the legal issue unresolved. Failing to resolve on any point and leaving aside any point unresolve, are not the same and as such the assessee applicant is not liable to opt for preferring Appeal in the instant case against the unresolved issues.
Now turning to the question as has been raised in this income tax reference application, it appears that the parties to the ADR left unresolved the question as to the applicability of the provision of section 44(1), read with Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984 as to the tax liability of a charitable organization, like the Assessee-applicant and accordingly this court is now duty bound to answer the question as has been reformulated in the supplementary-affidavit.
The provision of paragraph No. 1(1) of part A of sixth Schedule of the Income Tax Ordinance 1984 was in the form as reproduced below, at the relevant period, before it was amended by the Finance Act 1999;

“Any income derived from property held under trust or other legal obligation wholly for religious or charitable purpose, and in the case of property so held in part only for such purposes, the income applied, or finally set apart for application, thereto.
.......................................
Explanation.- For the purposes of this paragraph, “property held under trust or other legal obligation” includes a business undertaking so held and where a claim is made that the income of any such undertaking shall not be included in the total income of the person in receipt thereof the Deputy Commissioner of Taxes shall have the power to determine the income of such undertaking in accordance with the provisions of this Ordinance relating to assessment; and where any income so determined is in excess of the income as shown in the accounts of the undertaking such excess shall be deemed to be applied to purposes other than charitable or religious purposes.”

By the Finance Act 1999 the ‘Explanation’ portion of the provision was omitted, upon which not only in the instant case but on the other cases as well, the assessing officers started to treat the income derived from the business activity by the charitable organization as not entitled to the exemption, as provided under section 44(1) of the Income Tax Ordinance 1984. This being a wrong interpretation of such omission this court has already decided that such decisions of the assessing officers were wrong in some other cases.
In this respect the referred case of Bangladesh Rural Advancement Committee (BRAC)-Vs-The Commissioner of Taxes in Income Tax Reference Application No. 279 of 2003, may be profitably examined, wherein a Division Bench of this court, upon considering a series of previous decisions from the Privy Council and up to the Appellate Division of Bangladesh Supreme Court has come to the decisive holding that despite the fact of deletion of ‘Explanation’ from the provision of paragraph 1(1) of the Sixth Schedule, Part-A, of the Income Tax Ordinance 1984, the non taxability of the income of the charitable organization shall continue to be applicable. The relevant portion of the decision is reproduced below for better appreciation;

“The word ‘property’ has been used but in the proviso the word ‘business’ has been used, Nevertheless, there is no difficulty to hold that ‘business’ is also a property. The business is a property is an established fact; it was held so as far back as in the case of the Trustees of Bombay Tribune, by the Privy Council, reported in 7 ITR 415. In the Bangladesh Statue, after the amendment brought about in 1973, it has been specifically laid down that for the purpose of this clause (i) property held under trust “includes a business undertaking so held”. The property in this case, consisting, as stated above, of the running business of launch-plying is held under trust, and income derived therefrom has been applied wholly for a religious or charitable purpose. But the proviso is to the effect that in the case of income from business this clause shall not apply, even if the income has been applied wholly for religious or charitable purpose, unless the business has been run in the course of the carrying out of a religious or charitable purpose of the trust. It should be noted that the proviso contains two other conditions (1) one is that the business is carried on “on behalf of a religious or charitable institution”, and the (2) other is that ‘the work in connection with the business is carried on by the beneficiaries” of the trust or institution.

It appears that the similar question has arisen in the issue in front of this court as to the applicability of the provision of Paragraph-1(i) of the Sixth Schedule, Part-A, of the Income Tax Ordinance 1984, as it was prevailing at the relevant period, since admittedly the Assessee-applicant is a charitable organization having no dividend to be paid to its sponsor directors and the whole income is being applied for the charitable purpose. Therefore, the issue appears to have been wrongly considered by the IACT concern, who found that due to the deletion of the ‘Explanation’ from the provision of Sixth Schedule, Part-A, Paragraph-1(i) of the Income Tax Ordinance 1984, the charitable organization became taxable under the said provision. The said issue was not meticulously or independently considered by the two appellate authorities which practically mechanically affirmed the assessment order, on the basis that the IACT concern has shown a cogent reason. But this court finds that the reason, as has been shown by the IACT concern, not being lawful, the question which has been formulated in the supplementary-affidavit, is required to be answered in negative and in favour of the Assessee-applicant.
Under the reasoning and discussion as above, this court finds merit in the instant Income Tax Reference Applications and the question, as has been formulated in the supplementary-affidavit dated 8.1.2015, is required to be answered in negative and in favour of the Assessee-applicant.

Result of the cases:

In the result, the instant Income Tax Reference Application is allowed.
The question as has been formulated by the Assessee-applicant in the instant Income Tax Reference Application is hereby answered in negative and in favour of the Assessee-applicant.

However, there shall be no order as to costs.
Ed.

Provat Kumar Das Vs. Manager, Agrani Bank, Main Branch, Saheb Bazar, Rajshahi and another, 15 MLR (AD) (2010) 96

Case No: Civil Petition for Leave to Appeal No. 28 of 2008

Judge: Shah Abu Nayeem Mominur Rahman ,

Court: Appellate Division ,,

Advocate: Md. Mozaffar Hossain,,

Citation: 15 MLR (AD) (2010) 96

Case Year: 2010

Appellant: Provat Kumar Das

Respondent: Manager, Agrani Bank and another

Subject: Artha Rin,

Delivery Date: 2009-04-26

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J

Provat Kumar Das
.…...............Petitioner
Vs.
Manager, Agrani Bank, Main Branch, Saheb Bazar, Rajshahi and another
….…..........Respondents

Judgment
April 26, 2009

Artha Rin Adalat Ain, 2003
Section 34 is not dependent on section 33. Artha Rin Adalat is competent to pass order for civil imprisonment.

Lawyers Involved:
Mozaffar Hossain, Senior Advocate, instructed by Bivash Chandra Biswas, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 28 of 2008.
(From the judgment and order dated 05.12.2007 passed by the High Court Division in Writ Petition No. 3868 of 2004.)

JUDGMENT

Shah Abu Nayeem Mominur Rahman J.

1. This leave petition is directed against the judgment and order dated 05.12.2007 passed in Writ Petition No. 3868 of 2004 by the High Court Division discharging the Rule.

2. The Rule arises out of the order dated 12.04.2004 passed by the Joint District Judge and Artha Rin Adalat, 3rd Court, Rajshahi, in Money Execution Case No.38 of 1995 arising out of Artha Rin Suit No.16 of 1992 by which the writ petitioner was ordered for civil imprisonment for a period of three months (90 days) under the provisions of Section 34 of the Artha Rin Adalat Ain, 2003. The respondent-bank filed Artha Rin Suit No. 16 of 1992 in the Artha Rin Adalat, 3rd Court, Rajshahi, for realization of Tk. 21,63,148/- which arose out of the banking loan facilities enjoyed by the defendant-loanee Nos.1-5 for import of Nilon Code Tyre and Tube by opening L.C. and that the defendant No.6 stood as guarantor and secured the loan. The writ petitioner was the defendant No.3 in the suit. The suit was decreed ex parte in due course and the respondent bank filed Money Execution Case No. 38 of 1995, which was renumbered as Money Execution Case No. 41 of 2004, for satisfaction of the decree, if required by sale of the scheduled property through auction. The decree holder bank, having taken step for auction sale of the property and there being no response, prayed for civil imprisonment of the judgment-debtor by filing an application under Section 34 of the Artha Rin Adalat Ain, 2003 and the executing court by its order dated 12.04.2004 allowed the prayer and ordered for civil imprisonment of the judgment debtors for three months, the period to be counted from the date of arrest.

3. Being aggrieved there-against the plaintiff moved the High Court Division in its writ jurisdiction, whereupon a Rule was issued. The High Court Division on hearing the contesting parties discharged the Rule with cost of Tk. 2,000/- observing, amongst others:-

"From a combined reading of those subsections of section 34 of the Artha Rin Adalat Ain, 2003 it transpires that the Adalat is empowered to pass an order of warrant of arrest/civil imprisonment directly when no auction sale is possible to be held for any reason. We have carefully examined the writ petition, affidavit-in-opposition and supplementary affidavit-in-opposition along with connected papers as filed therewith, it appears that the respondent No.1, Agrani Bank filed Money Execution Case No. 38 of 1995 in the Artha Rin Adalat, Rajshahi on 12.08.1995 against the petitioner and other judgment debtors. The Adalat by order dated 24.11.2003 directed to publish notice under the provisions of section 33 of the Ain, 2003 and on that, the auction sale notice was published in the 'Daily Sonar Desh' on 19.2.2004 mentioning date of auction sale on 23.2.2004 at 3 p.m. but the property in question was not sold due to non availability of the auction purchaser. Therefore, the contention of the learned Advocate for the petitioner that no attempt was made to sale the property as per mandatory provision of section 34(9) of the Ain, 2003 by the respondent No.2 before passing the impugned order of civil imprisonment is wholly untenable.”

So, in any view of the matter, the learned Judge of the Adalat committed no illegality in passing the impugned order of civil imprisonment rather, it appears to us that the impugned order is well founded in law. The learned Judge of the Adalat appears to have considered all the legal aspects.

In view of our discussions made in the foregoing paragraphs vis-a-vis the law, it is by now clear that the instant rule must fail."

4. We have perused the application and heard the learned Advocate. The learned Advocate appearing for the leave petitioner submitted that the provision of Section-33 of the Artha Rin Adalat Ain, 2003 having not been complied with, the order for civil imprisonment under Section 34 of the Artha Rin Adalat Ain, 2003 was bad in the eye of law and the High Court Division arrived at its decision in not considering such aspect of the law and that the Artha Rin Adalat passed the order for civil imprisonment ex parte without providing any opportunity of hearing to the judgment-debtor-the writ petitioner, which is ex-facie a violation of the principle of natural justice and thus the High Court Division acted illegally in passing the impugned order.

5. We have perused the leave petition and considered the submissions of the learned Advocate. We have also perused the provisions of Sections 33 and 34 of the Artha Rin Adalat Ain, 2003. It appears that the Section 34 of the Artha Rin Adalat Ain, 2003 is clear and provides for ordering civil imprisonment up to 6 months against a judgment-debtor for compelling to satisfy the decree. Section 34 is not dependant upon Section-33. In the instant case, the decree holder has taken step for auction sale of the property but there being no response, auction sale could not be held. Further it appears from the provisions of Section-34 of the Artha Rin Adalat Ain, 2003 that the law provides for simple civil imprisonment of the judgment-debtor to compel to make the payment for satisfaction of the decree and is not an alternative punishment in lieu of payment of the decretal amount. Civil imprisonment will not exempt payment of the decretal amount.

6. Be that as it may having regard to the reasons given by the High Court Division in discharging the rule as well as the submissions of the learned Advocate for the leave petitioner and the provisions of Section 34 of the Artha Rin Adalat Ain, 2003, we are of the view that the impugned judgment and order has been passed by the High Court Division in accordance with law and no interference is called for.

Accordingly, the application for leave to appeal is dismissed.

Ed.

Pubali Bank Limited Vs. Chairman, First Labour Court, Dhaka, II ADC (2005) 12

Case No: Civil Appeal No. 7 of 1998

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Salahuddin Ahmed,A.K.M. Shamsul Karim,,

Citation: II ADC (2005) 12

Case Year: 2005

Appellant: Pubali Bank Limited

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 2004-7-20

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzal Islam J

Pubali Bank Limited
...........................Appellant
Vs.
The Chairman, First Labour Court, Dhaka and another
..................Respondents

Judgment
July 20, 2004.

Penal Code (XLV of 1860)
Section 409
The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No. 2 was not legal. …….….. (9)

Since the departmental proceeding as well as the criminal proceeding were flawed and the order of the dismissal of the Respondent No.2 being based on the materials collected against him in flawed proceeding, as such, it cannot be said that the Labour Court was not correct in making the order of reinstatement of the respondent No. 2 with back wages. ……… (11)

Lawyers Involved:
Salahuddin Ahmed, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellant.
A.K.M. Shamsul Karim, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record-For Respondent No. 2.
Not represented-Respondent No. 1.

Civil Appeal No. 7 of 1998
(From the Judgment and Order dated May 8,1997 passed by the High Court Division in Writ Petition No. 1905 of 1990).

JUDGMENT

Md. Ruhul Amin J.

The appeal by leave is against the judgment and order dated May 8, 1997 of a Division Bench of the High Court Division in Writ Petition No. 1905 of 1990 discharging the Rule obtained against the judgment and order dated June, 2, 1990 of the 1st Labour Court, Dhaka passed in Complaint Case No. 140 of 1984 allowing the same and thereupon setting aside the order of dismissal dated 21.8.1984 and making direction to the appellant (second party before the Labour Court) to reinstate the Respondent No. 2 (first party before the Labour Court) in the service in his former post with full back wages.

2. The Respondent No. 2 filed the aforementioned Complaint Case stating, inter alia, that on 1.6.1971 he was appointed as Godown Inspector by the appellant and later on he was promoted to the post of Inspector of advances on 29.11.1977 with effect from 1.12.1977 with terms and conditions of service to that of previous post, that the appellant served on the Respondent No. 2 charge sheet on 8.3.1979 and he replied to that denying the allegation made in the charge-sheet, that he was placed under suspension on 20.6.1979 that he was served with two charge sheets, one was of 8.10.1979 and the other was of 19.5.1982, that the Respondent No. 2 replied to the allegations made in the said two charge sheets and claimed to be innocent, that the appellant appointed an Inquiry officer to inquire into the charges framed against the Respondent No. 2 but the Inquiry Officer did neither held any inquiry of the charges leveled nor examined any witness to prove the charges leveled against Respondent No. 2 in his presence, that Respondent No.2 was not allowed to cross-examine the witness examined by the appellant and that Respondent No. 2 was not given proper opportunity to defend himself, that Inquiry officer did not find anything against the Respondent No.2 and the charges leveled were not established against the Respondent No. 2 that the appellant dismissed the Respondent No. 2 on 21.8.1984 and he received the said order of dismissal on 30.8.1984, that Respondent No. 2 sent grievance petition as against the order of dismissal by registered post on 11.9.1984 and also by special messenger, that the appellant did not reply to his grievance petition nor heard him.

3. The appellant contested the complaint case by filing written objection denying the material averments made in the petition of complaint and stating, inter alia, that the Respondent No.2 was appointed by the appellant as Godown Inspector on 1.6.1971 and that on 1.12.1977 he was promoted to the rank of Inspector of advances, that the Respondent No.2 was charge sheeted on 8.10.1979 and 19.5.1982 for (i) defying and disobeying the order of controlling authority, (ii) for creating shortfall in the stock of goods pledge to the Bank by the borrowers, (iii) negligence of duties and (iv) committing other misconducts, that all charges were duly inquired into in accordance with law and service Rules and that on the basis of the enquiry report Respondent No. 2 was dismissed with approval from the appropriate authority, that Respondent No. 2 is an officer entrusted with the duty of the administration and managerial nature and hence being not a worker complaint case under the Employment of Labour (standing Orders) Act is not maintainable, that enquiry was held in accordance with law by providing opportunity to the Respondent No.2 to defend himself, that Inquiry officer found the Respondent No.2 guilty of the charges leveled against him.

4. The Labour Court on the findings that the first party was a worker under the second party as Inspector of advances and he was not an officer under the second party Pubali Bank and hence the Complaint case is quite maintainable, that on perusal of the evidence of P.W.1 and D. W. 1 the Labour Court was of the opinion that witnesses for the prosecution were examined in the absence of the first party and those first party was not given any chance to defend him during the enquiry and to cross-examine the witnesses examined by the second party on three occasions and thus the Enquiry officer did not held enquiry against the first party in accordance with law and the first party was not given any chance to defend him during the enquiry and to cross-examine the witnesses examined by the second party and as such the enquiry held against the first party by the enquiry officer was not fair and proper and consequently the order of dismissal passed by the second party dismissing the first party from service was not legal and tenable under the law and accordingly first party is entitled to be reinstated in service in his former post under the second party with full back wages, allowed the complaint case.

5. The appellant as against the judgment and order of the Labour Court moved the High Court Division by filing Writ Petition N. 1905 of 1990,

6. It was contended by the appellant before the High Court Division that the Labour Court made the decision on guess without considering the fact that there was ample evidence on record to find that the respondent No.2 was guilty of the offence charged and that the Enquiry officer followed the procedure laid down in the Employment of Labour (standing Orders), Act (The Act) in finding the respondent No.2 guilty of the charges and that Enquiry officer held enquiry in presence of the respondent No. 2 and afforded him all opportunity to cross-examine the witness and also to defend him that Labour court was in error in holding that the complaint case was maintainable since there was sufficient materials on record to show that the second party was an officer holding managerial as well as supervisory powers, that the judgment of the Labour Court is not sustainable since the same has been made disregarding the established principle that no court shall interfere with the findings of domestic enquiry unless gross illegality purported to have been committed is noticed and that there is nothing on record to show that any gross illegality has been committed in holding enquiry against the Respondent No.2 causing prejudice to him in any way, that respondent No.2 without any plausible cause remained absent during enquiry and as such he can not be allowed to take benefit out of his default.

7. The High Court Division discharged the Rule on the findings that the Labour Court has rightly found that the case filed by the respondent No.2 under Section 25(1) (b) of the Act was maintainable, that respondent No.2 was not provided with opportunity to defend himself and thus there was infringement of his fundamental right as envisaged under Articles 27 and 31 of the Constitution and as such Labour Court has correctly held that the findings of the Enquiry officer was bad in law, that the way enquiry was held the same offended the principle of natural justice, that Writ-Petitioner has failed to prove that the Respondent No.2 was not a worker.

8. Leave was granted to consider the submission that the judgment dated November 10, 1991 passed by the Special Judge, Dhaka in Special Case No. 254 of 1983 convicting the respondent No.2 under Section 409 of the Penal Code read with Section 5(2) of Act II of 1947 and sentencing him to 10 years simple imprisonment with a fine of Tk. 5 lakhs in default to suffer simple imprisonment for further 5 years was not brought to the notice to the High Court Division and that the basis of allegation in the departmental proceeding was the same as in the criminal case and as such whatever may have been the irregularity in the departmental proceeding as found by the Labour Court, the person who has been convicted by a Criminal Court could not be foisted upon an unwilling private employer who has lost trust upon the said person. It was also submitted that in view of the judgment of the criminal court which was passed upon evidence collecting in presence of the accused the order of the Labour Court directing payment of full wages cannot be justified.

9. It is seen from the materials on record that enquiry against the respondent no.2 by the appellant was not one fulfilling the requirement of law, or in other words enquiry was held by the appellant without affording opportunity to the respondent No.2, either to cross-examine the witness examined by the department or to put forward the case of the respondent No.2 and thus the High Court Division as well as Labour Court held that the enquiry that was held in respect of the charges leveled against the respondent No. 2 was not legal and that there has been violation of the principle of natural Justice. On our perusal of the materials on record we are of the view that enquiry that was intimated to inquire into the allegations made in the charge sheet was flawed one and as such the enquiry report being not legal, the order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No.2 was not legal.

10. At the time of granting leave it was submitted that inadvertently the appellant did not bring to the notice of the High Court Division that the respondent No.2 was convicted by the court of Special Judge, Dhaka in Special Case No. 254 of 1983 under section 409 of the Penal Code and section 5(2) of Act II of 1947 and sentenced to 10 years simple imprisonment with a fine of Tk. 5 lakhs in default to suffer simple imprisonment for further 5 years and as such whatever "may have been the irregularity in the departmental proceeding as found by the Labour Court" the respondent No.2 "could not be foisted upon an unwilling private employer who has lost trust upon the said person."

11. It may be mentioned that during the pendency of the appeal, the criminal appeal, Criminal Appeal No. 2111 of 1999, which the respondent No.2 preferred against his conviction and sentence in Special Case No. 254 of 1983, has been disposed of on May 17, 2004 by the High Court Division and the High Court Division has allowed the Criminal appeal of respondent No.2 upon setting aside the conviction and sentence passed by the Court of Special Judge in Special Case No. 254 of 1983. We have the advantage to look into the judgment of the High court Division at the time of hearing of the appeal and there from it is seen that the criminal proceeding that was initiated under Section 409 of the Penal Code and section 5(2) of Act II of 1947 was also flawed and because of that the High Court Division set aside the conviction and sentence passed on the respondent No.2 by the Court of Special Judge in Special Case No. 254 of 1983. It was the contention, at the time of granting leave to appeal, of the learned counsel for the appellant that whatever irregularities there were in the departmental proceeding as noticed by the Labour Court but because of the judgment of the criminal case order of the Labour Court for reinstatement of the respondent No.2 with back wages was not a justified one. The merit of this submission has disappeared on the acquittal of the Respondent No.2 from the charges leveled against him in Special Case No. 254 of 1983. Since the departmental proceeding as well as the criminal proceeding were flawed and the order of dismissal of the Respondent No. 2 being based on the materials collected against him in flawed proceeding, as such, it cannot be said that the Labour Court was not correct in making the order of reinstatement of the respondent No. 2 with back wages. The submissions for consideration where of leave was obtained would have been of merit, had the proceeding, departmental and Criminal were not flawed and if the Criminal appeal had not ended in the acquittal of the respondent No.2 The contentions that were made at the time of hearing of the petition for leave to appeal and in the background thereof leave was granted do no longer hold good because of setting aside of the conviction and sentence that was passed by the Court of Special Judge in Special Case No. 254 of 1983 upon allowing of the appeal.

12. In the background of the materials on record it is seen that the Respondent No. 2 was dismissed from the service of the appellant on the basis of the flawed, departmental proceeding and criminal proceeding and consequently as the order of dismissal so made as was not legal the only conclusion that follows is that respondent No. 2 was not dismissed from the service of the appellant on august, 21, 1984. In that state of the matter the Labour Court was quite correct in making the order for reinstatement of the respondent No. 2 and for payment of back wages.

13. It has been represented by the learned Counsel of the respondent No.2 that by the time the Respondent No.2 has attained the age of retirement as per rules of the appellate. In that state of the matter the appellant is directed to pay the respondent No.2 his dues i.e. back wages as if he was never out of employment of the appellant till the attainment of the age of retirement as well as to pay the pension benefits that has accrued to the respondent No.2 having and gone on retirement as the employee of the appellant.

In the background of our discussions made hereinabove we do not find any merit in the appeal.

The appellant is directed to pay the respondent No.2 his back wages and the pension benefits.

The appeal is dismissed with cost.

Ed.

Pubali Bank Limited Vs. Md. Abdur Rashid Miah and others, 2016(1) LNJ (AD) 186

Case No: Civil Petition For Leave To Appeal No. 1659 of 2013

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,,

Citation: 2016(1) LNJ (AD) 186

Case Year: 2016

Appellant: Pubali Bank Limited

Respondent: Md. Abdur Rashid Miah

Subject: Writ Jurisdiction, Words and Phrases,

Delivery Date: 2014-11-18

APPELLATE DIVISION
(CIVIL)

Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J

Judgment on
18.11.2014

Pubali Bank Limited

. . . Petitioner

-Versus-

Md. Abdur Rashid Miah and others

. . . Respondents

Constitution of Bangladesh, 1972
Article 102(5)
The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. The Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. . . . (8)

Words and Phrases
Circular
The writ petitioners will not get the benefit of the Bank’s circular dated 31.01.2012 since the writ petitioners’ LPR period had expired prior to the circular coming into force.
Since the Board of Directors of the Bank had decided to extend the service period of its employees from 57 to 59 years, the Bank giving such benefits to its employees by means of a circular post dates the writ petitioners’ superannuation and is, therefore, not applicable in their case. . . . (8 and 9)

Public Servants (Retirement) Act (XII of 1974)
Section 4A
The subsequent amendment to the Public Servants (Retirement) Act, 1974 will not be automatically incorporated in the Service Regulations of the Bank, until and unless the Bank chooses to adopt the same by amending the relevant Service Regulations. . . . (8)

Md Anwarul Alam Vs. Government of Bangladesh in Civil Petition for Leave to Appeal No. 227 of 2012 ref.

For the Petitioner: Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record
The Respondents : Not represented

Civil Petition For Leave To Appeal No. 1659 of 2013
(From the judgment and order dated 17th of June, 2012 passed by the High Court Division in Writ Petition No. 9031 of 2010.)

JUDGMENT

Muhammad Imman Ali, J:

1. The delay of 393 days in filing the civil petition for leave to appeal is hereby   condoned.

2. This civil petition for leave to appeal is directed against the judgment and order dated 17.06.2012 passed by the High Court Division in Writ Petition No. 9031 of 2010 disposing of the Rule.

3. The facts of the instant case, in brief, are as follows:

The Writ petitioners (respondents herein) were Freedom Fighters and appointed in different posts by Pubali Bank Limited in the year 1973. The writ petitioner No. 1, 2 and 3 went on Leave Preparatory to Retirement (L.P.R.) on 31.03.2009, 30.04.2009 and 31.12.2008 respectively and their L.P.R. period had expired on 30.03.2010, 29.04.2010 and 30.12.2009 respectively. The Public Servants (Retirement) Act, 1974 was amended by the Public Servants (Retirement) Act, 2010 adding inter alia section 4A, which provides for extension of the period of service to public servants who were freedom fighters from 57 to 59 years of age. The writ petitioners who were on LPR claimed that they would get the benefit of the provision since the law provided that they would be taken out of LPR and would continue to serve up to the 59^th year.

4. Pubali Bank Ltd., writ respondent No. 6, petitioner herein, in its affidavit in opposition claimed that the writ petitioners were not public servants as they were under the employment   of a private bank and as such the principle of master and servant was applicable and matters relating to their service was not amenable to the writ jurisdiction, and therefore the writ petition was not maintainable. Moreover, since the bank is not a statutory corporation or a local authority, the employees were bound by the Pubali Bank (Employees) Service Regulations, 1981 which in fact adopted certain provisions from the Public Servants (Retirement) Act, 1974, but the subsequent amended provisions of 2010 have not been incorporated in the Bank’s Service Regulations and hence are not applicable to the writ petitioners.

5. The High Court Division heard the parties and upon consideration of the submissions and materials on record, by the impugned judgment and order, disposed of the Rule suggesting that the Pubali Bank Limited may consider to allow the petitioners to serve in their respective posts from 57 to 59 years. The Pubali Bank is now before us with the instant civil petition for leave to appeal.

6. Mr. Mahmudul Islam, learned Senior Advocate appearing on behalf of the petitioner submits that the writ petitioners relied upon a circular of the Pubali Bank Ltd. dated 31.01.2012 by which the benefits under section 4A of the Public Servants (Retirement) (Amendment) Act, 2010 were given to employees of Pubali Bank Ltd, who were freedom fighters. However, he points out that the said circular was effective from 01.01.2012, whereas the writ petitioner’s LPR period expired long before that. The learned Advocate further submits that, Pubali Bank Ltd, being a private bank, the writ petition was not maintainable as held by the same Bench of the High Court Division in Writ Petition No. 6017 of 2010 wherein judgement was delivered on 13.03.2011 holding that since Pubali Bank Limited was a private bank, the writ petition was not maintainable. He points out further that in the impugned judgement their Lordships of the High Court Division did not decide the question of maintainability of the writ petition, but as a pious wish suggested that since the Board of Directors of the writ respondent Bank had decided to extend the service period of employees from 57 to 59 years, “for the cause of justice, equity and fair play the Pubali Bank Limited may also consider to allow the petitioners to serve their respective posts from 57 to 59 years.”

7. No one has appeared on behalf of the respondents.

8. We have decided earlier in Md Anwarul Alam Vs. Government of Bangladesh in Civil Petition for Leave to Appeal No. 227 of 2012, which arose out of Writ Petition No. 6017 of 2010, that the bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority. Moreover, we accept the submission of Mr. Mahmudul Islam that the writ petitioners will not get the benefit of the Bank’s circular dated 31.01.2012 since the writ petitioners’ LPR period had expired prior to the circular coming into force. We also accept that the subsequent amendment to the Public Servants (Retirement) Act 1974 will not be automatically incorporated in the Service Regulations of the Bank, until and unless the Bank chooses to adopt the same by amending the relevant Service Regulations.

9. Finally, we find that in this case the learned Judges of the High Court Division merely expressed their wish that the Bank may consider allowing the petitioners to serve up to their age of 59 years since the Board of Directors of the Bank had decided to extend the service period of its employees from 57 to 59 years. However, there was no finding that the petitioners had any such legal right to have their period of service extended up to 59 years of their age. Indeed, in our view the Bank giving such benefits to its employees by means of a circular post dates the writ petitioners’ superannuation and is, therefore, not applicable in their case.

10. With the above observations the instant civil petition for leave to appeal is disposed of.

Ed.

Pubali Bank Ltd. Vs. Bangladesh and others [4 LNJ (2015) 366]

Case No: Writ Petition No. 2258 of 2009

Judge: J. B. M. Hassan,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Mrinal Kanti Biswas,Ms. Kazi Zinat Hoque,,

Citation: 4 LNJ (2015) 366

Case Year: 2015

Appellant: Pubali Bank Ltd.

Respondent: Bangladesh and others

Subject: Artha Rin, Writ Petition, Ex-parte Decree,

Delivery Date: 2012-10-07

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Zinat Ara, J.
And
J. B. M. Hassan, J.

Judgment on
07.10.2012

}
}
}
}
}
}

Pubali Bank Ltd., Principal Branch, 26, Dilkusha C/A, Motijheel, Dhaka.
. . . Petitioner
-Versus-
The Government of the People’s Republic of Bangladesh and others
. . .Respondents

Artha Rin Adalat Ain (VIII of 2003)
Section 19
Section 19(4) of the Ain, though empowers the Adalat to allow the application instantly if the condition provided in section 19(3) of the Ain as to deposit of 10% of the decretal dues is complied with but that application has to be filed within the limitation period as provided under section 19(2) of the Ain and subject to section 19(3) of the Ain. Thus, section 19(4) of the Ain comes into operation if the application is filed in compliance with both the conditions as prescribed in sections 19(2) and 19(3) of the Ain i.e. limitation period and deposit of 10% of the decretal dues. . . . (15)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)
Under section 19(2) of the Ain, the defendant can also file application for setting aside exparte decree within 30 days from the date of knowledge (অবগত হইবার ৩০ দিব‡সর মধ্য) about the said decree. But, to exercise such statutory right, the defendant introduces a particular fact as to date of his knowledge about the exparte decree. . . . (18)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(2)
On pronouncement of exparte decree a legal right has been accrued in favour of the plaintiff (decree holder) and allowing of an application for setting aside the said decree, is curtailing the accrued right of the decree-holder (plaintiff) and as such, natural justice demands that decree holder (plaintiff) should be heard in disposing of the said application so as to fair adjudication of the fact about the correctness of the date of knowledge as alleged by the defendant. . . .(19)

Artha Rin Adalat Ain ( VIII of 2003)
Section 19(2)
Though, section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder plaintiff to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character. . . . (20)

Artha Rin Adalat Ain (VIII of 2003)
Section 19
In addition to compliance of section 19(3) by depositing 10% of the decretal dues the defendant shall have to satisfy the Adalat that the application has been filed within the limitation period inasmuch as filing of an application under section 19(2) of the Ain is subject to compliance of limitation and the section 19(3) of the Ain. Therefore, on receipt of an application in pursuance of section 19(2) of the Ain, if the Adalat is satisfied that both the conditions of section 19(2) and 19(3) of the Ain, is complied with, it shall allow the said application as per section 19(4) of the Ain. . . . (22)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(4)
Section 19(4) of the Ain provides that on deposit of 10% of the decretal dues the Adalat shall allow the application setting aside the ex-parte decree and the suit shall be restored to its original file and number. But before that the defendant has to satisfy the Adalat about requirement of section 19(2) of the Ain in the manner as discussed above i.e. whether the defendant filed the application within the limitation period has to be proved and that since section 19(2) of the Ain is subject to section 19(3) of the Ain, therefore, requirement of deposit of 10% of the decretal dues under section 19(3) of the Ain shall also have to be complied with before deciding the limitation period. Thus, it is apparent that unless both the requirements of sections 19(2) and 19(3) of the Ain are complied with, the Adalat has no scope to allow the application under section 19(4) of the Ain setting-aside the exparte decree even if the defendant deposits 10% of the decretal dues. . . . (23)

Artha Rin Adalat Ain (VIII of 2003)
Section 19(4)
Section 19(4) of the Ain is mere a operating provision prescribed by the legislature to allow the application for setting aside the exparte decree and to restore the suit to its original file and number but the said application has to be filed in compliance with the sections 19(2) and 19(3) of the Ain. Therefore, to apply section 19(4) of the Ain, the Adalat has to be satisfied that the application has been filed properly within the limitation period as prescribed in section 19(2) of the Ain and also in compliance with section 19(3) of the Ain (deposit of 10% of the decretal dues) and that in determining such limitation period particularly the correctness of the date of knowledge as per requirement of section 19(2) of the Ain, notice has to be served upon the plaintiff. . . . (24)

Abul A’la Moudoodi Vs. West Pakistan, 17 DLR and Maneka Gandhi Vs. Union AIR 1978 (SC) 597 ref.

Mr. Mrinal Kanti Biswas, Advocate

. . . For the petitioners

Mr. Mahbubey Alam, Attorney General with
Ms. Kazi Zinat Hoque, Deputy Attorney General

.... For the respondent No.4

Writ Petition No. 2258 of 2009

JUDGMENT

J.B.M. Hassan, J:

By filing an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the petitioner obtained this Rule on the following terms:

“Let a Rule Nisi be issued calling upon the respondent Nos.1-7 to show cause as to why the provision of section 19(4) empowering the Judge, Artha Rin Adalat to set aside the ex-parte decree at once only on deposit of 10% money of the decretal dues without issuing a notice to the decree holder and without giving the decree-holder an opportunity to explain its/his position and without enquiring about the actual date of knowledge of the judgment-debtor about the decree should not be declared to be arbitrary, discriminatory, inconsistent with the principle of natural justice, and ultravires the provisions of the Constitution and why the impugned order dated 04.03.2009 passed in pursuance of that provision by the learned Judge of the Artha Rin Adalat No.3, Dhaka in Artha Rin Suit No.174 of 2006 should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Subsequently, on the basis of an application filed by the petitioner a supplementary Rule was issued on 06.06.2012 in the following manner:

“Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why the order No.30 dated 15.07.2008 allowing the Miscellaneous Case No. 668 of 2008 setting aside the ex-parte judgment and decree dated 05.03.2008 passed by the Artha Rin Adalat No.3, Dhaka in Artha Rin Suit No. 174 of 2006 should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Relevant facts necessary for disposal of the Rule are that the petitioner, Pubali Bank Limited, Principal Branch, 26, Dilkusha Commercial Area, Dhaka (shortly, the Bank) as plaintiff instituted Artha Rin Suit No. 174 of 2006 on 20.08.2006 before the Artha Rin Adalat No.3, Dhaka (shortly, the Adalat) against the respondent Nos. 3-7 for recovery of loan money amounting to Tk. 52.84,652.86. Summons were duly served upon the defendants in all manner as per provisions of law including paper publication. The defendant Nos. 1-3 and 5 appeared in the suit and filed written statements on 15.02.2007 and 12.03.2007 respectively. Subsequently, they did not pursue the suit and as a result the suit was decreed ex-parte on 05.03.2008 (decree signed on 10.03.2008). The Bank put the decree into execution on 22.05.2008 through Artha Jari Case No. 430 of 2008 in the Adalat for realization of Tk. 60,46,670.86 including interest and costs of the suit as per decree. Notices in the name of judgment-debtors were published in the daily news papers except the judgment-debtor No.5 who had already received the notice of execution case.

On 04.06.2008 the defendant No.4 filed Miscellaneous Case No. 668 of 2008 under section 19 of the Artha Rin Adalat Ain, 2003 (shortly, the Ain) for setting aside the ex-parte decree dated 05.03.2008 and also prayed for restoration of the suit to its original file and number stating, inter alia, that summons was not served upon this defendant and that this defendant was not aware about the suit as well as the decree; from the letter dated 13.05.2008 issued by the Food department, the defendant, for the first time, came to know about the suit as well as the decree; the defendant ascertained the fact of decree by an information slip obtained on 14.05.2008 and thereafter by depositing 10% of the decretal dues, the defendant filed the miscellaneous case.

Without issuing any notice upon the plaintiff (decree holder), the Adalat by order dated 15.07.2008 allowed the miscellaneous case setting aside the ex-parte decree dated 05.03.2008 and thereby restored the Artha Rin Suit No. 174 of 2006. On 31.08.2008 the defendant No.4 when served the copy of the written statement upon the plaintiff Bank, for the first time it came to know about the impugned order dated 15.07.2008 by which miscellaneous case was allowed and suit was restored to its original file and number.

On 18.11.2008 the Bank filed an application before the Adalat under section 57 of the Ain for recalling the order dated 15.07.2008 and that the said application was rejected on 04.03.2009.

In the aforesaid circumstances, the plaintiff-Bank filed this writ petition challenging the order dated 04.03.2009 as well as the vires of section 19(4) of the Ain and obtained the Rule. Subsequently, by a supplementary Rule the order dated 15.07.2008 setting aside the ex-parte decree has also been challenged.

Respondent No.4 has filed affidavit-in-opposition controverting the statements made in the writ petition. This respondent contends that there is no provision in section 19 of the Ain to serve notice upon the plaintiff-decree holder before setting aside the ex-parte decree; that as per requirement of section 19(3) of the Ain the defendant deposited 10% of the decretal dues and that the legal requirement having been complied with, the Adalat allowed the miscellaneous case as per sanction of section 19(4) of the Ain; that no summons was served upon the defendant No.4 and that being unaware about the suit, this defendant could not contest the suit and as a result the suit was decreed ex-parte; that the defendant No.4 could not know about the ex-parte decree in time and as a result the application for setting aside the decree was filed beyond 30 days of the ex-parte decree but as soon as the defendant came to know about the said decree, he filed this miscellaneous case within 30 days from date of his knowledge and therefore, the miscellaneous case being filed as per requirement of section 19(2) of the Ain, the Adalat allowed the miscellaneous case finding deposit of 10% of the decretal dues. Therefore, the Rule does not have any merit and as such, it is liable to be discharged.

Mr. Mrinal Kanti Biswas, the learned Advocate appearing for the writ petitioner (the Bank) submits that by passing the exparte decree, a legal right has been accrued in favour of the plaintiff but section 19(4) of the Ain empowers the Adalat to set aside the said ex-parte decree curtailing the legal right of the plaintiff without issuing any notice upon the decree holder (plaintiff) and only on deposit of 10% of the decretal dues. Therefore, the said provision is arbitrary, against the principle of natural justice and thus, ultravires the Constitution. He also submits that the application for setting aside the ex-parte decree was filed beyond 30 days of the decree. Therefore, the defendant was required to satisfy the Adalat about the date of knowledge as per requirement of section 19(2) of the Ain but without complying with the said provision of law, the Adalat allowed the miscellaneous case setting aside the ex-parte decree and as such the impugned order dated 15.07.2008 is liable to be declared to have been passed without lawful authority.

Mr. Mahbubey Alam, the learned Attorney General appearing for the respondent No.4 submits that the Artha Rin Adalat Ain is a special law enacted by the legislature for recovery of the loan money by a speedy trial and that to effect the object of law, section 19(4) of the Ain has been provided by the legislature to have an effectual adjudication by setting aside exparte decree directly in order to avoid delay and for expedite disposal of the suits and that the legislature has put an extra condition in this provision requiring the defendant (judgment-debtor) to deposit 10% of the decretal amount. Therefore, this section itself is not arbitrary. He further submits that when the judgment debtor deposits 10% of the decretal dues as per section 19(3) of the Ain, the Adalat applies the section 19(4) allowing the same setting aside the ex-parte decree and as such, it has no relation to the service of notice upon the plaintiff. However, the learned Attorney General frankly concedes that when the application for setting aside exparte decree is filed beyond 30 days of passing the decree by introducing the fact as to date of knowledge, the defendant is required to prove it by a fair procedure and the plaintiff deserves a notice in such adjudication like the provisions as provided in Order IX Rule 13 of the Code of Civil Procedure (the Code) for setting aside the ex-parte decree. Since section 19 has not provided any such provision to serve notice upon the plaintiff decree holder, this Court may suggest the legislature to provide such provision of service of notice to enable the plaintiff decree holder to know about the miscellaneous case. But for want of the provision as to non-service of notice, it can not be said that section 19(4) of the Ain contradicts the Constitution or it violates the principle of natural justice.

We have gone through the writ petition as well as annexed papers and affidavit-in-opposition filed by the respondent No. 4.

Admittedly, the Artha Rin Suit filed by the petitioner plaintiff was decreed ex-parte on 05.03.2008.

Section 19 of the Ain enunciates the provisions relating to ex-parte decree and also for setting aside the same. For our better understanding the said provisions are quoted herein below:

“১৯z (১) মামলার শুনানীর জন্য ধার্য কোন তারিখে বিবাদী আদালতে অনুপসিÛত থাকিলে, কিংবা মামলা শুনানীর জন্য গৃহীত হইবার পর ডাকিয়া বিবাদীকে উপসিÛত পাওয়া না গেলে, আদালত মামলা একতরফা সূত্রে নিস্পত্তি করিবে
(২) কোন মামলা একতরফা সূত্রে ডিত্র্রী হইলে, বিবাদী উক্ত একতরফা ডিত্র্রীর তারিখের অথবা উক্ত একতরফা ডিত্র্রী সম্পর্কে অবগত হইবার ৩০ (ত্রিশ) দিবসের মধ্যে, উপ-ধারা(৩) এর বিধান সাপেক্ষে, উক্ত একতরফা ডিত্র্রী রদের জন্য দরখাস¹ করিতে পারিবেনz
(৩) উপ-ধারা (২) এর বিধান অনুযায়ী দরখাস¹ দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস¹ দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা বাদীর দাবীর সেই পরিমানের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানতস্বরূপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিমেয় দলিল (Negotiable Instrument) আকারে জামানত হিসাবে আদালতে জমাদান করিতে হইবে
(৪) উপ-ধারা (৩) এর বিধানমতে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা জমাদানের সংগে সংগে দরখাস¹টি মঞ্জুর হইবে, একতরফা ডিত্র্রী রদ হইবে এবং মূল মামলা উহার পূর্বের নম্বর ও নথিতে পুনরুজ্জীবিত হইবে, এবং আদালত এ~ মর্মে একটি আদেশ লিপিবদ্ধ করিবে; এবং অতঃপর মামলাটি যে পর্যায়ে এক তরফা নিস্পত্তি হইয়াছিল, ঐ পর্যায়ের অব্যবহিত পূর্ববর্তী পর্যায় হইতে পরিচালিত হইবেz
(৫) বিবাদী উপ-ধারা (৩) বিধানমতে ডিত্র্রীকৃত অর্থের ১০% এর সমপরিমান টাকা বাদীর দাবীর সেই পরিমানের জন্য স্বীকৃতিস্বরূপ নগদ সংশ্লিষ্ট আর্থিক প্রতিষ্ঠানে, অথবা জামানতস্বরূপ ব্যাংক ড্রাফট, পে-অর্ডার বা অন্য কোন প্রকার নগদায়নযোগ্য বিনিমেয় দলিল (Negotiable Instrument) আকারে জামানত হিসাবে আদালতে জমাদান করিতে ব্যর্থ হইলে, উক্ত দরখাস¹টি সরাসরি খারিজ হইবে; এবং আদালত ঐ মর্মে একটি আদেশ লিপিবদ্ধ করিবে
(৬) অর্থ ঋন আদালতে বিচারাধীন কোন মামলা, বাদীর অনুপসিÛতির বা ব্যর্থতা হেতু খারিজ করা যাইবে না, এবং এইরূপ ক্ষেত্রে আদালত, নথিতে উপসÛাপিত কাগজাদি পরীক্ষা করিয়া গুনাগুন বিশ্লেষণে মামলা নিস্পত্তি করিবে” (underlined, emphasis supplied)

On perusal of the aforesaid provisions, it appears that in the absence of defendant, the Adalat can pass exparte decree under section 19(1) of the Ain and that the defendant can also file application under section 19(2) of the Ain to set aside the said exparte decree within 30 days, from the date of passing the said exparte decree or from the date of knowledge about the exparte decree. Moreover, the application has to be filed subject to provision of section 19(3) of the Ain, which requires the defendant to deposit 10% of the decretal dues, within 15 days after filing the aforesaid application. Therefore, it is clear that section 19(2) and 19(3) of the Ain are complementary to each other and has to be read together. As such, to file an application for setting aside exparte decree the required conditions as provided in both the provisions i.e. (sections 19(2) and 19(3) of the Ain), must be complied with. In other words, to file such application the defendant has to satisfy the Adalat about limitation period as per requirement of section 19(2) of the Ain and he is also required to comply with the provision of section 19(3) of the Ain i.e. deposit of 10% of the decretal dues (উপধারা (২) এর বিধান অনুযায়ী দরখাস¹ দাখিলের ক্ষেত্রে বিবাদীকে উক্ত দরখাস¹ দাখিলের তারিখের পরবর্তী ১৫ (পনের) দিবসের মধ্যে ডিত্র্রীকৃত অর্থের ১০% এর| সমপরিমান টাকা -----আদালতে জমাদান করিতে হইবে) and that the Adalat has no scope to consider such application if any of the aforesaid conditions is left in filing the application.

Section 19(4) of the Ain, though empowers the Adalat to allow the application instantly if the condition provided in section 19(3) of the Ain as to deposit of 10% of the decretal dues is complied with but that application has to be filed within the limitation period as provided under section 19(2) of the Ain and subject to section 19(3) of the Ain. Thus, section 19(4) of the Ain comes into operation if the application is filed in compliance with both the conditions as prescribed in sections 19(2) and 19(3) of the Ain i.e limitation period and deposit of 10% of the decretal dues.

According to section 19(2) of the Ain the limitation period to file such application has been prescribed in two ways i.e either 30 days from the date of passing exparte decree or 30 days from the date of knowledge about the exparte decree.

As statutory right under section 19(2) of the Ain, the defendant can file the application to set aside exparte decree within 30 days from the date of said decree and the Adalat can satisfy itself by reckoning the days about the said limitation period. Thus, when the application is filed within 30 days by depositing 10% of the decretal dues, in such circumstances, the Adalat can directly allow the application under section 19(4) of the Ain. Yet, as soon as an order is made setting aside exparte decree, the Adalat shall cause a notice thereof to be served upon the plaintiff at the cost of the defendant so that the revived suit does not proceed unrepresented.

Under section 19(2) of the Ain, the defendant can also file application for setting aside exparte decree within 30 days from the date of knowledge (অবগত হইবার ৩০ দিবসের মধ্যে) about the said decree. But, to exercise such statutory right, the defendant introduces a particular fact as to date of his knowledge about the exparte decree. Question arises, whether in such circumstances, the Adalat can allow the application directly on deposit of 10% of the decretal dues.

As this right of the defendant is subject to a limitation period of 30 days from the date of his knowledge about the said decree, therefore, it is to be exercised subject to proof about the date of knowledge. Moreover, on pronouncement of exparte decree a legal right has been accrued in favour of the plaintiff (decree holder) and allowing of an application for setting aside the said decree, is curtailing the accrued right of the decree-holder (plaintiff) and as such, natural justice demands that decree holder (plaintiff) should be heard in disposing of the said application so as to fair adjudication of the fact about the correctness of the date of knowledge as alleged by the defendant.

Though, section 19(2) of the Ain does not expressly prescribe for issuance of any notice upon the decree-holder plaintiff to show cause in determining the correctness of the date of knowledge but it is the established principle of law that even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character and to lay this principle the leading cases are Abul A’la Moudoodi Vs. West Pakistan reported in 17 DLR (SC) 209 and the case of Maneka Gandhi Vs. Union of India reported in AIR 1978 (SC) 597.

The ratio decidendi as laid down in the aforementioned cases has been reflected in the case of Jobon Nahar and others Vs. Bangladesh, through the Secretary, Ministry of Housing and Public Works Department, Government of the People’s Republic of Bangladesh and others reported in 49 DLR (HCD) 108 wherein their Lordships held as under:

“The principle of natural justice not only applies to Courts but, nowadays more and more it is being applied to administrative process to ensure procedural fairness. In many occasions it has been held by this Court that violation of the principle results in jurisdictional error. The principle of natural justice now extends to any person or body deciding matters affecting the rights and interests of an individual. Following some English decisions, the Courts of this sub-continent have held that the principle of natural justice should be read to have been incorporated in every statute unless it is excluded expressly or by necessary implication by statute. (Abul Ala Moudoodi Vs. West Pakistan 17 DLR (SC) 209)”. (underlined, emphasis supplied)

Therefore, when an application for setting aside the ex-parte decree is filed beyond 30 days from the date of passing the decree and the defendant alleges that he has come within 30 days from the date of his knowledge within the purview of section 19(2) of the Ain, in such situation, the plaintiff has got a right to be informed about hearing of the said application by proper notice and the Adalat on hearing both the parties, shall decide the issue as to correctness of the defendant’s alleged date of knowledge in order to satisfy itself towards compliance of the section 19(2) of the Ain. Thus, in addition to compliance of section 19(3) by depositing 10% of the decretal dues the defendant shall have to satisfy the Adalat that the application has been filed within the limitation period inasmuch as filing of an application under section 19(2) of the Ain is subject to compliance of limitation and the section 19(3) of the Ain. Therefore, on receipt of an application in pursuance of section 19(2) of the Ain, if the Adalat is satisfied that both the conditions of section 19(2) and 19(3) of the Ain, is complied with, it shall allow the said application as per section 19(4) of the Ain.

Section-19(4) of the Ain provides that on deposit of 10% of the decretal dues the Adalat shall allow the application setting aside the ex-parte decree and the suit shall be restored to its previous file and number. But before that the defendant has to satisfy the Adalat about requirement of section 19(2) of the Ain in the manner as discussed above i.e. whether the defendant filed the application within the limitation period has to be proved and that since section 19(2) of the Ain is subject to section 19(3) of the Ain, therefore, requirement of deposit of 10% of the decretal dues under section 19(3) of the Ain shall also have to be complied with before deciding the limitation period. Thus, it is apparent that unless both the requirements of section 19(2) and 19(3) of the Ain are complied with, the Adalat has no scope to allow the application under section 19(4) of the Ain setting-aside the exparte decree even if the defendant deposits 10% of the decretal dues.

In view of above discussions as well as the legal position, we are led to hold that section 19(4) of the Ain is mere a operating provision prescribed by the legislature to allow the application for setting aside the exparte decree and to restore the suit to its previous file and number but the said application has to be filed in compliance with the sections 19(2) and 19(3) of the Ain. Therefore, to apply section 19(4) of the Ain, the Adalat has to be satisfied that the application has been filed properly within the limitation period as prescribed in section 19(2) of the Ain and also in compliance with section 19(3) of the Ain (deposit of 10% of the decretal dues) and that in determining such limitation period particularly the correctness of the date of knowledge as per requirement of section 19(2) of the Ain, notice has to be served upon the plaintiff. This requirement as to service of notice is silent in section 19(2) of the Ain and not in section 19(4) of the Ain. In view of legal position, we are not inclined to interfere with the provision of section 19(4) of the Ain because, such interference shall, rather, frustrate the purpose of section 19 of the Ain as a whole to restore a suit decreed exparte to its previous file and number. However, respondent No.1 shall take steps to remove such ambiguity by making necessary amendment of section 19 of the Ain relating to service of notice upon the plaintiff in the light of the observations as made in the body of this judgment. Therefore, the Rule so far as it relates to the vires of section 19(4) of the Ain does not call for any interference.

In the present case ex-parte decree was passed on 05.03.2008. Section 19(2) of the Ain requires the defendant to file an application for setting aside exparte decree either within 30 days from the date of passing of the said decree or within 30 days from the date of knowledge about the said exparte decree. Admittedly, here in this case the defendant filed the miscellaneous case on 04.06.2008 i.e. beyond 30 days of passing the ex-parte decree and the defendant claims that the miscellaneous case has been filed within 30 days from the date of its knowledge. To establish such claim as to date of knowledge, the defendant has introduced the fact that the defendant was not aware about the ex-parte decree and for the first time it came to know about the said decree on 13.05.2008 and from the said date of knowledge within 30 days the defendant filed the miscellaneous case (application) for setting aside the exparte decree as per sanction of second part of section 19(2) of the Ain. Since the defendant claims that the application has been filed within 30 days from the date of knowledge, therefore, the Adalat has to be satisfied about the said date of knowledge by a proper and fair adjudication, giving an opportunity of being heard to both the plaintiff and the defendant so as to determine the correctness/genuineness of alleged date of knowledge.

But from the impugned order dated 15.07.2008, it appears that without being satisfied about correctness/genuineness of the alleged date of knowledge, the Adalat allowed the miscellaneous case finding deposit of 10% of the decretal dues which is one of the requirements to file and consider the application for setting aside the ex-parte decree as per section 19 of the Ain inasmuch as, unless the other requirement as to limitation under section 19(2) of the Ain is complied with, the Adalat has no scope to allow the said application, irrespective of the fact that the defendant deposited 10% of the decretal dues.

In view of the above discussions, we have no hesitation to hold that the Adalat passed the impugned order dated 15.07.2008 without satisfying itself as to requirement of section 19(2) of the Ain and as such, it warrants interference of this Court. Thus, we find merit in part of the Rule.
By the order dated 04.03.2009 passed in Artha Rin Suit No. 174 of 2006, the Adalat rejected petitioner’s misconceived application on point of maintainability as it was filed under section 57 of the Ain for setting aside the order dated 15.07.2008. This order dated 04.03.2009 being rejected on maintainability, has no effect over the main issue of this Rule and as such, it is not necessary to give any decision on this issue.

In the result, the Rule is made absolute in part without any order as to costs. The impugned order dated 15.07.2008 passed by the Artha Rin Adalat No.3, Dhaka in Miscellaneous Case No. 668 of 2008 is hereby declared to have been passed without lawful authority and is of no legal effect. The Adalat is directed to dispose of the Miscellaneous Case No. 668 of 2008 in the light of the observation as made above.

Communicate the judgment and order to the respondent Nos. 1 and 2 expeditiously for taking necessary steps as per observations of the judgment.

Ed.

Pubali Bank Ltd. Vs. Abdul Jalil Bhuiyan, 53 DLR (2001) 217

Case No: Civil Revision No. 4338 of 1997

Judge: Gour Gopal Saha,

Court: High Court Division,,

Advocate: MA Tariq,,

Citation: 53 DLR (2001) 217

Case Year: 2001

Appellant: Pubali Bank Ltd.

Respondent: Abdul Jalil Bhuiyan

Subject: Civil Law,

Delivery Date: 2000-11-15

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Gour Gopal Saha J
Sikder Maqbul Huq J

Pubali Bank Ltd.
………………Petitioner
Vs.
Abdul Jalil Bhuiyan
…….………. Opposite Party

Judgment
November 15, 2000.

Code of Civil Procedure (V of 1908)
Sections 115 & 151
Whenever a party is aggrieved due to the fault of the court occasioning failure of justice, this court is not only competent to undo the wrong done to a party but also it is imperative in the interest of justice to do so.

Case Referred To-
Kazi Gowherul Islam Vs. Standard Co-operative Society Limited and another 50 DLR 333.

Lawyers Involved:
MA Tariq, Advocate — For the Petitioner
Not represented—the Opposite Party.

Civil Revision No.4338 of 1997.

JUDGMENT

Gour Gopal Saha J.

1. This Rule is directed against the order dated 18-9-97 passed by the Subordinate Judge and Artha Rin Adalat, 2nd Court Madaripur in Money Execution Case No.25 of 1994 waiving 60% of the interest and allowing payment of the balance of the decretal dues by instilments.

2. Short facts relevant for the purpose of the Case are that, the petitioner Bank as plaintiff instituted a suit in the court of the Artha Rin Adalat and Subordinate Judge, 2nd Court Madaripur being Money Suit No. 83 of 1991, for realisation of an amount of Taka 13,23,315.09 as outstanding dues as on 28-3-91. During the pendency of the suit the defendant paid the plaintiff Bank an amount of Taka 4,00,000.00 in respect of the claims of the Bank. Eventually the defendant opposite party did not appear before the Artha Rin Adalat to contest the suit. The suit was ultimately decreed ex-parte on 23-3-93 for an amount of Taka 9,23,315.09 as on 28-3-91, with interest on the decretal amount at the rate of 16% per annum, Subsequently, the petitioner-decree holder levied Money Execution Case No.25 of 1994 in the court of the Subordinate Judge, 2nd Court and Artha Rin Adalat, Madaripur for realisation of the decretal dues along with the accrued interest thereon till realisation. It is found that the judgment debtor opposite party in all paid an amount of Taka 9,000.00 to the plaintiff bank against the decretal amount.

3. The learned execution court by its order dated 15-10-96 directed the judgment debtor opposite party to deposit the balance of the outstanding decretal dues by 12 equal monthly instilments of Taka 76,943.00 each but the opposite party failed to comply with the order of the court. Thereafter the judgment debtor opposite party prayed for extension of time for satisfying the decretal dues. Thereupon the learned Execution Court by order dated 10-4-97 directed the judgment debtor opposite party to pay the balance of the decretal dues amounting to Taka 8,33,315.09 in 7 equal monthly instilments of Taka 1,19,045.09 each. Subsequently, the learned execution court by order dated 18-9-97 modified the aforesaid order dated 10-4-97 and suo motu exempted 60% of the interest on ‘the principal amount to be paid by 6 equal instilments.

4. Being aggrieved by the aforesaid impugned order dated 18-9-99 passed by the learned execution court, the decree holder plaintiff bank moved this court and obtained the present Rule.

5. Mr. MA Tariq, the learned Advocate appearing for the petitioner, submits that the learned execution court evidently erred in law going beyond the decree by exempting 60% of the interest on the principal amount and by granting instilments much beyond the prescribed time and the same has occasioned failure of justice.

6. No one appears to oppose the Rule.

7. The learned Advocate appearing for the petitioner has placed before us the impugned order and the relevant provisions of the Artha Rin Adalat Rin, 1990. In the facts of the case, we clearly find that the learned execution Court went beyond the decree by exempting 60% of the interest payable on the principal amount. We also find that the Learned Execution Court, clearly violated the provision of the Artha Rin Adalat by giving time to the judgment debtor for satisfaction of the decretal dues by installments extending over a period of one year. We are, therefore satisfied that the learned execution court, acted illegally and without jurisdiction in passing the impugned order occasioning failure of justice.

8. We are not unmindful of the consistent view held by this Court that an application under section 115(i) of the Code of Civil Procedure is not maintainable against any order passed by the Artha Rin Adalat. But in view of the fact that the learned Execution Court acted illegally and without jurisdiction in passing the impugned order, occasioning a grave failure of justice this Court is competent to give the deserved relief to the aggrieved party in the interest of justice in exercise of the its inherent power for preventing an abuse of the process of the Court and for securing the ends of justice. We get instant support of this view in the case of Kazi Gowherul Islam Vs. Standard Co-operative Society Limited and another reported in 50 DLR 333.

9. Section 151 of the Code of Civil Procedure provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such order as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Whenever a party is aggrieved due to the fault of the Court occasioning failure of justice, this Court is not only competent to undo the wrong done to a party but also it is imperative in the interest of justice to do so. In view of the fact that the impugned order is found to be patently illegal and wit jurisdiction, causing serious prejudice to the petitioner, we think, this is a fit case in which we should exercise the inherent power of the court under section 151 of the Code of Civil Procedure for preventing an abuse of the process of the court and an apparent injustice.

10. In the result the Rule is made absolute without any order as to costs and the impugned order dated 18-9-97 passed by the learned Subordinate Judge and Artha Rin Adalat, 2nd Court, Madaripur in Money Execution Case No. 25 of is set aside.

11. The order staying all further proceedings of money executing Case No.25 of 1994 pending before the Artha Rin Adalat and Sub ordinate Judge, Madaripur earlier granted by this Court stands vacated.

12. The learned Subordinate Judge and execution Court Madaripur is hereby directed to dispose of the execution Case with utmost expediency.

Communicate the order of the court to the learned execution court at once.

Ed.

Pubali Bank Ltd. Vs. Bangladesh

Case No: Civil Review Petition No. 9 of 2006.

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Khan Saifur Rahman,,

Citation: V ADC (2008) 112

Case Year: 2008

Appellant: Pubali Bank Ltd.

Respondent: Bangladesh

Subject: Property Law,

Delivery Date: 2006-11-29

Pubali Bank Ltd. Vs. Bangladesh
V ADC (2008) 112

Supreme Court
Appellate Division
(Civil)

Present
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Pubali Bank Ltd. Head Office, 26 Di1kusha Commercial Area Dhaka…….Petitioner
Vs.
The Government of the Peoples Republic of Bangladesh, represented by the Secretary, Ministry of Commerce, Secretariat Building, Ramna, Dhaka & Others………Respondent

Judgment
November 29, 2006.

We have heard the learned Counsel for the petitioner. On perusal of the petition filed seeking review of the judgment as mentioned hereinbefore it is seen that the same has not been filed on the ground that there is apparent mistake in the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact which could not be placed before the Court at the time of hearing of the appeal inspite of best effort. In that view of the matter we find that there is no merit in the petition filed seeking review of the judgment of this Court in the aforementioned appeal. The learned Counsel submitted that as a case is pending before the High Court Division relating to the property in question between the parties in the review petition and as such the petition for review may be kept pending till disposal of the case before the High Court Division since that would resolve the dispute between the parties once for all. The submission so made is of no merit since as it appears in the background of the submission made by the learned Counsel the issue involved in the case before the High Court Division for adjudication is quite different and distinct from the issue as was in the writ petition and thereafter in the appeal judgment whereof is sought to be reviewed. …. (5)

Lawyers Involved:
Khan Saifur Rahman, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Review Petition No. 9 of 2006.
(From the Judgment and Order dated August 1, 2005 passed by the Appellate Division in Civil Appeal No.85 of 1997).

Judgment

Md. Ruhul Amin J. - This petition has been filed seeking review of the judgment dated August 1, 2005 passed in Civil Appeal No.85 of 1997 dismissing the same. The appeal was filed against the judgment dated April 10, 1997 of the High Court Division in Writ Petition No.3396 of 1991 discharging the Rule obtained therein. The writ petition was filed challenging the legality of the Memo. No. 1221 (5) J, M, 60 dated 14.12.1991 of the Office of District Magistrate, Chittagong issued under the signature of the Magistrate, 1st Class, Sadar, Chittagong addressed to the Deputy Police Commissioner, Sadar Head Quarter, CMP Chittagong requesting him for placing police personnel for eviction of the appellant, herein petitioner, from the property of M/S. Lazaf Commercial Corporation Ltd. at 40, Shaheed Saifudding Khaled Road, Chittagong.

2. The property in question was taken over by the Government as abandoned property. The petitioner accepting the property in question as an abandoned property applied to the abandoned property authority for lease of part of the property in question and the abandoned property authority leased out the property (part) in question to the petitioner herein. The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned property. The abandoned property authority while in compliance of the judgment passed declaring the property not an abandoned property took step for handing over possession thereof upon evicting the lessee of the abandoned property authority the petitioner challenged the action of the abandoned property authority taken for evicting him (petitioner) from the property in question. The petitioner challenged the action of the abandoned property authority before the High Court Division in writ jurisdiction but without any success.

3. As against the judgment of the High Court Division the petitioner filed appeal. This Court dismissed the appeal upon observing "In the background of the materials on record the undenied position is that the property in question i.e. the property possessed by the appellant and the other properties of the Respondent No.3 at one point of time although was taken over as abandoned property and managed by the abandoned property authority by allotting the same to the different organizations and person(s) including the appellant but the action of the abandoned property authority having been challenged by the Respondent No.3 and another it has been declared that the properties of the Respondent No.3 are not abandoned property and thereupon direction was made to release the property from the list of abandoned property. As such the moment it was held that the properties of the Respondent No.3 are not abandoned property, the abandoned property authority under the law is duty bound to return the property to the claimant upon removing the encumbrance created by it i.e. upon taking over possession from m€ person to whom the abandoned property authority allotted the property of the Respondent No.3 while managing the same as abandoned property and that in performance of the said legal duty the step taken by the abandoned property authority reflected in Annexure-D to the writ petition i.e. Memo, of the office of the Deputy Commissioner, Chittagong dated 14.12.1991 has quite correctly been held legal by the High Court Division.
4. The appellant's claim to retain possession as mortgagee is not legally sustainable since the mortgage as claimed by the appellant is an equitable mortgage.

The admitted position is that at one time the bank, as claimed by it, went into possession of the property in question, of which it was not in possession as mortgagee, to save the same from being damaged keeping in view its interest therein as mortgagee. In the background of the nature of the mortgage, i.e. equitable mortgage, when the property was taken over by the abandoned property authority the appellant stepped down from its previous position and approached the abandoned property authority to allot the property in question to it and on the basis of such allotment the appellant was possessing the property in question, but the moment the property has been declared as not abandoned property and thereupon while it became legal obligation and duty on the part of the abandoned property authority to restore possession of the property to the claimant of the property and that steps having been taken as in Annexure-D for discharging the said obligation and duty, the same cannot be considered to have been taken without jurisdiction or that the steps taken should not have been the one but there should have been different one because of the fact stated hereinbefore. The action as has been initiated by the abandoned property authority being for restoration of possession of the property which was taken over as abandoned property but later on declared by the Court not abandoned property to the authoritatively declared claimant/owner; the action of the Respondent Nos. 1 and 2 is quite legal and lawful. The contention of the appellant that the Respondent No.3 owes huge dues to the bank is not material in the context of the matter involved in the case brought by the appellant before the Court and that the question of taking loan by the Respondent No. 3 and the liability thereof, if any, to the Bank are extraneous matter in the context of the subject matter of the writ petition out of which the appeal has arisen and as such is not an issue for determination in the writ petition. The only issue before the Court is whether the step taken for restoration of possession, as in Annexure-D to the writ petition, i.e. the impugned annexure, is legal or not. As regard the liability, if any, in connection with the mortgage, claimed by the appellant the same would be matter for decision in some other forum but not in writ jurisdiction. As such bank is not legally entitled to retain possession of the property of the Respondent No. 3 on the said ground i.e. Respondent No.3 owes to the bank in connection with the mortgage since in the case of the kind of mortgage as claimed by the appellant the mortgagee is not supposed to be in occupation of the mortgagor’s property.

5. We have heard the learned Counsel for the petitioner. On perusal of the petition filed seeking review of the judgment as mentioned hereinbefore it is seen that the same has not been filed on the ground that there is apparent mistake in the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact which could not be placed before the Court at the time of hearing of the appeal inspite of best effort. In that view of the matter we find that there is no merit in the petition filed seeking review of the judgment of this Court in the aforementioned appeal. The learned Counsel submitted that as a case is pending before the High Court Division relating to the property in question between the parties in the review petition and as such the petition for review may be kept pending till disposal of the case before the High Court Division since that would resolve the dispute between the parties once for all. The submission so made is of no merit since as it appears in the background of the submission made by the learned Counsel the issue involved in the case before the High Court Division for adjudication is quite different and distinct from the issue as was in the writ petition and thereafter in the appeal judgment whereof is sought to be reviewed. It further appears that the judgment sought to be reviewed has hardly any bearing on the subject matter of the case as stated by the learned Counsel of the petitioner pending before the High Court Division.
In the background of the discussions made hereinbefore we find no substance in the petition.
Accordingly the petition is dismissed.
Ed.

Pubali Bank Ltd. Vs. M/S. Amin Iqbal Corporation and others, 1 LNJ (2012) 455

Case No: First Appeal No. 219 of 1996

Judge: Khondker Musa Khaled,

Court: High Court Division,,

Advocate: Mr. Zakir Hossain Mazumder,,

Citation: 1 LNJ (2012) 455

Case Year: 2012

Appellant: Pubali Bank Ltd.

Respondent: M/S. Amin Iqbal Corporation and others

Subject: Artha Rin,

Delivery Date: 2012-05-22

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)

Khondker Musa Khaled, J.
And
S.H. Md. Nurul Huda Jaigirdar, J.

Judgment
22.5.2012

Pubali Bank Ltd, Agarabad, Chittagong

...Appellants.

Vs.

M/S. Amin Iqbal Corporation and others

...Opposite parties

Artha Rin Adalat Ain (VII of 2003)
Sections 18(2), 47 and 50(2)
Code of Civil Procedure (V of 1908)
Section 9
In view of the overwhelming evidence regarding the arrival of the goods and after releasing the same kept in the Bank’s godown for 9 years had to sell the same in public auction and Bank informed his client regularly in each stage, it can not be accepted the contention that the defendants were not aware of all these things. The plaint of other Suit No. 2 of 1994 shows that the defendants set up a counter claim of more than Taka Fifty Lac and some odds. Apparently nature of claims were baseless and there is hardly any foundation in the evidence as well. The defendants’ suit of compensation and damages as set up in other Suit No. 2 of 94 has got no merit. The learned Judge of the Artha Rin Adalat has no jurisdiction to entertain other Suit No. 2 of 1994 under general law along with the Money Suit filed by the financial institution under the Special law. Under the Artha Rin Adalat Ain, 2003, Section 18 (2) also stands as a clear bar to entertain any suit or counter claim against the claim of the financial institution. The learned Judge of the Artha Rin Adalat assumed illegal jurisdiction over the said other suit and held the trial of the civil suit without having any jurisdiction. Keeping consistency with the section 50(2) of the Artha Rin Adalat, 2003 simple interest was awarded at the rate of 12% per annum on the principal amount from the date of filing the suit till realization subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003 meaning thereby the simple interest payable shall not exceed 200% of the original claim.

The plaint of the Other Suit no. 2 of 1994 shows that the   defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the business and damages for a period of 15 years. Apparently the nature of claims were baseless and there is hardly any foundation in the evidence as well.   But unfortunately, the learned Judge of the trial court accepted the contentions of the defendants in an arbitrary manner and decreed their suit in part awarding compensation for on amount of Tk. 15,00,000/-,>0ur considered view is that the defendants' suit for compensation and damages as set up in Other Suit no. 2 of 94 has no merit to succeed.… (15).

Apart from the merit of the suit,   the learned Judge of the Artha Rin Adalat has no jurisdiction to entertain Other Suit no. 2 of 94 and give hearing of the said suit under general law alongwith the Money Suit filed by the financial institution under the special law. It is legally barred and he cannot hold trial of any other suit of the Civil Court unless it is filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. ... (16)

Under the existing Artha Rin Addalat Ain 2003 section 18 (2) also stands as a clear bar to entertain any suit Or counter cliam against the claim of the financial institution. .... (16)

It transpires from the L.C.Rs. that the other suit No. 25 of 1992 was filed before the 2nd court subordinate judge, Chittagong under the general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction.    .... (17)

Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim.... (20)

Sultana Jute Mills Ltd. and others -Vs- Agrani Bank and others 14 BLD(AD)- 196, 22 BLD(HCD)-127, ref.

Mr. Zakir Hossain Mazumder, Advocate.

... For the appellant

None appears

... For Respondent

First Appeal No. 219 of 1996

Judgment

Khondker Musa Khaled, J:

           This First Appeal is directed against a common judgment and decree dated 18.5.96 passed by the learned Subordinate Judge (now Joint District Judge) Artha Rin Adalat, and Commercial Court No. l, Chittagong, in Money Suit no. 181 of 1988 filed by   Pubali Bank Ltd. against the M/S. Amin Iqbal Corporation and others for realization of Tk. 15,77,113.50 and Other Suit no. 2 of 1994 filed by M/S Amin Iqbal Corporation against the Pubali Bank Ltd. for a counter claim of Tk. 57,08,529.17 over the same dispute, which were heard analogous.

2.         Precisely, the relevant facts are that the Pubali Bank Ltd. instituted the Money Suit no. 181 of 1988 alleging in the plaint that the defendant No. 1/S. Amin   Iqbal Corporation was Proprietary firm dealing with Sewing Machine and the defendants 2-3 used to carry on business through it, and they maintained a current account in the name of defendant No. l with the plaintiff-Bank. The defendant No. 3 being operator of the account, approached the Bank for opening Letters of Credit (L.C.) to import 457 packages of household Sewing Machine from Taiwan. Accordingly, the plaintiff-Bank, opened two Letters of Credit on 16.4.75 and 1.12.75 in the name of the defendant No. l M/S. Amin Iqbal Corporation    for the amounts of #3,672.30 and #2,849.25 British Pound respectively. The documents were executed by the defendant no.3 in the name of defendant No. l. The   imported   goods covered   by the Letters of Credit duly arrived at the Chittagong Port. On receipt of the shipping documents,   the plaintiff-Bank requested the defendant to retire the same on payment of the plaintiffs dues. But they did not respond. Subsequently, the defendants requested the plaintiff-Bank to retire the documents and clear the imported goods through its own clearing and forwarding agent. Thereafter, the plaintiff-Bank had to clear those goods on payment of necessary custom duty and other charges, and stored those imported items in the godown of the plaintiffs Bank. Against the expenditure on account of sales, tax, duties and other charges for clearance of the goods, the plaintiff opened two merchandise accounts namely, L.A.M account no. 21 of 1976 and 28 of 1976. Then it became obligatory on the part of the defendants to take delivery of the goods on payment of the outstanding dues in the said L.A.M. accounts. But inspite of repeated requests by personal approach and in writing, they failed to take delivery of those goods from the godown and adjust their liabilities. Since the value of the goods was deteriorate-ing due to prolonged storage, the plaintiff Bank had to sell out those goods by public auction after observing necessary formalities for a total sum of Tk. 2,80,000,/ and credited the same in the respective L.A.M. accounts towards partial adjustment of the defendants' liabilities in accordance with Rules. Thereafter, the plaintiff-Bank started demanding the balance amount from the defendants and issued lawyer's notice demanding payment. On receipt of the notice, although the defendants made promise from time to time to adjust the liabilities, ultimately they did not pay any amount of money to the Bank. The defendants' total liabilities stood at Tk. 15,77,113.50 as calculated on 30.11.88 together with interest and incidental charges. At last on 16.8.87, the defendants were served with legal notice for payment, and on 5.12.88 an F.D.R. of the Defendant No. 2 available in the Bank was adjusted in the L.A.M. account no. 21 of 1976. The plaintiff -Bank thereafter, filed the suit for the realisation of remain-ing balance amounting to Tk. 15,77,113.50 and also prayed for penal interest thereon   at the rate of 20% per annum from the date of filing the suit till realisation along with the cost of the suit.

3.         The defendants 1-3 contested the suit by filing a written statement admitting that the defendant No. l was a Small industrial enterprise while the defendants 2-3 were its owner and Managing Director respectively. It is contented interalia that the defendant No. 2 being entrusted to operate the business of the defendant No. l, opened a current account bearing no. 2683 and subsequently opened two Letter of Credits   for 3,672.30 and 2,849.25 British pound for the purpose of importing goods from Taiwan and that the shipping documents and though the imported goods duly reached, the defendants were not informed anything about the same. That the defendant No. 3 went to the Pubali Bank to get information about the consignment under the L.Cs, but the Bank maintained silence. The defendant No. 3 came to know that the two ships carrying those imported goods had already left the Chittagong Port and as such., he wrote letters including the letters dated 15.3.76 and 28.6.76 to the Bank to get the goods released, but the Bank did not make any reply. It is contended further that Mr. Bose an employee of the Bank misbehaved with him when he approached to the Bank personally. Subsequently, the defendants approached to the Bank to open another Letter of Credit for the years 1976-1977 to run the business, but the Bank refused and did not even return the import license of the defendants preventing them from operating their business by opening Letter of Credit in another Bank. The plaintiff at first sent a letter dated 6.11.86 to the defendants informing about the import consignment, auction sale of the goods and claimed an amount of Tk. 4,71,156.60. The defendants came to know that the imported goods were sold by the Bank on auction on 18.9.84. As the plaintiff-Bank failed to make any amicable settlement of the dispute on 22.7.91, the defendants instituted the Other Suit No. 25 of 1992(subsequently renumbered as Other Suit no. 2 of 1994) for a declaratory decree and compensation of Tk. 5,08,529.17 on different counts. So the suit of the plaintiff- Bank is liable to be dismissed.

4.         The defendants 1-3 of the previously filed Money Suit also instituted Other Suit no. 25 of 1992 subsequently renumbered as Other Suit No. 2 of 1994 against the Pubali Bank for getting compensation of Tk. 57, 8,529.17 as a counter claimed as evident from the written statement filed in Money Suit no. 181 of 1988. The defendants being plaintiffs in the Money Suit also filed written statement in that Other Suit denying the plaint case and narrating the same facts of their plaint as stated above. So, we do not feel it necessary to state elaborate same facts   of the written Statement and plaint of the subsequent suit to avoid repetition.

5.         The trial Court appears to have framed the following issues for adjudication of both the suits:-

(1)        Are the suits of the plaintiffs maintainable in the represent form?
(2)        Whether the plaintiffs have cause of action for filing the suits?
(3)        Are the plaintiffs of the respective suits entitled to get decree?
(4)        To what the relief are the plaintiffs entitled?

6.         At the trial, the plaintiff -Bank examined 2 P.Ws. and the defendants M/S. Amin Iqbal Corporation and others examined 1 D.W., and series of documents submitted by the both the parties were admitted in evidence with exhibit marks.

7.         Considering the facts, circumstances and evidence on the record, the learned Subordinate Judge, First Court, Artha Rin Adalat, Chittagong passed the impugned analogous judgment and decree dated 18.5.96 dismissing the Money Suit no. 181 of 1988 without cost and decreed Other Suit no. 2 of 92 with costs directing the defendant Pubali Bank to pay Tk. 15,00,000(fifteen lac) to the plaintiff M/S. Amin Iqbal Corporation and others as compensation within 6 months.

8.         Being aggrieved, the Pubali Bank (plaintiff in the Money Suit and the defendant in the Other Suit) preferred this appeal.

9.         Mr. Zakir Hossain Mazumdar, learned Advocate appearing on behalf of the appellant-Bank, submits that the trial Court being Artha Rin Adalat had no jurisdiction to entertain Other Suit no. 2 of 1994 filed in the Court of Subordinate Judge and hold trial of the same together with the suit filed by the financial institution. Because a case pending in the Artha Rin Adalat under the special law cannot be heard analogous with a suit pending in any Court created by the general law. In support of his submission , the learned Advocate has relied upon the case of Sultana Jute Mills Ltd. and others -Vs- Agrani Bank and others reported in 14 BLD(AD)- 196 and another case decision reported in 22 BLD(HCD)-127. He submits that both the cited cases are related to Artha Rin Adalat Ain, 1990 under which the instant case of the Bank was dealt with at the earlier stage. It is further submitted that there is also specific bar under section 18(2) of the existing Artha Rin Adalat Ain, 2003 to try a suit instituted under the general law by the Artha Rin Adalat. So, the trial Judge, according to him, exercised jurisdiction not vested on it by the law and the impugned judgment and decree so far it relates to Other Suit no. 2 of 94 is illegal, void and without jurisdiction and as such, it is liable to be set aside.

10.       As regards the judgment and decree dismissing Money Suit no. 181 of 1988, the learned Advocate submits that the trial Court did not consider series of exhibited documents submitted by the Bank and as such, erroneously found that the defendants were not informed about the consignment and that the suit was barred by limitation. That the plaint has clearly disclosed cause of action for filing of the suit from which limitation should run. The learned Advocate has referred to the Exhibit-l(Ga) to show that on 6.11.86 an elaborate letter was issued by the Bank to the plaintiff about the consignment asking to clear dues of L.A.M. accounts with reference to the defendants’ letter dated 26.1.86 (Exhibit-5(Gha). It is submitted   that so many correspondences were made with the defendants regarding the matter and as such, it is down right falsehood to say that the defendants were totally in the dark about the release of imported goods by the Bank. Rather on the request of the defendants, the Bank had to clear the goods on payment of custom duty, tax and other charges, and store the same in the godown for a long time. But the defendants, having full knowledge, did not come to release the goods on payment of dues payable to the Bank. As a result, those goods were sold in public auction to the highest bidder and after partial adjustment of the dues by the sale proceeds and F.D.R. money of the defendant No. 2; the Bank lawfully filed the suit for realisation of the remaining balance. It is submitted that there is no earthly reason to refuse the genuine claim of the Bank and dismiss the Money Suit. The learned Advocate has relied on the Bank statement (Exhibit-4) to prove the outstay-nding dues and preyed for decree in Money Suit on setting aside the judgment of dismissal. He has also prayed for setting aside the judgment and decree so far it relates to Other Suit no. 2 of 1994.

11.       None appeared on behalf of the respondents on several dates when hearing was going on.

12.       We have gone through the impugned judgment, oral and   documentary   evidence      available   on   record   and considered other attending; facts and circumstances of this case.

13.       Admittedly, the defendants opened two Letter of Credits (L.C.) in the Pubali Bank on 16.4.75 and 1.12.75 in the name of the defendant No. l for importing 457 packages of household Sewing Machine components from Taiwan, and those goods arrived at the Chittagong port in due time by two different ships. It appears that the plaintiff –Bank thereafter issued series of letters of addressing the defendants on various dates ranging from 1976 to 1987, which are in Exhibits-1,2 and 5 series. Those documents show that the Pubali Bank requested the defendants to retire the L.C. documents on payment of the dues and receive the imported goods, but the defendants did not. Exhibit- l(Kha), a letter dated 11.9.85 and Exhibit-l(Cha), a letter dated 18.12.76 along with so many other letters in the exhibits show that the Bank requested the defendants time and again to take delivery of the consignment on payment of the bills.It transpires from the Exhibit- l(Ga), a letter dated 6.11.86 that the defendants also made a reply to the some letters of the Bank requesting it to clear the consignment by a letter dated 3.2.77 and keep the goods in the Bank's godown. It appears that they also assured the Bank to receive the goods on payment of the dues positively by 30.6.80, but ultimately they did not. A letter dated 26.1.1986 (Exhibit-S(Gha) page 57 of the P.B.) shows that the defendants also sent reply to the letter of the Bank regarding the subject matter in , disputes. So, it is not an acceptable contention that the defendants were not aware of the arrival of goods and subsequent release of the same by the Bank and after keeping in godown for about 9 years sold the same in public auction without their knowledge. In fact, after keeping the goods in the Bank's godown for a long time, the Bank was ultimately compelled to sell the same on auction.

14.       Exhibit-3 series are tender notices published in the daily Ittefaque on 1.6.82 and the particulars of the imported goods for auction sale were also made known to all concern and those were sold to the highest bidder in accordance with law, as the importer did not turn up to receive the goods from the Bank's godown. It is evident that the imported goods arrived in Chittagong Port in the year 1975 and it was disposed of by open public auction in the year 1984 i.e. after about 9 years. It also transpires that the sale proceed of the goods .were duly adjusted in the L.A.M. accounts no. 21 of 1976 and 28 of 1976. Exhibit-4 is the Bank statement of those L.A.M. accounts and it shows that on 30.11.88, the balance in the L.A.M. account no. 21 of 1976 and 28 of 1976 stood at Tk. 8,90,542.50 and 6,86,571/- respectively in total balance amount was Tk. 15,77,113.50 and accordingly, the plaintiff-Bank appears to have instituted the suit for realization. of the said amount along with interest thereon till realisation.

15.       The learned Judge of the Court below could not detect any mistake in calculating the balance as shown in statement of the Bank (Exhibit-4). The defendants contested the Money Suit in the Court below, but could not specifically identify any mistake in calculating the balance payable amount, for which, the suit was filed by the Bank. The learned Judge of the Court below appears to have avoided in taking consideration of the pleadings and evidence available in favour of the plaintiff-Bank. If those are considered properly, there is no reason to dismiss the suit. In case, the Money Suit succeeds, the defendants cannot get any compensation in the Other Suit tiled by them. The plaint of the Other Suit no. 2 of 1994 shows that the defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the business and damages for a period of 15 years. Apparently the nature of claims were baseless and there is hardly any foundation in the evidence as well. But unfortunately, the learned Judge of the trial court accepted the contentions of the defendants in an arbitrary manner and decreed their suit in part awarding compensation for on amount of Tk. 15,00,000/-, our considered view is that the defendants' suit for compensation and damages as set up in Other Suit no. 2 of 94 has no merit to succeed.

16.       Apart from the merit of the suit,   the learned Judge of the Artha Rin Adalat has no jurisdiction to entertain Other Suit no. 2 of 94 and give hearing of the said suit under general law alongwith the Money Suit filed by the financial institution under the special law. It is legally barred and he cannot hold trial of any other suit of the Civil Court unless it is filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. In this respect we rely upon the case of Sultana Jute Mills Ltd. and others-Vs- Agrani Bank and others reported in 14 BLD(AD)-196 wherein it was decided that the Artha Rin Adalat Ain 1990 does not give Artha Rin Adalat any jurisdiction to adjudicate upon any matter other than that provided in section 5(l) of the said Ain. It has been well settled that the defendants cannot also claim a set-off and make out a case of counter claim in a suit filed under the Artha Rin Adalat Ain, 1990. Under the existing Artha Rin Addalat Ain 2003 section 18 (2) also stands as a clear bar to entertain any suit Or counter cliam against the claim of the financial institution. The relevant subsection 2 section 18 runs as follows:

কোন ঋণগ্রহীতা, কোন আর্থিক প্রতিষ্ঠানের বিরুদ্ধে, এই আইনের অধীন আদালতে, সংশ্লিষ্ট ঋণ হইতে উদ্ভূত কোন বিষয়, কোন প্রতিকার দাবী করিয়া মামলা দায়ের করিতে পারিবেন না, এবং ঋণগ্রহীতা-বিবাদী, বাদী- আর্থিক প্রতিষ্ঠান কর্তৃক দায়েরকৃত মামলা লিখিত জবাব দাখিল করিয়া, উক্ত লিখিত জবাবে প্রতিগণন (Set-Off) বা পাল্টাদাবী (counter claim) অন্তর্ভুক্ত করিতে পারিবেন না

17.       It transpires from the L.C.Rs. that the other suit No. 25 of 1992 was filed before the 2nd court subordinate judge, Chittagong under the general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction.

18.       Generally if a suit is tried by a Court without having jurisdiction, the same is required to be sent to a competent Court having jurisdiction to hold trial and make disposal of   the suit afresh. But in the instant Other Suit no. 2 of 94, we have already considered merit of the suit and seen that when the Money Suit no. 181 of 1988 succeeds, the Other Suit no. 2 of 1994 must fail having no other third course. Since we have reached to such a finding, sending back Other Suit no. 2 of 1994 to the appropriate Civil Court for retrial would be useless and unnecessary time consuming and a mere futile exercise. So, the Other Suit no. 2 of 94 is also going to be dismissed in the appeal.

19.       The learned trial Judge appears to have dismissed the Money Suit of the Bank on another ground that it was berred by law of limitation, though no such issue was raised by the parties and framed before trial. However, it is true that the Money Suit was not filed within three years from the date of auction sale of the imported goods in the month of September, 1984. But it appears that subsequently FDR. -money of the defendant 2 was adjusted with the balance and several correspondences were going on to settle up the dispute amicably. Paragraph -11 of the plaint has clearly disclosed cause of action for the Money Suit. It appears that on 5.12.88, the F.D.R.-money belonging to the defendant 2 was at last adjusted with the balance amount. So the matter was not closed before that date. Moreover, last correspondence with the defendant was made on 6.11.88 and   as the defendant did not comply with the request to pay the balance amount of money, the plaintiff-Bank had to file the Money Suit on 24.12.88. Therefore, the question of barring the suit by article 57 of the Limitation Act, as found by the trial Court does not arise. It is a wrong finding of the trial Court. As such, we are inclined to hold that the money suit was not barred by the law of limitation.

20.       It appears that in money suit No. 181 of 88 the plaintiff-bank also has prayed for interest at the rate of 20% per annum on the principal amount from the date of filing of the suit till realisation. But we are not inclined to impose such an exorbitant rate of interest as claimed by the plaintiff. Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim.

21.       Having due regard to the aforesaid observations and findings, we are inclined to hold that the impugned judgment and decree suffers from gross mistake and legal infirmity, and as such, the same is liable to be set aside. Consequently, the impugned analogous judgment passed in the two suits may be reversed.

22.       Consequently, the First Appeal succeeds.

23.       Court fees paid on the memorandum of the appeal is sufficient.

24.       In the result, the First Appeal no. 219 of 1996 is allowed without any order as to costs. The impugned judgment and decree dated 18.5.96 passed analogous in Money Suit no. 181 of 1988 and Other Suit no. 2 of 1994 are set aside. The Money Suit no. 181 of 1988 is decreed on contest with cost. The plaintiff-Pubali Bank is entitled to get Tk. 15,77,1 13.50 from the defendants alongwith simple interest thereon at the rate of 12% per annum from the date of filing the suit till realisation subject to the restriction          imposed   under section 47 of the Artha Rin Adalat Ain, 2003. The interest   amount shall not exceed 200% of the Principal amount in any case. Accordingly, the defendants Are directed to pay the said amount to the plaintiff- Bank within 60(sixty) days from this date, failing which The plaintiff shall be entitled to get the same the same through the court in accordance with law.

25.       The Other Suit No. 2 of 1994 is dismissed without any order as to costs. The analogous judgment and decree so far it relates to that suit are hereby set aside.

Send down the L.C.Rs. along with a copy of the judgment to the Court below immediately.

Ed.

Pulin Behari Bairagee and others Vs. Ananda Chandra Dakua and others

Case No: Civil Petition for Leave to Appeal No.2275 of 2008.

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Lutfor Rahman Mandal,,

Citation: VI ADC (2009) 791

Case Year: 2009

Appellant: Pulin Behari Bairagee and others

Respondent: Ananda Chandra Dakua and others

Subject: Property Law,

Delivery Date: 2009-04-20

Pulin Behari Bairagee and others Vs. Ananda Chandra Dakua and others
VI ADC (2009) 791

Supreme Court
Appellate Division
(Civil)

Present:
Md. Abdul Matin J
Md. Abdul Aziz J

Pulin Behari Bairagee and others…..........Petitioners
Vs
Ananda Chandra Dakua and others…….......Respondents

Judgment
April 20, 2009.

Specific Relief Act, 1877
Section 42
State Acquisition and Tenancy Act, 1950

Landlords filed rent suit and that suit was decreed and the decree holders put the decree into execution and auction purchased the land for areas of rent and then the aforesaid land lords settled.                                                                                      … (6)
The trial Court found that the exhibits of the defendants related to C.S. khatian No. 224 and not the suit land which is C.S. Khatian No.223. Since it was not a proper judgment of reversal the High Court Division rightly set aside the appellate judgment and decree.                                                    ….. (11)

Lawyers Involved:
Lutfor Rahman Mondal, Advocate instructed by Giasuddin Ahmed, Advocate-on-Record-For the Petitioners.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No.2275 of 2008.
(From the judgment and order dated 08.05.2008 passed by the High Court Division in Civil Revision No. 3149 of 1998.)

Judgment

Md. Abdul Matin J. - This petition for leave to appeal is directed against the judgment and order dated 08.05.2008 passed by the High Court Division in Civil Revision No.3149 of 1998 reversing the judgment and decree dated 28.05.1998 passed by the learned Subordinate Judge, Bagerhat in Title Appeal No.264 of 1995 reversing the judgment and decree dated 30.09.1995 passed by the learned Senior Assistant Judge of Mongla Thana in Title Suit No.80 of 1994.

2. The facts, in short, are that the respondent No.1 instituted Title Suit No.80 of 1994 on 29.11.1994 before the learned Assistant Judge, Mongla within the District Bagerhat for declaration of title in kha schedule land against the present petitioners.

3. The disputed land and other khas lands measuring 38.12 acres and the under raiyates of C.S. Khatian No. 224, 226, 227, 228 and 229 measuring 55.52 acres and altogether 93.64 acres were recorded in the name of Ram Dhan Bairagee, Lakhmikanto Bairagee, Pachu Ram Bairagee, Rajoni Bairagee each one anna, six gandos, two karas and two krantis, Dharmo Mondal two annas, thirteen gandas one kara, one kranti, Darikanath Mondal one anna, six gandos, two karas and two krantis, Pancho Ram Mondal one anna, six gandos, two karas and two krantis and Darikanath Dakua five annas, six gandos, two karas and two krantis.

4. Darikanath Dakua died leaving three sons namely Monorhar Dakua, Kamal Dakua, the proforma defendant No.8 and the plaintiff Ananda Dakua and they inherited their fathers share of C.S. Khatian No. 223 and possessed the same jointly and then Monohar Dakua died leaving no wife, sons and daughters and accordingly his share was devolved upon the other two brothers namely the plaintiff and proforma defendant No. 8 Kamal Dakua and the plaintiff from his own share transferred 2.30 acres of land to others and retained 4. 05 acres and possessed the same jointly with other co-sharers and the plaintiff constructed houses and possessed the same and the plaintiff paid rents to the ex-land lords and possessed the same openly and adversely for more than 30 years.

5. There is no dispute about C.S. Plot No. 382 measuring 2850 acres homestead land and by amicable partition the plaintiff possessed C.S. Plot No. 381 and S. A. Plot No. 680 and this plot 3.7650 acres have been possessing by the plaintiff including agricultural land and the plaintiff in total possessed 4. 05 acres but during the S.A. operation the entire land as aforesaid was not recorded in the name of the plaintiff and only 1. 0825 acres was recorded in the name of the plaintiff and the rest 2. 6825 acres of land was wrongly recorded in the name of the defendants more than their shares and that record is illegal and the plaintiff possessed the disputed 'kha' schedule land separately and the plaintiff came to know about the wrong recordings on 20.11.1994 when the defendants denied the plaintiffs title upon the 'kha' schedule land which clouded the tile of the plaintiff and hence the plaintiff filed the suit for declaration of title simplicitor of ‘kha’ schedule land measuring 2.6825 acres.

6. The defendant No.1. 2. 5. 6. 7 filed written statement, jointly and they claimed that the suit is not maintainable in its present form, suit is barred by Section 42 of the Specific Relief Act and the defendants denied the material allegations of the plaint claiming that the cause of action dated 20.11.1994 is false and the court fee paid the specific claims of the defendants are that the landlords of C S. Khatian No. 223 were Nag and Mitra Babus and the tenants defaulted in paying rents and the landlords filed rent suit and that suit and that suit was decreed and the decree holders put the decree into execution and auction purchased the land for areas of rent and then the aforesaid land lords settled the land of C.S. Plot No.381 measuring 8.10 acres and C.S. Plot No. 382 measuring .57 acres in totals 8.66 acres in the Year 1359 B. S. after settling rents in the names of Shetal Mondal, Kamal chandra Dakua, plaintiff Ananda Chandra Dakua and the defendant No.7 Kalicharan Bairagee and delivered possession to them and thereafter again the rents of the aforesaid two plots fell due and the landlords filed rent suit No.75/ 53/ 76/ 53 and 77/ 53 against Shitol Mondal, Kamal Chandra Dakua, plaintiff Ananda Chandra and Kalicharan Bairagee and the aforesaid four tenants amicably settled the claims of the landlords and the aforesaid four tenants right and tile upon the C. S. plot No. 381 and 382 were confirmed and then the plaintiff and his brother Kamal Chandra Dakua on 19.06.1954 with the help of registered patta No.831 made settlement of land measuring 2. 64 of plot No.381 in favour of Sushil father of the defendant No.2 and 3 and at that time the plaintiff Anandra Dakua as member of the joint family executed and registered the aforesaid patta No. 831 dated 19.06.1954 and delivered possession to the aforesaid, tenants and the names of the aforesaid tenants Sushil, the father of the defendant No.2 and 3, pulin Bihari defendant No.1, Malati Bala the defendant No.4 were not recorded in the S.A. Khatian and they filed Title Suit No. 520 of 1957 before the Second Munsif Court, Bagerhat and that suit was decreed on and in that suit the plaintiff Ananda Chandra Dakua who attained majority in the Year 1957 was the defendant No. 2 and decree holders filed Miscellaneous Case No. 537 68-69 under Section 54 of the State Acquisition and Tenancy Act, 1950 before the Revenue department and opened the S. A. Khatian as S.A Khatian No.229/1 and the C.S. Plot No. 381 and S.A. Plot No. 680 measuring 5.10 acres of which 3.77 acres were wrongly recorded in other khatians and the plaintiff Ananda, the aforsaid Kamal, kalicharan and Sarola the wife of Shetal file Title Suit No. 523 of 1957 before the 2nd Munsif Court, Bagerhat and the suit was decreed and they corrected their names by filing Miscellaneous Case No.1165 under Section 54 of the State Acquisition an Tenancy Act, 1950 and the plaintiff himself form the disputed land sold 19 acres of land on 27.08.1974 with the help of registered sale deed No. 1839 in favour of the defendant No.1 and 4 i.e. Pulin Bihari Bairagee and kalicharan Bairagee and after the death of Sushil his share was inherited by his two sons the defendant No. 2 and 3 i.e. Narayan Mondal sold .44 acres of land from the disputed plot along with other lands on 24.06.1989 with the help of registered sale deed No. 834 in favour of the defendant No. 6 Taif ali and the defendant No.4 Maloti Bala sold .88 acres of land on 07.04.1993 with the help of registered sale deed No.534 to Abul kazi and Yanunj kazi the sons of defendant No. 6 and after taking settlement and purchasing land by the defendant No.1 pulin Bihari Bairagee and kalicharan Bairagee the papers were with the custody of the landlords Nag and Metras and the plaintiff himself admitted the same in Title Suit No.523 of 1957 and the plaintiff never challenged the patta dated 19.06.1954 within twelve years from the date of attaining majority in the year of 1957 and the plaintiff instituted a false suit which was liable to be dismissed with cost.

7. The trial court decreed the suit and on appeal the appellate court set aside the judgment and decree of the trial court and dismissed the suit and on revision the High Court Division set aside the judgment and decree of the appellate court and restored those of the trial court.

8. Being aggrieved by the judgment and order of the High Court Division the petitioners have filed this petition for leave to appeal.

9. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

10. It appears that the trial Court on proper assessment of evidence decreed the suit. But the appellate court without averting to those finding set aside the judgment and decree of the trial court and dismissed the suit.

11. The trial Court found that the exhibits of the defendants related to C.S. khatian No. 224 and not the suit land which is C.S. Khatian No.223. Since it was not a proper judgment of reversal the High Court Division rightly set aside the appellate judgment and decree.

12. In such view of the matter we find no substance in this petition which is accordingly dismissed.
Ed.

Pulin Behari Barua Vs. Keramat Ali

Case No: Civil Appeal No. 55 of 1983.

Judge: Fazle Munim ,

Court: Appellate Division ,,

Advocate: Mr. Ahmed Sobhan,Mr. M.H. Khondkar,,

Citation: 36 DLR (AD) (1984) 69

Case Year: 1984

Appellant: Pulin Behari Barua

Respondent: Keramat Ali

Subject: Property Law,

Delivery Date: 1983-05-31

Pulin Behari Barua Vs. Keramat Ali
36 DLR (AD) (1984) 69

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Pulin Behari Barua..................................Appellant
Vs.
Keramat Ali, being dead his heirs: Siddique Ahmed & others..............Respondents

Judgment
May 31, 1983.

The usufructuary mortgage of the suit is not hit by section 26G as now stands amended and the right of redemption continued even after the auction purchase of the suit land on 14-12-33 which passed along with the transfer of the suit land to the plaintiff-respondent. The right of redemption could, therefore, be validly claimed by the plaintiff-respondent. The Appeal is dismissed……………………..(12)

Cases Referred to-
Sarat Kumar Banerjee Vs. Munshi Abdul Bari 36 CWN 844; Krishna Chandra Datta Chowdhury Vs. Khiran Bajania, 10 CWN, 499; Ram Pershad Koeri Vs. Jawahir Roy, 12 CWN 899; Jogendra Chandra Das Vs Debendra Nath Ghosh, 39 CWN 428.

Lawyers Involved:
M.H. Khondker, Senior Advocate instructed by B.C. Panday, Advocate-on-Record—For the Appellant.
Ahmad Sobhan, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent Nos. 1 (a) to 1(e).

Civil Appeal No. 55 of 1983.
(From the judgment and Decree dated 26.4.82 passed by the High Court Division in second Appeal No. 532 of 1970.)

Judgment

Fazle Munim CJ.- This appeal arises from Second Appeal No. 532 of 1970 passed by the High Court Division dated 26th April, 1982.

2. One Keramat Ali Sowdagar, predecessor of respondents 1(a) to 1(e) instituted a Redemption Suit No. 16 of 1965 in the 1st Court of Munsif, Patiya for redemption of mortgage of the disputed lands which, as described in two schedules, originally belonging to one Abdus Samad who mortgaged the lands to Ananda Charan Barua defendant No. 1, by executing two deeds of usufructuary mortgage on May 29, 1924. Since then defendant No. 1 has been possessing the lands. The disputed lands were put to auction in Execution Case No. 189 of 1933 which was filed against Abdus Samad and others. One Purna Chandra Sarkar auction purchased the lands on December 14, 1933 and took delivery of possession on August 20, 1935 through Court. On December 1, 1940 he sold the lands to Abul Bashar and his mother Umda Khatun. On her death Abul Bashar and her husband Jalal Ahmed sold the lands to plaintiff-respondent on September 15, 1945. Thus plaintiff by claiming to have acquired the right of redemption of the mortgage lands, approached defendants No. 1 for redemption as well as possession. But the defendant did not agree. He, therefore, filed the suit.

3. In his written statement defendant stated that he purchased the lands from Abdus Samad on July 19, 1936 in the benami of one Jaga Bandhu Barua and went into possession of the lands. He then filed O.S. No. 9 of 1959 against Jatish Baura, Jaga Bandhu Barua's son, who filed a solenama stating that his father was a benamdar of defendant No. 1. Defendant No.1 further contended that the Miscellaneous Case No. 116 of 1942 was filed against the plaintiff and others for the separation of jama of the disputed holding. As the plaintiff did not claim the rent of the lands in his share the jama was divided. By virtue of his purchase by the kabala and adverse possession for over the period of limitation the mortgage had been extinguished and, therefore, the plaintiff had got no right of redemption.

4. The trial court decreed the suit. Defendant No. 1 preferred other Appeal No. 385 of 1968 before the Subordinate Judge, 3rd Court, Chittagong who dismissed it with the modification that there would be no need of accounting of the usufructs. The Second Appeal No. 532 of 1970 was filed before the High Court Division which was dismissed.

5. Leave to appeal was obtained by the defendant-appellant to consider whether the High Court Division has correctly construed the documentary evidence in ascertaining the nature and character of the lands in question and also whether the High Court Division correctly applied the provisions of section 26G of the Bengal Tenancy Act in view of the amendment of this Act in 1928, the contention was that the lands in question being raiyati and not occupancy raiyati were transferred on May 29, 1924 long before the occupancy raiyati interest were made transferable by the amendment.

6. Mr. M.H. Khondker, Counsel for the appellant, submitted that the disputed lands being raiyati and not occupancy raiyati were transferred by usufructuary mortgages on May 29,1924 but since at this date such transfer could not be validly made the application of the provisions of section 26G of the Bengal Tenancy Act to cover such transfer has been erroneous. Such interests were made transferable by an amendment of the Bengal Tenancy Act in 1928. His further contention was that as the holding comprising the lands in question were put to auction for default in the payment of rents and Purna Chandra Sarkar who is a stranger-purchaser auction purchased the same in money execution case, the mortgagor's right to redemption came to an end and the auction purchaser acquired only the right to recover khas possession of lands as an abandonment of the holding or by annulment of the encumbrances and as he had not done so the auction purchaser could only exercise the right to sue for possession. The learned Counsel, therefore, submitted that the plaintiff-respondent who purchased from the auction purchaser did not, therefore, acquire any right in the disputed lands. Moreover, such right, if any, had been lost due to the lapse of the statutory period of limitation. Hence no suit for redemption was maintainable.

7. In order to enable us to decide the question as to the application of section 26G of the Bengal Tenancy Act, the learned Counsel for the appellant cited a few decisions. Section 26G reads as follows:
"26G. (1) An occupancy-raiyati may enter into a complete usufructuary mortgage in respect of his holding or of a portion or share thereof for any period which does not and cannot, in any possible, event, by any agreement, express or implied, exceed fifteen years land notwithstanding anything contained in this Act or in any other law or in any contract, no other form of usufructuary mortgage so entered into after the commencement of the Bengal Tenancy (Amendment) Act, 1928, shall have any force or effect."

8. Facts of the cases cited by the learned Counsel for the appellant did, however, arise before the amendment of section 26G allowing transfer of occupancy holding. In Sarat Kumar Banerjee v. Munshi Abdul Bari, (1931-32) 36 CWN 844, it was held that "where the tenant of a non-transferable occupancy holding gave a usufructuary mortgage thereof to a third person and subsequently, default, having been made in the payment of rent, the landlord obtained a decree and putting up the holding to sale purchased it himself, the usufructuary mortgage by the tenant coupled with the subsequent rent-sale constituted an abandonment by the tenant which gave the landlord a right to re-enter"

9. In Krishna Chandra Datta Chowdhury vs. Khiran Bajania, (1905-6) 10, CWN 499, it was held that "by creating an usufructuary mortgage, an occupancy raiyat not authorised to transfer his holding makes himself liable to ejectment by the landlord."

10. In Ram Prashad Koeri vs Jawahir Roy, (1907-8) 12 CWN 899, it has been held that "when an occupancy raiyat mortgages his (non-transferable) holding and the mortgagee enforces the mortgage, has the holding sold, and purchases it himself, the possession of the raiyat completely ceases and there is an abandonment of the holding by him".

11. In Jogendra Chandra Das vs. Debendra Nath Ghose, (1934-35) 39 CWN 428, it has been held that "between a landlord purchaser of a non-transferable occupancy holding at a rent sale and a third party purchaser, there is no distinction in respect of the duty to annul an existing encumbrance on the holding. Both have to annul the encumbrance before they can obtain khas possession from the holder of the encumbrance or any one holding under him, the reason being that in cases of transfers of an entire holding which are not by way of sale (e.g. as in this case, a usufructuary 'mortgage of the entire holding) the right of a landlord, as such, are the same as in cases of sale of a part of the holding, namely, he is not entitled to recover possession."

12. Whatever relevancy these cases might have in respect of the instant case before us, it must be seen to have been lost in view of the amendment of the section in 1928 which made an occupancy holding transferable. It, therefore, follows that the usufructuary mortgage of the suit land by Abdus Samad is not hit by section 26G as now stands amended and the right of redemption continued even after the auction purchase of the suit land by Purna Chandra Sarkar on 14-12-33 which passed along with the transfer of the suit land to the plaintiff-respondent. The right of redemption could, therefore, be validly claimed by the plaintiff-respondent.

For reasons, stated above, the appeal is dismissed with costs.
Ed.

P.W.V. Rowe Vs. Chairman, Labour Court, Chittagong, 31 DLR (AD) (1979) 119

Judge: D.C. Bhattacharya,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Aminul Huq,,

Citation: 31 DLR (AD) (1979) 119

Case Year: 1979

Appellant: P.W.V. Rowe

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 1977-1-14

Supreme Court
Appellate Division
(Civil)

Present:
Syed A.B.M. Husain C.J.
Ahsanuddin Chowdhury J.
Kamaluddin Hossain J.
D. C. Battacbarya J.
Fazle Munim, J.

P.W.V. Rowe
.....................Petitioner
Vs.
Chairman Labour Court, Chittagong
…….....Respondents

Judgment
January 14, 1977

Employment of Labour (Standing Orders) Act (VIII of 1965)
Section 5(3)
Loss of lien to appointment of a worker—
Worker does not automatically lose his lien to his appointment of his failure to return within 10 days of the expiry of his leave.

Case Referred to-
National Engineering Industries Ltd. v. Hamman, AIR 1968 (SC) 33.

Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate with A.Y. Salehuzzaman, Advocate, instruct-by M. R. Khan, Advocate-on-Record—For the petitioner.
Aminul Huq, Advocate-on-Record — For the Respondent No. 2.

JUDGMENT

D. C. Bhattacharya, J.

This petition for special leave is against an order of a Bench of the High Court dismissing summarily an application of the petitioner under Article 102 of the Constitution, by which the validity of the order of reinstatement of Respondent No. 2, an employee of the Company, of which the petitioner is the Chairman and Managing Director, made by the Labour Court of Chittagong under section 23 (1) (b) of the Employment of Labour (Standing Orders) Act, 1965, was challenged.

2. Respondent No. 2 appears to have gone on leave for a period of 14 days with effect from 13-1-76. On the expiry of the leave she applied for its extension on the ground of illness, whereupon she was asked by the company to report to the Medical Officer of the Company on 2. 2. 76. Respondent No. 2, however, did not produce herself before the Medical Officer as directed by the Company and then the Company by a letter dated 9. 2. 76 informed her that, on account of her failure to report to duty within 10 days from the expiry of the leave, she had lost her lien to her appointment under, section 5(3) of the Employment of Labour (Standing Orders) Act, 1965. Thereafter Respondent No. 2 returned to her duty on 14-2-76 but she was not allowed to resume her duty. She thereafter filed a Complaint Case under section 25 of the Act after complying with the necessary formality as to submitting a prior grievance petition to her employer.

3. The Labour Court, having come to the finding in the said Complaint Case that Respondent No, 2 had sufficiently explained her inability to return earlier and that the employer did not fairly deal with her case, held that the loss of lien imposed by the employer upon Respondent No. 2 was illegal and malafide and pursuant to such findings, directed her reinstatement in her former post with full back wages and continuity in service. The petitioner having moved the High Court in writ jurisdiction against the said order of the Labour Court, the High Court has summarily rejected the Petitioner's application on the view that the Labour Court had taken a reasonable view of the matter With regard to the provisions of section 5 (3) of the Employment of Labour (Standing Orders) Act, 1965.

4. Mr. Syed Ishtiaq Ahmed, learned Counsel appearing on behalf of the petitioner for special leave to appeal against the said order of the High Court, has urged two points, firstly, that the High Court did not take the correct view of the law as embodied "in section 5 (3) of the Employment of Labour (Standing Orders) Act, 1965 and ought to have held that on the failure of Respondent No. 2 to join her post within 10 days from the expiry of leave, her service had automatically terminated and secondly, that the findings of the Labour Court, that Respondent No. 2 had satisfactorily explained her failure to resume her duty after the expiry of leave and that the loss of lien imposed by the employer was illegal and melafide, were perverse as there was no corroboration of the evidence of the complainant, and that the High Court should have set aside the said finding. In support of both these contentions learned Counsel relied upon a decision of the Supreme Court of India in the case of. National Engineering Industries Ltd. v. Hamman AIR 1968 (SC) 33.

5. On the first question, learned Counsel has cited the following observation of the Indian Supreme Court made in judgment referred to above at page 35 as to the interpretation of the Standing Order under the Industrial Disputes Act, 1947, under which the said case arose:

"The Standing Order is inartistically worked, but it seems to us clear that when the Standing Order provides that a workman will lose his lien on his appointment in case he does not join his duty within 8 days of the expiry of his leave, it obviously means that his services are automatically terminated on the happening of the contingency. We do not understand how a workman who has lost his lien on his appointment can continue in service thereafter. Where, therefore, a standing order provides that a workman would lose his lien on his appointment, if he does not join his duty within certain time after his leave expires, it can only mean that his service stands automatically terminated when the contingency happens."

It appears to us that the provision of section 5(3) of the Employment of Labour (Standing Orders) Act, 1965, which controls the present case, is different from that of the Indian Standing Order considered in the said case and we think that the former provision does not bear the same interpretation as has been given to the Indian Standing Orders, as will appear from a perusal of the said provision, which is quoted below:

“5. (3) If the worker remains absent beyond the period of leave originally granted or subsequently extended, he shall be liable to lose his lien to his appointment unless he returns within ten days of the expiry of his leave and explains to the satisfaction of the employer his inability to return earlier; Provided that in case any worker losses his lien to his appointment under this section he shall not be deprived of the benefits and privileges which have already accrued to him under the law due to his past services and, in addition, he shall also be kept on the badly list, if any;

Provision further that if such a worker fails to "explain to the satisfaction of the employer the reason of his failure to return at the expiry of the leave, the employer may, on consideration of extenuating circumstances, if any, suspend him, as a measure of punishment, for a period not exceeding seven days from the date of his return and the worker shall not be entitled to wages for such periods of unauthorized absence and of suspension but he shall not lose the lien to his appointment."

6. It is evident that the words used in the said provision indicate that the worker does not automatically lose his lien to his appointment on his failure to return within 10 days of the expiry of his leave and give a satisfactory explanation of his inability to return earlier, but on the happening of such a contingency he "shall be liable to lose his lien". The second proviso to sub-section (3) as has been quoted above also shows that on the failure to give satisfactory explanation the loss of lien is not automatic.

7. When one's service is liable to be, 'terminated' on the happening of certain event it is obviously not automatically put to an end on the happening of such event but it requires a further act on the part of the authority to finally terminate his service on such ground.

8. Clause (d) of sub section (3) of Section 17 of the Act provides that absence without leave for more than 10 days is a kind of misconduct and a worker may be dismissed or otherwise dealt with under sub-section (1) and (2) of section 17 read with section 18 of the Act. If absence without leave for more than 10 days is misconduct and a proceeding is to be drawn up for dismissal or for other kind of punishment for such absence, it does not stand to reason that if there Is such absence after leave has once been taken, there shall be automatic termination of service and no opportunity should be given to explain his inability to return to join his service after the expiry of the leave. From a consideration of the provision, of section 5(3) of the Employment of Labour (Standing Orders) Act in the light of the other provisions of the Act it does not appear to us that, same interpretation should be given to the said provision, as has been given to the Indian law by the Supreme Court; of India in the case of National Engineering Industries Ltd. Vs. Hanuman, AIR 1968 (SC) 33.

9. On the second question also the learned Counsel has pointed out that the Supreme Court of India in the aforesaid case interfered with a finding of fact recorded by the Labour Court, on the view that such finding having lacked in proper corroboration was perverse. We have great doubts whether the principle, as has been enunciated in the said decision on this question, can be invoked in the present case. Under the Indian Law, the Supreme Court of India examined the propriety of the finding of the Labour Court directly in an appeal under Article 136 of the Constitution. In the instant case the finding of the Labour Court is challenged under Article 102 of the Constitution and the High Court examined the validity of the finding of the Labour Court in its Writ jurisdiction. In the present case the Labour Court on a consideration of a number of documents, namely, the series of applications, telegram and medical certificate, which where contemporaneous, came to the finding that the employee satisfactorily explained her inability to join her post after the expiry of leave and that the employer was rather unjust and harsh in refusing to consider the employee’s case on merits. We do not think that the High Court was wrong in refusing to interfere with the said finding in exercise of its writ jurisdiction. The decision of the Supreme Court of India, as has been cited by the learned Counsel for the petitioner, has, in our opinion, no manner of application to the facts of the instant case.

For the foregoing reasons we do not find any substance in any of the two contentions urged by the learned Counsel and the petition is dismissed.

Ed.

Qamrul Islam Siddique Vs. Saber Ahmed and another

Case No: Civil Appeal No. 24 of 1999

Judge: Md.Ruhul Amin,

Court: Appellate Division ,,

Advocate: Abdur Rab Choudhury,Faizul Kabir,,

Citation: 1 ADC (2004) 224

Case Year: 2004

Appellant: Qamrul Islam Siddique

Respondent: Saber Ahmed and another

Subject: Administrative Law,

Delivery Date: 2002-2-10

Qamrul Islam Siddique

Vs.

Saber Ahmed and another, 2002,

1 ADC (2004) 224

Supreme Court
Appellate Division
(Civil)

Present:
Mainur Reza Chowdhury J
Md. Ruhul Amin J
Mohamad Fazlul Karim J

Qamrul Islam Siddique .................................Appellant

Vs.

Saber Ahmed and another..............................Respondent

Judgment
February 10, 2002.

Government Servants (Special Provisions) Ordinance, 1979 (Ordinance XI of 1979)
Section 5, 6 & 3 (b)

Article 140 (2) of the Constitution

       Appointing authority or any person authorized by him to give personal hearing if the delinquent express his desire to that respect………………….. (13)

      The delinquent officer and the competent authority to dismissed him having had not given personal hearing to respondent No.1 the officer of the respondent No.1’s category, before issuing order of dismissal, the same was unsustainable in law as because the previous Secretary although gave personal hearing to respondent No.1 but he did not record the final decision in any respect……… (13)

Lawyers Involved:
Faizul Kabir, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the appellant. (Appeared with the leave of the Court)
Abdur Rab Chowdhury, Senior Advocate, instructed by A/tab Hossain, Advocate-on-Record-For the Respondent No. 1.
Not Represented- Respondent No. 2.

Civil Appeal No. 24 of 1999.
(From the judgment & order dated 12 November, 1998 passed by the High Court Division in Administrative Tribunal Appeal No. 20 of 1997)

Judgment:
                 Md. Ruhul Amin J.- This appeal by leave has been preferred by the Chief Engineer, LGED (though government of Bangladesh represented by the Secretary, Ministry of LGRD and Co-operatives was party in the Administrative Tribunal Case No.135 of 1991 and in AAT Appeal No. 20 of 1997) who was impleaded in the A.T case by name since there were certain allegations in the petition filed before the Administrative Tribunal by the respondent No. 1 Executive Engineer, Local Government Engineering Bureau who was dismissed from Service on 9^tn May, 1991 on the ground of being absent without leave or reasonable excuse from the place where he was transferred it may be mentioned case before AT and AAT was disposed of solely on matters of law and at no stage allegations against appellant was considered in any respect in disposing of the case.

2. Facts, in short are that respondent No.1 after obtaining degree in Civil Engineering joined on 25^th September 1961 as Assistant Engineer in the then East Pakistan Water and power Development Board and while was holding the post of sub Divisional engineer he left the said organization and joined on 1^stDecember, 1966 as District Engineer in Noakhali Zilla Parishad on the basis of a letter of appointment issued under the signature of the secretary, Basic democracies and Local government department of the then a Government of East Pakistan as per provision of East Pakistan Local Councils service Rules, 1968. The respondent No.1 as district Engineer served in different districts and lastly served as District Engineer in Chittagong Zilla Parishad.

3. On 23^rd August, 1984 National Implementation Committee for Administrative Reorganization (NICAR), recommended for creation of Local government Engineering Bureau (LGEB) comprising the District Engineers and other Engineers of the Zilla parishad and there upon LGEB was created with the said personnel. The respondent No.1 while working as District Engineer in Chittagong Zilla Parishad, he and 32 others were absorbed by the office order issued under the signature of the Deputy Secretary (Development) of Local government Division, Ministry of LGRD and co-operatives on 22^nd December, 1984 as Executive Engineer in the Local Government Engineering Bureau. Thereafter he was transferred from Chittagong Zilla Parishad on 25^th June, 1985 to LGRD Head Quarter at Dhaka as superintendent Engineer and he worked there as superintendent Engineer from 5^th September,1985 to 10^thJuly,   1987 in Noakhali Rural Development project II and thereafter on 16^th July, 1987 he was transferred to Mymensingh as executive Engineer and thereafter on 28^th February,1989 he was transferred to Borguna as Executive Engineer, but he did not Join either in Mymensingh or in Borguna. The respondent No. 1 challenged his transfer as Executive Engineer to Mymensingh by filing A.T Case No.182 of 1987 which was pending till the time of disposal of the Administrative Tribunal Appeal No. 20 of 1997.

4. Since the respondent No.1 instead of joining at the place where he was transferred, but absented without leave from the competent authority or without reasonable excuse proceeding under section 3(b) of the Government Servants (Special Provisions) Ordinance, 1979 (Ordinance XI of 1979), herein after in short the ordinance of 1979, was initiated on 10^th November, 1990 by the Secretary of the Ministry of LGRD and co operatives. The respondent No.1 replaced to the show cause notice denying the allegations made against him. Thereafter he was given personal hearing by the Secretary on 10 January 1991 and later on he was served with 2^nd show cause notice to which he replied. Finally on 9^tn May, 1991 he was dismissed by the office order communicated under the signature of the then secretary, of the Ministry of LGRD and co operatives. The respondent No.1 challenging the legality of the order of his dismissal filed A.T. case No.135 of 1991 before the Administrative Tribunal (A.T), Dhaka.

5. The appellant and the respondent No. 2 Government of Bangladesh, contested the said A.T. Case No.135 of 1991 contending, inter alia, that respondent No.1 was absent from the place of duties for long time without leave and that on that allegation charge was framed under Section 3(b) of the Ordinance of 1979 against the respondent No.1 and to that respondent No.1 submitted his explanation. The authority gave personal hearing to the respondent No.1 and that served 2^nd show cause notice stating the proposed punishment to be imposed on him and that respondent No.1 submitted his explanation and the authority considering the allegations as well as the explanation given by the respondent No.1 imposed the penalty upon dismissing him from service.

6. The A.T. dismissed the case by the order dated 15^th January, 1997 on the finding that respondent No. 1 was absent from his place of duties for long time without leave or permission and thereby committed punishable offence under the provision of the ordinance of 1979. The A.T further held that disciplinary proceeding was initiated by the competent authority, secretary of the ministry being the Executive Head as because 'Government in the Ministry is the appointing authority of the petitioner" (respondent No.1 in the leave petition). It may be mentioned that the A.T held that disciplinary proceeding against the respondent No.1 was initiated by the competent authority under the presumption that in 1991 the government was of Parliamentary form and that in the said from of Government, "Cabinet may be understood as the government and it includes all the ministries headed by the Prime Minister, the Cabinet has distributed functions between the Ministries. Accordingly the Ministry of LGRD and co-operative, Local, Government division has been allocated the subject of the Local government Engineering Bureau" and as such Government in the said Ministry being the appointing authority of the petitioner was competent to initiate discipliner proceeding under the ordinance of 1979 against the respondent No.1.

7. Respondent No.1 as against the judgment and order in the AT case No.135 of 1991 took appeal, being Appeal No. 20 of 1997, before the Administrative Appellate Tribunal (AAT). It was the contention of the opposite-parties of the A.T Case No. 135 of 1991 as because the appointing authority of the respondent No.1 was the secretary Ministry of LGRD, as such initiation of disciplinary proceeding by the Secretary of the Ministry of LGRD and that passing of the order of dismissal by the secretary of the Ministry of LGRD was quite legal.

8. The respondent No.1 and others were absorbed as Executive Engineer in the LGRB by the office order dated 22^nd December 1984 and at that relevant time terms and conditions of the service of LGEB personnel were regulated by the provisions of East Pakistan Local Council Service Rules 1968 and there in secretary of the Basic Democracies and Local Government Rural Development, later on LGRD was the appointing authority of the officers like the respondent No.1 of the Local Government Engineering Bureau. Later on under Article 133 of the Constitution, the President in the light of the provision of Article 140 (2) of the Constitution framed rules relating to the appointment of the officers and Employees of Local government Engineering Bureau titled as "স্থানীয় সরকার প্রকৌশল ব্যুরো কর্মকর্তা এবং কর্মচারী নিয়োগ বিধিমালা ১৯৮৬" [The Local Government Engineering Bureau Employer and Employee Appointment Rules, 1986] and the same was published in the Bangladesh Gazette, Extraordinary on 30 April, 1987 and by the provision of Section 2(Ga) of the said Rules Government was made the appointing authority or any other person authorized by the Government.

9. The AAT on the finding that the expression Government at the time of initiation of the proceeding and passing of the order of dismissal was referable to the president since the country at the relevant time was run by presidential form of Government and as such the expression Government as in the Rules of 1986 means, the president and "as such the president is the appointing authority of the appellant". Although it was claimed by the respondent (in the AAT), the then Secretary of the ministry of LGRD and co-operatives gave personal hearing to the appellant and formally recorded the final decision and that on his transfer the said decision was only communicated by the successor-in-office but as in support of said claim as the respondents (before AAT) did not place any paper before the AAT. There upon AT held, "even if the Secretary is taken to be competent authority the position is in no way improved as the secretary who made the order and under whose signature the order was communicated had no lawful authority and as such it is of no legal effect."

10. It was contended on behalf of the respondent No.1 before the AAT that in view of the provision of Section 6 of the Rules of Business read with the provision at SD. No. 74 (d) of the Schedule III of the Rules of business as because appellant's pay scale was Tk. 3700-4425/-prior approval of the President was necessary before issuance of the order of dismissal, but no approved was obtained although it was mentioned in the order of dismissal that the same was communicated by the order of president. As no paper was placed before the tribunal as regard the obtaining of approval of the President before the making of the order of dismissal in respect of the appellant (before AAT), the AAT held "we must therefore hold that the impugned order could not be made or issued without the approval of the president". Upon the aforesaid findings AAT allowed the appeal.

11. As against the judgment and order of the AAT Government respondent No.1 before the AAT did not file any petition for leave to appeal. But the chief Engineer, Local Government Engineering Department filed petition for leave to appeal against the judgment of the AAT.

12. Leave was granted to consider the submissions of the appellant:-
                 "Respondent No. 1 having been appointed as District Engineer by the Zilla Perishad and there after having been absorbed in the service of Local government Engineering Bureau as Executive Engineer along with other District Engineers of Zilla Parishad by an office order dated 22-11-84 issued by the Deputy Secretary to the Ministry of LGRD, Local Government Division and respondent No.1 having not been appointed by the President, the provisions of Rule 75 (1) of the Rules of business, 1975 which was prevalent at the relevant time is not attracted in this case and the Appellate Tribunal was wrong in declaring that the impugned order of dismissal passed by the Secretary not having been made or issued without the approval of the President was illegal."

13. In the light of the decisions of the NICAR Local Engineering Bureau (LGEB), [now LGED], was created to absorb the District Engineer of the Zilla Parishads and all other engineer Personnel of the Rural Works Programs and the said Proposal having been approved by the President, the district Engineer and all other engineer personnel of the Rural Works Programs were absorbed in the LGEB. The respondent No.1 and others were absorbed by the office memo dated 22^nd December, 1984 as the Excusive Engineer in the LGEB. Although at a time when the respondent No. 1 joined in Noakhali Zilla Parishad as District Engineer the terms and conditions of the service were Governed by the East Pakistan Local council Service Rules, 1968 and as per provision of the said rules of 1968, Secretary of the Basic Democracies and Local government Department was the appointing authority, but this position changed with the promulgating of Local government Engineering Bureau (officers and Employees) Appointment Rules, 1986 where in the Government or any other authority authorized by the government was made the appointing authority. In the instant case at the time when the proceeding was initiated respondent No.1 was an employee in the service of the Republic at the scale of pay Tk.3700-4425/-per month. The proceeding against the petitioner under section 3(b) of the ordinance of 1979 was initiated by the secretary, Ministry of the Local Government, Rural Development and co operatives. The respondent No.1 seriously challenged the legality of the initiation of the proceeding by the secretary of the LGRD and co-operatives on the contention that in view of the provision of the rules of 1986, the Government being the appointing authority of the officers of the respondent No.1's category, as such any disciplinary proceeding could have against him only been initiated upon obtaining approval of the president since at the relevant time i.e. on 10th November, 1990, when show cause notice was issued to the respondent No.1 and the order of dismissal dated 9^th May, 1991 were issued the form of the Government prevalent was presidential form of the Government prevalent was Presidential form of government. As seen from the judgment of the AT that the said Tribunal on the premise that at the time when the order of dismissal was issued the form of government was parliamentary form of Government and there by the Secretary in the Ministry was the competent authority to make order of dismissal. This presumption was fallacious has been conceded before the AAT by the respondent there in i.e. the present appellant and the respondent No.2. In the said state of the matter it has been contended on behalf of the respondent No.1 that the expression Governing means 'the person or body of persons administering laws and government the State "Or that" the body or persons charged with the duty of Governing and exercising certain pore and performing of certain duties by public authorities or officers together with certain corporation exercising certain public function.’ At a time when the order of dismissal in respect of the respondent No. 1 was made undisputedly the form of Government being Presidential on it was the president alone who was legally authorized to make the order of dismissal in respect of the respondent No.1. Although it appears from the memo communicating the order of dismissal that the same was made by the president and that the said order of dismissal was merely communicated by the Secretary Ministry of LGRD and co-operatives but in support of that the order dismissal of the respondent No.1 was in fact passed by the president no material was placed before the AT and AAT, nor before this Division, As seen from the stand that was taken before the AT and AAT by the appellant and the respondent No. 2 that Secretary was the competent authority to appoint the officers of the respondent No.1's category and as such the secretary, Ministry of LGRD and Co operatives was the competent authority to initiate disciplinary proceeding against the officers of the category of respondent No.1 of LGEB (now LGED) and that also was competent to make the order of dismissal in respect of the officers of the said category. In support of the leave to appeal it was submitted that the respondent No.1 as Executive Engineer was absorbed in the LGED by the office order issued by the Deputy Secretary of the LGRD and as such Secretary, Ministry of LGRD and co operatives was competent to dismiss the respondentNo.1. It is correct office order dated 22^nd November, 1984 absorbing the respondent No. 1 and others as executive Engineer in the LGEB was issued under the signature of the Deputy Secretary, Ministry of LGRD and co-operatives, but for that it cannot be said that respondent No.1 was appointed as Executive Engineer of the LGEB by the Secretary and that not by the government as because as per decision of NICAR, which had approval of President LGEB (now LGED) was created and thereupon respondent No operatives and later on by the Rules of 1986 appointing authority either was the Government or any other agency or person authorized by the Government. This later change in the power to make appointment of the officer of the Respondent No.1's category, certainly brought a change in the position that was at the time of respondent No.1's appointment as District Engineer of Noakhali Zilla Parishad and thereafter absorptions by the office order dated 22^nd November, 1984 even if contention of appellant is taken correct, thought in fact otherwise as already state herein before. In this situation the contention of the appellant that secretary of the LGRD and co operatives was vested with the authority to make appointment of the officer of the respondent No.1 category of the LGEB (now LGED) is not legally well founded and that being so disciplinary proceeding that was initiated by the Secretary of the LGRD and co operatives under section 3(b) of the Ordinance of 1979 was not initiated by competent authority and that order of dismissal was not made by the competent authority since no material was placed either before the Tribunals or before this Division that the order of dismissal was made by the president although in the letter communicating order of dismissal it was shown same said to have been passed by the president. It is pertinent to mention it was the positive stand of the opposite parties before At and the respondents before AAT that Secretary, Ministry of LGRD and co operatives was the competent authority to make order of dismissal in respect of respondent No. 1 and as such order of dismissal was legal. The other aspect of the matter relating to dismissal of the respondent No.1 is that provision of section 6 read with the provision at SI. No.75 (1) of Schedule III of the Rules of Business attracted or not in the case of respondent No.1. The respondent No. 1 was holding the post in the service of the Republic at the scale of pay Tk.3700-4425/-. The officers of the said pay scale in view of the provision at SI. No.74 (d) of the 3^rd Schedule of the Rules of business, could be dealt with in any respect only with the approval of the President. On 9^th May, 1991 when the respondent No. 1 was dismissed from service the from of Government prevalent was a Presidential form of Government and that no material having been placed on record that appointment of the officer of respondent No.1's category with the pay scale as mentioned herein above could be made without the approval of the president and officers of the respondent No.1's category could be dismissed by the any other authority other than the president. In the background of this undisputed situation the submission of the appellant that provision at SI. No.75/ (1) of the 3^rd Schedule of the Rules of Business, as at the relevant time was in force, was not attracted in the case of the respondent No. 1 legally not sustainable, There is another aspect of the matter i.e. taking of final decision in a disciplinary proceeding under the provision of the ordinance of 1979 after giving personal hearing to the delinquent officer by the Secretary of the Concerned Ministry. In the instant case personal hearing to the respondent No. 1 was given by the Secretary, of the Ministry of LGRD and co-operatives, but he did not record any final decision in any respect before leaving the Ministry on transfer. The successor in the office of the Secretary, Ministry of LGRD and Co operatives without giving any personal hearing to the respondent No.1 passed the order of dismissal and communicated the order of dismissal mentioning purportedly to have been passed by the president. Although in spite of challenge as to absence of approval of the order of dismissal by the president no material was placed before a the tribunals and this court that punishment of dismissal was approved by the president and that the Secretary who gave the personal hearing to the respondent No.1 recorded the final decision and that the decision so recorded by the previous Secretary was communicated only by the incoming Secretary. The provision of section 5 of the Ordinance of 1979 requires that the appointing authority or any person authorized by him to give personal hearing if the delinquent express his desire to that respect, which then delinquent officer in the instant case expressed and that the delinquent officer was heard by the secretary of the Ministry of LGRD and co-operatives but the Secretary did not record the final decision. Even if the contention of the appellant is taken to be correct that Secretary, Ministry of LGRD and co operative was the appointing authority of the respondent No.1. which is otherwise in law, even then as provision of section 5 of the ordinance of 1979 was not complied with i.e. Secretary of the Ministry, of LGRD and Co-operatives who is being claimed to be the appointing authority of the delinquent officer and the competent authority to dismissed him having had not given personal hearing to respondent No.1 the officer of the respondent No.1's category, before issuing order of dismissal, the same was unsustainable in law as because the previous Secretary although gave personal hearing to respondent No.1 but he did not record the final decision in any respect.

14. The order of dismissal having been made in violation of the provision of section 5 of the ordinance of 1979 in that score also the same is not sustainable in law.

            In view of the discussions made here in above the appeal is dismissed without any order as to costs. The judgment and order of the Administrative Appellate Tribunal, Dhaka in Appeal Case No. 20 of 1997 is maintained.
Ed.

Quaderabad Housing Estate Limited Vs. G.K.Moinuddin Chowdhury and others, 1 LNJ (2012) 551

Case No: First Appeal No. 49 of 2008

Judge: M. Enayetur Rahim,

Court: High Court Division,,

Advocate: Md. Abdul Quayum,,

Citation: 1 LNJ (2012) 551

Case Year: 2012

Appellant: Quaderabad Housing Estate Limited

Respondent: G.K.Moinuddin Chowdhury and others

Delivery Date: 2010-07-21

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)

Mr. Farid Ahmed, J.
And
M. Enayetur Rahim, J.

Judgment
21.07.2010

Quaderabad Housing Estate Limited

...Appellant

Vs.

G.K.Moinuddin Chowdhury and others

...Respondents

Code of Civil Procedure (V of 1908)
Order VII, rule 11
Arbitration Act (I of 2001)
Section 7
A suit can be proceeded splitting up the plaint against those defendants, against whom the cause of action exist. It is admitted in the plaint that regarding 56 transfer deeds and plots of schedule ‘B’ an arbitration took place and award had already been passed on those disputes against which an Arbitration Miscellaneous case has been filed before the learned District Judge, Dhaka which is pending. But with regard to 21 deeds out of 77 transfer deeds of schedule ‘B’ to the plaint and plots relating thereto, were not referred to the Arbitration Tribunal and the award has got no manner of connection with the said 21 transfer deeds for which the suit is very much maintainable regarding those 21 transfer deeds. Hence the plaint cannot be rejected as a whole. An application for rejecting the plaint can be filed before submitting written statement......(17 to 20)

Ismat Zerin Khan –Vs-The World Bank and others, 11 MLR (AD)58; Syed Masud Ali and others –Vs- Md. Asmatullah & others 32 DLR (AD) 39; Balwant Singh–Vs- The State Bank of India and others, AIR 1976, Punjab & Haryana, (Full Bench)316;Mst. Chandani –Vs- Rajasthan State and others, AIR 1962, Rajasthan 36; Jobeda Khatun –Vs- Momtaz Begum and others 45 DLR (AD)31;P.R. Sukeshwala and another –Vs- Dr. Devadatta V.S. Kerkar and another AIR 1995, Bombay, 227; Fisheries Research Institute and others –Vs- Mr. Bhuyain Ltd and others 4 BLC,126;Gutte–Vs- Punno AIR 1963, Madhya Prodash 96; Bangladesh Power Development Board and others –Vs- Md. Asaduzzaman Sikder 8 MLR (AD),241; Khandkar Abul Hussain –Vs- Government of the People’s Republic of Bangladesh and others 54 DLR 467; Abdul Jalil and other –Vs- Islami Bank and Bangladesh 20 BLD (AD)278, ref.

Mr. Abdul Quayum, Advocate

---For the Appellant.

Mr. Shah Md. Khasruzzaman, Advocate

---For the Respondent No. 1

Mr. A. Z. M Mohiuddin, Advocate

---For the Respondent Nos. 2, 8, 10, 13, 17, 43 & 50.

First Appeal No. 49 of 2008

Judgment

M. Enayetur Rahim, J:

          Plaintiff has preferred this appeal being aggrieved by the judgment and decree dated 06.11.2007 passed by the learned Joint District Judge, 3^rd Court, Dhaka in Title Suit No.19 of 2007 rejecting the plaint of the suit under the provision of order VII Rule 11(d) of the Code of Civil Procedure, read with section 7 of the Arbitration Act, 2001.

2.     Plaintiff appellant instituted Title Suit No. 19 of 2007 in the 3^rd Court of Joint District Judge, Dhaka impleading the present respondents as defendants for a declaration that the deeds of transfer described in the schedule-B to the plaint are void illegal, inoperative and not binding upon the plaintiff and for recovery of khas possession of the land described in the schedule to the plaint after evicting the defendants No. 2-83.

3.     Plaintiff’s case, in short, is that the plaintiff Quaderabad Housing Estate Ltd. is a Private Limited Company duly registered at the office of Register Joint Stock Companies and the plaintiff company was framed to carry on business on real state, building, apartment and other business. The properties descried in schedule ‘A’ to the plaint were purchased by late Abdul Qader Chowdhury, Abdul Momin Chowdhury, Abdul Barek Chowdhury and Abdul Barek and sons limited on different dates and years from the rightful owners and possessors. After such purchase they mutated their respective names in the office of the Revenue Authority, paid rent and got rent receipts. Subsequently amicable agreement was made between them and according to the said amicable agreement Abdul Momin Chowdhury got the landed properties described in schedule-‘A’ to the plaint. Abdul Momin Chowdhury also purchased some properties, which form part of the schedule-‘A’ property. He also amalgamated his own purchased property with that of the inherited properties and for better and more beneficial use of the properties he desired to form a Real Estate Business and Alhaj Abdul Momin Chowdhury was made the Managing Director of the Company. The power of issuing allotment of plot, receipt of consideration, execution, registrations of document absolutely vest with the Managing Director Mr. Abdul Momin Chowdhury. The Articles of Association of the company do not empower any other Director to transfer the properties of the Real Estate. Mr. G. K. Moinudddin Chowdhury, the defendant No.1 is the eldest son of Alhaj Abdul Momin Chowdhury. He was not promoter director or a share holder of the Real Estate Company. The defendant No.1 was adopted a Director of the Real Estate Company on 28.08.1996 on allotment of 1000 shares. As per internal management of all the companies, business of the family was amicably arranged. The defendant No.1 was given responsibility of Qaderabad Housing Estate to look after the affairs of the company to manage, maintain, and prevent encroacher/ trespassers. He was also assigned to procure buyers of the plots, negotiate sale and he would introduce the buyers with the Managing Director and duly inform the buyers terms and conditions. The buyers have to pay the price as per terms of the memorandum and Articles of Association to the Managing Director and the Managing Director used to receive consideration, execute and register due conveyance of sale. Many plots have sold in the aforesaid manner. The defendant No.1 was not and is not empowered to transfer or execute any document of transfer. The Managing Director is the only person to execute the deed of transfer. The defendant No.1 in violation of the terms and conditions of the Memorandum of Article of Association transferred the plots numbering 54 secretly to different persons. He in collusion with buyers executed the deeds of transfer without the knowledge of the Managing Director. He received the consideration money, executed and registered deeds of sale in favour of the defendants No.2–55(b) illegally using the name of the company. The transfer, execution of the documents of the transfer and registration are all illegal, voids inoperative and collusive. The company is not bound by the illegal and unauthorized acts of defendant No.1. The defendants No.2-55(b) have not acquired any right, title and interest by virtue of those illegally created documents. The plaintiff company does not recognize them as purchasers/ allottees of the plots. When this forgery was detected the Managing Director, other Directors of the company became bewildered. In order to save the reputation of the plaintiff company and also to resolve the misunderstanding the dispute was referred to the Arbitration of 2(two) gentlemen namely Mr. Abdul Gafur Mazumder and Mr. Wahidar Rahman by a written reference dated 06.02.2006. The Arbitrators were to give the award within a period of 04.05.2006. The Arbitrators committed gross misconduct and gave a biased award and legalized the illegal acts of the defendant No.1 and the plaintiff company became prejudice. Against the said award the Managing Director and other Directors of the company have filed Arbitration Miscellaneous Case No. 764 of 2006 before the District Judge, Dhaka for setting aside the award dated 04.05.2006. The defendant No.1 during the period of arbitration proceedings and from the date of award till date also transferred 54 plots to the defendants No. 2-55(b). The plaintiff company was not a party to the arbitration agreement, the share holders of the plaintiff company and other companies referred the dispute for arbitration. The defendant No.1 has not honoured the award. He has been selling the plots of the company beyond the alleged award. He has not taken any step to transfer his shares of the plaintiff company and other companies to his father Alhaj Abul Momin Chowdhury. He has been flouting the terms of the award. The defendant No.1 has sold the properties by executing and registering sale deeds. The registered sale deeds can be cancelled only by a decree of the competent civil court. The arbitration proceeding ended with the award. The Managing Director of the Company on various dates cautioned the members of the Public not to purchase property/ plots from defendant No.1 by publishing public notices in the daily news papers. He also wrote letters to the Sub-Registrar, Mohammadpur, Chairman RAJUK, Assistant Commissioner (Land), Chairman House Building Finance Corporation and requested not to deal with the forged and collusive transfer made by the defendant No.1 in collusion with other defendants. The schedule land measuring total area 214.373 (Katha) as transferred by the defendant No.1 to the other defendants by the deeds as described in schedule-‘B’ to the plaint are void, illegal inoperative and not binding on the plaintiff company and liable to be cancelled. A cloud has been cast upon the title of the plaintiff company by the creation of schedule-‘B’ sale deeds.

4.     The defendant-respondent No.1 after entering into the suit filed an application under Order VII Rule 11 (d) of the Code of Civil Procedure read with section 7 of the Arbitration Act, 2001 for rejection of the plaint of the suit stating, inter alia, that on mere reading and going through the plaint it becomes clear that the plaintiff company categorically admitted in paragraph-9 of the plaint that the Managing Director and other Directors of the company to resolve misunderstanding amongst themself referred the disputes to the Arbitration of 2 Arbitrator namely Mr. Abdul Gafur Majumder and Mr. Wahidur Rahman by a written reference dated 06.02.2006 (Memorandum of understanding) and the said Arbitrators gave an award on 04.05.2006. It also admitted that on behalf of the present plaintiff company the Managing Director and other Directors of the company have already filed Arbitration Miscellaneous Case No.764 of 2006 in the Court of District Judge, Dhaka for setting aside the award and said Miscellaneous Case is still pending. It was further stated in the said application that from the averments made in the plaint the plaintiff admitted that the Managing Director and the others Directors of the plaintiff company were the parties to the Arbitration agreement dated 06.02.2006 as well as the award dated 04.05.2006 and the defendant No.1 was the other party of the same Arbitration agreement and award. The subject matter and or determining issues of the said Arbitration agreement and award as well as the subject matter and or determining issues of the present suit are same and that the present suit arising out of the same disputes, which have already been amicably settled and resolved by the family settlement acknowledged by both the parties through execution of a Memorandum of Understanding and or Arbitration agreement on 06.02.2006, followed by an award dated 04.05.2006 regarding the same schedule of deeds of transfer and plots and other related maters as it is most pertinently evident from the copy of the award filed by the plaintiff company through firisty. The instant suit is neither maintainable nor entertainable in its present from and nature and the jurisdiction of the same is barred under section 7 of the Arbitration Act (Salishi Ain) 2001 and hence the plaint of the present suit is liable to be rejected. It was also stated in the application that a fruitless litigation can not allowed to be continued for ends of justice and thus the plaint of the instant suit was liable to be rejected under section 151 of the Code of Civil Procedure.

5.     The plaintiffs filed written objection against the said application denying the material statement made on it stating, inter alia, that the defendant No.1 obtained an illegal and biased award. He was barred from selling any of the property. But he did not comply with the terms of the award. He has also transferred 21 plots after filing of the suit. The plaintiff has clear cause of action for cancellation of documents and since the defendant No.1 committed fraud and for that the cause of action has been clearly stated in paragraph 12 of the plaint. The disputes referred to the Arbitrators by the majority directors against the defendant No.1 the plaintiff Housing Estate Ltd. was not a party in the arbitration agreement. Moreover, the alleged arbitration agreement concluded by an illegally obtained award dated 04.05.2006. The present suit has been filed on 05.10.2006. The proceeding was not pending at the time of institution of the suit. The Arbitration Miscellaneous Case No.764 of 2006 has been filed by Mr. Abdul Momin Chowdhury and other Directors for setting aside the award and this Miscellaneous Case is not an appeal and not continuation of the disputes and as such the suit is maintainable and the application under order VII rule 11(d) for rejection of the plaint of the suit is liable to be rejected.

6.     The learned Joint District Judge after hearing the said application by the order dated 06.11.2007 allowed the application under order VII rule 11(d) read with section 7 of the Arbitration Act, 2001 and rejected the plaint of the suit holding that in view of the provision of section 7 of Arbitration Act, 2001 the suit is barred.

7.     Against the said judgment and decree the plaintiff has preferred this appeal before this Court.

8.     Mr. Abdul Quayum, learned Advocate of the plaintiff appellant submits that the learned Joint District Judge erred in law in rejecting the plaint of the suit inasmuch as he failed to consider and appreciate the purport and scope of order VII rule 11 of the Code of Civil Procedure. He further submits that before filing written statement the rejection of the plaint on the ground of maintainability of the suit is not permissible in law. In this connection he refers the case of Ismat Zerin Khan –Vs-The World Bank and others, reported in 11 MLR (AD) Page-58. Mr. Quayum admitting the provision of section 7 of the Arbitration Act, 2001 submits that the subject matter of disputes which referred to the arbitration can not be the subject matter or issues in the present suit and same is barred under the said law. But he extraneously argues that the subject matter of dispute or issue with regard to the properties and plots of schedule-‘B’ to the plaint, which were not referred to the arbitration, in respect of those properties and plots and deeds of transfer the present suit is very much maintainable and the learned Joint District Judge in rejecting the plaint of the suit as a whole failed to consider and appreciate this legal aspect of the present suit. The learned Advocate drew our attention to schedule-‘B’ to the plaint, where description of the sale deeds and plot members, which sought to be cancelled have been mentioned and submits that from the said schedule it is evident that 77 sale deeds in respect of 77 plots have been mentioned but the arbitration took place with regard to 56 plots only and as such the sale deeds and plots which were not the subject matter or issue in arbitration proceeding, the suit is vary much maintainable in respect of those sale deeds and plots. In support of his contention he referred the case of Syed Masud Ali and others –Vs- Md. Asmatullah & others reported in 32 DLR (AD) page 39, where their lordships held that the plaintiffs suit to the extend of 2^nd schedule land was dismissed as not maintainable but they may proceed with regard to the 1^st schedule land if the plaintiff is so desired to proceed. He also refers the case of Balwant Singh–Vs- The State Bank of India and others, reported in AIR 1976, Punjab & Haryana, (Full Bench) Page-316 and the case of Mst. Chandani –Vs- Rajasthan State and others, reported in AIR 1962, Rajasthan Page-36. In those cases it was held that plaint disclosed cause of action in respect of particular claim against some of the defendants, the plaint can not be rejected in its entirety.

9.     On the other hand Mr. Shah Md. Khasruzzaman, learned Advocate appearing on behalf of the defendant respondent No.1 submits that the application under order VII rule 11 of the Code of Civil Procedure is very much maintainable before filing the written statement and he submits that at any stage of the suit the application under the said order is entertainable and maintainable. It is at all not necessary to wait for filing of the written statement and in support of his said contention he refers the case of Jobeda Khatun –Vs- Momtaz Begum and others reported in 45 DLR (AD) Page-31 and the case of P.R. Sukeshwala and another –Vs- Dr. Devadatta V.S. Kerkar and another reported in AIR 1995, Bombay, Page 227. Mr. Zaman further submits that the learned Joint District Judge considering the provision of section 7 of the Arbitration Act, 2001 rightly rejected the plaint of the suit holding that the suit is barred under the provision of section 7 of the Arbitration Act, 2001 and it is now settled principle of law that where the parties to a dispute have pursued arbitration proceeding resulting in an award, none of them can after the award is made, get rid of it by ignoring the same. He referring the paragraph-9 of the plaint argues that the plaintiff admitted that to resolve misunderstanding they referred the dispute to the arbitration of 2(two) gentlemen by a written reference dated 06.02.2006 and award has been passed on the selfsame disputes and thus the suit or the same issue/ dispute is not maintainable and the Trial Court did not commit any error or illegality in rejecting the plaint. He also submits that the suit can not be proceeded for part claim/claims by split up the plaint as argued by the learned Advocate of the appellant. Mr. Khasruzzaman, to substantiate his argument referred the case of Fisheries Research Institute and others –Vs- Mr. Bhuyain Ltd and others reported in 4 BLC, Page-126, the case of Gutte -Vs- Punno reported in AIR 1963, Madhya Prodash Page-96 and the case of Bangladesh Power Development Board and others –Vs- Md. Asaduzzaman Sikder reported in 8 MLR (AD), Page-241. In those cases it has been held that the subject matter of the arbitration proceeding, where ultimately an award was given, on the same cause of action, the Civil Suit is barred under the Arbitration Act and the plaint was rejected under Order VII Rule 11 of the Code of Civil Procedure.

10.   Mr.A.Z.M. Mohiuddin, the learned Advocate appearing for the respondent Nos. 2, 8, 10, 13, 17, 43 and 50, though the said respondents did not file any application under order VII rule 11 of the Code of Civil Procedure before the trial Court, adopting the legal submission of the learned Advocate of the respondent No.1 submits that Mr. Alhaj Abdul Momin Chowdhury, the Managing Director of the plaintiff company is the father of the defendant No.1 and the father and sons with an ill motive for illegal gain and to harass the purchaser defendants collusively instituted the present suit. He also refers the decisions cited by Mr. Zaman.

11.   Heard the learned Advocate of the respective parties, perused the impugned judgment and decree, the relevant documents before us.

12.   In view of the submission of the learned Advocate of the respective parties moot question before us is that whether the plaint of the present suit be rejected as a whole or the suit can be proceeded splitting up the plaint against some of the defendants, against whom the cause of action exist.

13.   The facts of the case of Syed Masud Ali and other versus Md. Asmatullah and others reported in 32 DLR (AD) Page-39, as referred by the learned Advocate of the plaintiff appellant, was that a Title Suit was filed in the Court of Munsif challenging the enrolment of Waqf in view of Sections 50 and 102 of the Waqf Ordinance, 1962. In the said suit the plaintiff divided the suit properties under two schedules and had claimed ownership and possession over both of them. With regard to the first schedule plaintiff sought a declaration of his title but with regard to the 2^nd schedule he prayed not only title to the land but for nullification of the enrolment made by the Administrator of Waqfs. The defendant entered appearance in the said suit and before filing written statement raised the question of competency of the suit and the trial Court and High Court Division in revision concurrently held against the defendant that is refused to reject the plaint. Appellate Division in appeal considered whether the said suit regarding 2^nd schedule land was competent. Appellate Division allowed the said appeal in part and set aside the decision of the High Court Division and trial Court and held to the effect:

“The plaintiff’s suit to the extent of 2^nd schedule land is dismissed as not maintainable but the suit may proceed with regard to the first schedule land of the plaint if the plaintiff so desire to proceed.”

14. In the case of Khandkar Abul Hussain –Vs- Government of the People’s Republic of Bangladesh and others reported in 54 DLR page 467, a Division Bench of the High Court Division has held:

“When two distinct causes founded on distinct and separate allegations are brought before the Court and if one cause is clearly barred under any provision of law the court is authorized under the law and can legitimately try other cause for granting relief which is not related to the barring provision”.

15. In the said case it has also been held:

”The Subordinate Judge could have split up the suit for trying the second cause which is for damages for defamatory statement and for implicating the plaintiff in a false case.”

16. In the case of Mst. Chandani -Vs- Rajasthan State and other, reported in AIR 1962 Rajasthan, Page-86 it has been held:

“The plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law; that rule, however, would be attracted into its full application where the suit as a whole would be so barred, and different considerations may reasonably arise where such a suit happens to be barred against some of the defendants but may still be good, against the others.”

17.   In view of the above proposition of law we have no hesitation to hold that a suit can be proceeded splitting up the plaint against those defendants, against whom the cause of action exist.

18.   In the instant case the plaintiff in the plaint admitted that with regard to 56 deeds of transfer and plots of schedule-‘B’ arbitration took place on the basis of a mutual agreement; an award has already been passed on those disputes/issues and challenging the said award Arbitration Miscellaneous Case No.764 of 2006 filed by the plaintiff before the learned District Judge, Dhaka is still pending. This admission of the plaintiff from a plain reading of the plaint appears to us that the suit with regard to 56 deeds of transfer and plots of schedule-‘B’ is barred by the provision of section 7 of the Arbitration Act, 2001. But 21 deeds out of 77 deeds of transfer of schedule-‘B’ to the plaint and the plots relating to said 21 sale deeds were not referred to the Arbitration tribunal as per the Arbitration agreement dated 06.02.2006 and the award dated 04.05.2006 has got no manner of relation/ connection with the said 21 deeds of transfer and as such the suit is very much maintainable with regard to those 21 deeds of transfer and plots. Thus the learned Joint District Judge erred in law in rejecting the plaint of the suit as a whole.

19.   The submission of Mr. Quayum relying the decision reported in 11 MLR (AD) Page-58 that the application under order 7 rule 11 is not maintainable before filing the written statement is not applicable in the instant case. In the case of Abdul Jalil and other -Vs- Islami Bank and Bangladesh reported in 20 BLD (AD) Page-278, it has been held:

“A plaint may be rejected under Order 7 Rule 11 of the Code merely on a plain reading of the plaint but in exceptional circumstances the Court may invoke its inherent jurisdiction and can throw the plaint out in limini. The plea of implied bar should be decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under section 151 of the Code.”

20.   From the said judgment it also appears to us that in the suit the defendant did not file any written statement and on behalf of the defendant the argument was made that written statement had not been filed by the defendant, despite that the Appellate Division has taken the above view. Further it appears from the case of Syed Masud Ali and other -Vs- Md. Asmatullah and others reported in 32 DLR(AD), Page-39, which was cited by Mr. Quayum, that in the said case before filing the written statement defendant raised the question of competency of the suit. As such the submission of Mr. Quayum that before filing the written statement the application under order 7 rules 11 (d) is not maintainable is not tenable in law.

21.   Having discussed as above we find merit in the appeal. The appeal is allowed-in-part. The judgment and decree dated 06.11.2007 is hereby modified to the effect that the suit will proceed with regard to 21 sale deeds and plots out of 77 sale deeds and plots of schedule-‘B’ to the plaint, which were not referred to the Arbitration tribunal as per agreement dated 06.02.2006 and not the subject matter and or issue of the award dated 04.05.2006. The plaintiff is at liberty to amend the plaint for getting appropriate relief from civil Court. However, there is no order as to costs.

        Send down the lower Court records at once.

Ed.

Quazi Nazrul Islam Vs. Bangladesh House Building Finance Corporation

Case No: Civil Appeal No. 28 of 1992 & Civil Appeal No. 29 1992

Judge: MH Rahman ,

Court: Appellate Division ,,

Advocate: Shaheed Alam ,Moksudur Rahman,,

Citation: 45 DLR (AD) (1993) 106

Case Year: 1993

Appellant: Quazi Nazrul Islam

Respondent: Bangladesh House Building Finance Corporation

Subject: Administrative Law,

Delivery Date: 1993-4-22

Quazi Nazrul Islam

Vs.

Bangladesh House Building Finance Corporation, 1993,

45 DLR (AD) (1993) 106

Supreme Court
Appellate Division
(Civil)

Present:
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J

Quazi Nazrul Islam …………..Appellant (In CA No. 28/92)
Bangladesh House Building Finance Corporation …………………..Appellants (In CA No. 29/92)

Vs.

Bangladesh House Building Finance Corporation.................Respondents (In CA No. 28/92)
Quazi Nazrul Islam................………………………….Respondent (In CA No. 29/92)

Judgment
April 22nd, 1993.

House Building Finance Corporation Service Regulation 1985
Regulation 27 (1)(e)
Charge— Plea of vagueness— The charge that the countersigning by a first class officer, like the law-officer, of a false report justifying issuing of the cheque was against office discipline cannot be said to be vague.

Lawyers Involved:
Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record- For the Appellant (In CA No. 28.92 & Respondent in CA No. 29/92)
Shaheed Alam, Advocate, instructed by Md. Sajjadul Haq, Advocate-on-record-For the Respondents (In CA No.28/29 & Appellants in CA No. 29192).
A Wadud Bhuiyan, Additional Attorney-General- Amicus curiae.

Civil Appeal No. 28 of 1992 & Civil Appeal No. 29 1992.
(From the Judgment and order dated September 19 1991 of the Administrative Appellate Tribunal passed in Administrative Tribunal Appeal No. 42 of 1991).

Judgment:
           MH Rahman J: These two appeals have arisen from the Judgment and order dated September 19, 1991 of the Administrative Appellate Tribunal passed in Appeal No. 42 of 1991 modifying the Judgment and order dated June 6, 1991 of the Administrative Tribunal in Administrative Tribunal Case No. 235 of 1988. Quazi Nazrul Islam, former Law Officer of the Bangladesh House Building Finance Corporation, is the appellant in Civil Appeal No. 28 of 1992, while the Corporation is the appellant in Civil Appeal No. 29 of 1992.

2. On June 14, 1987 charges were framed against the Law‑Officer that he approved payment of the 4th cheque in two loan cases, (1) D‑ 15966 Genl., (2) D‑15967 Genl., in favour of the borrower without evaluating the actual works and thereby he caused loss to the Corporation and that his conduct was violative of office discipline. In a departmental proceeding under Regulation 27(l) (e) of the Corporation's Service Regulations 1985 the Law‑Officer was found guilty. After serving a second show cause notice he was retired compulsorily by the Corporation's Order dated July 18, 1988.

3. After failing to get that order reviewed departmentally the Law‑Officer instituted the aforementioned case in the Administrative Tribunal, but without any success. The Administrative Appellate Tribunal allowed the appeal and held that from the charge sheet it was not clear for which specific charge the employee was responsible and ordered for a fresh inquiry on a fresh charge sheet for ascertaining the employee's specific guilt. It was further ordered that the employee be treated to be under suspension from the period of his compulsory retirement till final disposal of fresh inquiry proceeding.

4. The employee's contention is that the Administrative Appellate Tribunal acted without jurisdiction in directing the Corporation to hold a fresh inquiry. It is submitted that when the Appellate Tribunal found that he could not be awarded any punishment on the basis of the vague charge framed against him it ought to have allowed the appeal and set aside the order of the Corporation. It is contended that the Administrative Appellate Tribunal wrongly treated the Corporation as a subordinate Court, and, further it usurped the power and discretion of the Corporation by placing the appellant under suspension.

5. The Administrative Tribunal and the Administrative Appellate Tribunal have been established by the Administrative Tribunal Act 1980 (Act No. VII of 1981) with limited jurisdictions (See sections 4 and 6 of the Act) and limited power.

6. The Corporation did not ask for fresh inquiry. The Appellate Tribunal gratuitously granted a relief not asked for and in doing so it acted in excess of its jurisdiction. A power to remand or to direct fresh or further inquiry is to be specifically provided in the statute which sets up an appellate forum and confers jurisdiction on it. In this regard we may refer to section 107 of the Code of Civil Procedure 1908 or section 423 of the Code of Criminal Procedure, 1898.

7. In view of the above we uphold the employee's contentions that the Appellate Tribunal exceeded in its jurisdiction in ordering a fresh inquiry. However the employee's appeal will fail because of a more substantial question that has been raised by the Corporation in CA No. 29 of 1992 with regard to alleged vagueness of the charge.

8. The Appellate Tribunal found that though the charge‑sheet contained a reference to Regulation 27(1) (e) it did not clearly spell out which of the dim different kinds of offences mentioned there—breach of discipline, misconduct or insubordination—the employee committed in this case. It appears that the Appellate Tribunal failed to consider that the charge‑sheet also included the statement of allegations as well. In the statement of allegation it was clearly stated that the countersigning by a first class officer like the Law‑Officer of a false report prepared by the Corporation's Sub‑Assistant Engineer regarding the state of construction justifying issuance of the 4th cheque was against office discipline. We do not find the charge as vague. The delinquent, being the Law‑Officer, was conversant with the law applicable in his case.

9. Neither before the Inquiry Officer, nor in his reply to the second show cause notice, nor in his appeal before the Administrative Tribunal the employee made any grievance as to the alleged vagueness of the charge, or complained that because of such vagueness he could not represent his case or that he was prejudiced in his defence. On the other hand, in his reply to the charge he said he was a victim of circumstances and the evil design of the Sub‑Assistant Engineer and prayed that he might be exempted from the unintended lapses.

In view of the above, we dismiss the appeal of the employee, CA No. 28 of 1992 and allow that of the Corporation CA No. 29 of 1992. No. costs.
Ed.

Rabeya Khatoon Vs. Bangladesh

Case No: Civil Petition for Leave to Appeal No. 1228 of 2005.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,Mr. Zainul Abedin,,

Citation: 60 DLR (AD) (2008) 9

Case Year: 2008

Appellant: Rabeya Khatoon

Respondent: Bangladesh

Subject: Property Law,

Delivery Date: 2007-01-24

Rabeya Khatoon Vs. Bangladesh
60 DLR (AD) (2008) 9

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Rabeya Khatoon………….Petitioner
Vs.
Bangladesh, represented by the Deputy Commissioner and others......Respondents

Judgment
January 24, 2007.

The Constitution of the People’s Republic of Bangladesh, 1972
Article 42
The East Pakistan Ordinance, 1970 (XXIV of 1970)
Section 5

When the Government in exercise of power under section 5 of the Ordinance XXIV of 1970 issued notice for eviction of the petitioner as a trespasser in the disputed land, the suit for permanent injunction against the Government is not maintainable by such trespasser …………….(5)

Lawyers Involved:
Syed Mahbubar Rahman, Advocate-on-Record—For the Petitioner.
Zainul Abedin, Advocate-on-Record—For Respondent No. 1.
Not represented-Respondent Nos. 2-4.

Civil Petition for Leave to Appeal No. 1228 of 2005.
(From the judgment and order dated 3-4-2005 passed by the High Court Division in Civil Revision No. 2898 of 1999).

Judgment

Md. Tafazzul Islam J.- This petition for leave to appeal arises out of the judgment and order dated 3-4-2005 passed by a Single Bench of the High Court Division in Civil Revision No. 2898 of 1999 making the Rule absolute.

2. The petitioner filed Title Suit No. 41 of 1986 in the Court of learned Assistant Judge, Sadar, Jessore praying for permanent injunction and also for eviction of the defendant No. 3 from a portion of the suit land on the averments, inter alia, that the suit land was acquired by the Government to rehabilitate the refugees coming from India and thereafter, the Government allotted the suit land to one Rustom Ali who after constructing house started living therein; Rustam Ali then entered into a contract for sale of the suit land with one Abdul Jabber, the defendant No. 4, on 25-12-1969 and also handed over the possession of the suit land to him; Abdul Jabber then by a registered kabala executed and registered on 11-12-1983 transferred the suit land to the plaintiff at a consideration of Taka 12000; the plaintiff, after purchase, permitted defendant No. 4 and also his wife, the defendant No. 3, to stay in a portion of the suit land for some days; the defendant No. 4 subsequently divorced defendant No. 3 and lived separately with his new wife leaving defendant No. 3; the defendant No.3 then, with an ulterior motive, applied to the Government for allotment of the suit land in her favour whereupon the defendant No. 1, without holding any inquiry, served notice dated 19-1-1996 upon the plaintiff to hand over possession of the land to the Government but, however, in view of the objection filed by the plaintiff, the Government abstained from evicting the plaintiff from the suit land; the allotment of suit land in favour of Rustam Ali is genuine and proper; the Government is taking steps to evict the plaintiff from the suit land and hence the suit. The defendant Nos. 1 and 2, that is Deputy Commissioner, Jessore and Relief and Rehabilitation Officer, Jessore respectively, contested the suit and filed joint written statement contending that in view of the provisions under sections 14 and 14 Ka of Emergency Requisition and Acquisition Act 1948 and in the absence of seeking consequential relief of khas possession, the suit is not maintainable; the Government acquired the suit land along with other lands for rehabilitation of refugees coming from India and the relief and rehabilitation authority allotted the said land to refugees and also sanctioned loan of cash money to them for constructing house on the allotted land on certain conditions which, amongst others, provided that the land is not transferable before repayment of loan and getting final transfer deed as provided in Circular Nos. 414 dated 7-2-50 and Circular No. 215/RR dated 16-2-52; Rustam Ali in pursuance of the aforesaid circulars did not take possession of the suit land in Relief Block No. 160/41 and he also did not try to take any final transfer deed from the Government by paying all the dues and as a result suit land remained in khas possession of the Government; Asia Khatun, the defendant No. 3, used to live in the suit land and after she prayed for allotment of the suit land for her residential purpose, the Government, on inquiry, cancelled the temporary allotment made to Rustam Ali and allotted the suit land to her; the plaintiff did not buy the suit land on complying with provisions of law; after the defendant Nos. 1/2 directed the plaintiff to vacate the suit property she agreed to vacate the land on 12-2-86 and Dr. Masudur Rahman, Chairman of the Committee for Refugees, tried to mediate the matter but the plaintiff then filed the present suit. The defendant No.3 also filed another written statements more or less on the same line.

3. The learned Senior Assistant Judge, Jessore, on consideration of the materials on record by judgment and decree dated 20-4-1992 decreed the suit. Being aggrieved the plaintiff preferred Title Appeal No. 285 of 1992 while the defendant No. 3 also filed Title Appeal No. 151 of 1992 and the learned Additional District Judge, Jessore, after hearing the above appeals analogously, by judgment and decree dated 31-3-1996 dismissed both the appeals. The defendant No. 1 then moved the High Court Division and obtained Rule in Civil Revision No. 2898 of 1999 and after hearing the High Court Division made the Rule absolute directing the plaintiff petitioner to vacate the suit land and hand over the khas possession of the same to the respondent No. 1 within 60 days form the date of judgment.

4. We have heard the learned Counsel and perused the judgment of the High Court Division and other records.

5. As it appears, the High Court Division made the Rule absolute holding that admittedly the suit land was acquired by the Government for rehabilitation of the refugees who migrated to then East Pakistan from India and that the suit land was allotted to Rustom Ali and admittedly Rustom Ali, after getting allotment of the suit land, did not construct any homestead on the same and allowed the defendant No. 4 to possess the suit land on the strength of an agreement, Exhibit-2, in contravention of terms and conditions of the allotment, inasmuch as clause 5 of the letter of allotment, which has been marked as Exhibit-A3, provides that the allottees must maintain the houses at their own expenses whenever necessary and they may construct additional sheds according to their requirement within their compound at their own cost with previous permission of the collector but the refugees will have no right to sell or otherwise dispose of the land and buildings; however, if any refugee migrated at any time he will have to make over the land and buildings to the Collector who will dispose those on the advice of the Government; thus Exhibit -A3 shows that Rustom Ali had no right to make any transfer or sell the suit land in favour of Abdul Jabbar as admittedly, Rusatom Ali did not execute any sale deed in favour of Abdul Jabbar and the very claim of the plaintiff is that Abdul Jabbar, on the strength of a contract, entered into possession of the suit land and sold the suit land in favour of the plaintiff by the kabala deed dated 11-12-1983 though admittedly Abdul Jabbar did not acquire any title in the suit land on the basis of the agreement dated 25-12-1987 and so, by kabala deed dated 11-12-1983, the plaintiff did not acquire any title in the suit land; further admittedly the Government did not enter into any contact with the plaintiff and did not hand over possession of the suit land in favour of the plaintiff and accordingly the plaintiff is nothing but a trespasser upon the suit land on the strength of Exhibits 1 and 2; further in terms of section 5 of East Pakistan Ordinance No. XXIV of 1970 the Deputy Commissioner, Jessore, with a view to get recovery of possession of the suit land from the plaintiff and other unauthorised occupants, duly issued a notice which has been marked as Exhibit A5 and the plaintiff, although gave an undertaking by writing to hand over possession of the suit land in favour of the defendant, filed the suit and got a temporary injunction restraining the Government from taking over possession of the suit land; further the plaintiff, being an unauthorised occupant in the suit land, had also no locus standi to maintain a suit for permanent injunction against the defendants who in exercise of the power under section 5 of the Ordinance XXIV of 1970 duly issued notice and neither the learned Assistant Judge nor the learned Additional District Judge considered this aspect of the matter; it is the settled principle of law that a trespasser cannot maintain a suit for permanent injunction against a rightful owner; both the Courts below misread the provisions of Article 42 of the Constitution of the People's Republic of Bangladesh, inasmuch as the plaintiff, being a trespasser, cannot get protection of law to retain her ill possession in the suit land; the notice of eviction was served upon the plaintiff on 19-1-1986 whereupon the plaintiff undertook to hand over the possession of the suit land on 1-2-1986 but instead filed the instant suit on 4-2-1986 and it is after filing of the suit that she on 28-1-1987, got Exhibit 3 which is hit by the principle of lis pendens as provided in section 52 of the Transfer of Property Act; moreover, the defendant No. 1, after taking preliminary steps for eviction of the plaintiff, issued the notice vide Exhibit-A5 for eviction of an unauthorised occupant from government land and the right of the Government to evict the defendant cannot be defeated by creating a subsequent kabala from Rustom Ali whose allotment deed had already been cancelled by order dated 7-12-1986 and after the above cancellation, Rustom Ali had no right to execute and register any kabala in favour of the plaintiff.

6. We are of the view the High Court Division on proper consideration of the evidence and the materials on record arrived at a correct decision. The learned Counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference.
The petition is dismissed.
Ed.

Rabiullah and others Vs. Bangladesh and others [4 LNJ (2015) 390]

Case No: Writ Petition No. 5770 of 2010

Judge: Quazi Reza-Ul Hoque,

Court: High Court Division,,

Advocate: Mr. Abdul Wadud Bhuyian,Mr. Niazuddin,,

Citation: 4 LNJ (2015) 390

Case Year: 2015

Appellant: Rabiullah and others

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2014-10-23

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Quazi Reza-Ul Hoque, J,
And
Abu Taher Md. Saifur Rahman J.

Judgment on
23.10.2014

}
}
}
}

Rabiullah and others
. . . Petitioners
-Versus-
Bangladesh and others
. . .Respondents

Constitution of Bangladesh, 1972
Article 102
Immovable Property Acquisition Manual, 1997
Paragraphs 77 and 78
In the instant case, a few acres of land were acquired in two L.A. Case in favour of National Housing Authority but the case lands were neither utilized for the purpose for which the same were acquired nor utilized for any other purpose. The petitioners have been living since the time of their predecessors in the case lands peacefully for generations for about 100 years. The Government did not disturb the possession of the petitioners for the last 40 years. According to the direction of the Ministry of land the said lands were resumed in khas according to the provisions of paragraph 77 and 78 of the Immovable Property Acquisition Manual, 1977.
It is well settled that once a property is resumed that cannot be taken back by the requiring body, which the requiring body failed to utilize for more than 30(thirty) years for the purpose for which it was acquired, however, after resumption it is a discretion of the Government whether it would use it for any other public purpose or derequisition the property in favour of the original owners and/or the occupiers, which solely depends upon the magnanimity of the Government. The respondents are directed to dispose of the petitioner’s application dated 31.05.2009 within 03(three) months from the date of receipt of this judgment and order in accordance with law. . . . (4, 8, and 21)

Mr. Abdul Wadud Bhuyian, Advocate
. . . For the petitioners

Mr. Niazuddin, Advocate
.... For the respondent No.3

Writ Petition No. 5770 of 2010

JUDGMENT

Quazi Reza-Ul Hoque, J:

The instant Rule was issued on 25.07.2010 calling upon the respondents to show cause as to why they should not be directed to consider and dispose of the application dated 31.05.2009 made by the attorney of the constituted petitioners to respondent No. 1 for permanent settlement of the case lands in their favour expeditiously (annexure- C) and not to disturb the possession of the petitioners in the possession of the petitioners in the case lands till disposal of their application and/or pass such other or further order of orders passed as to this Court may seem fit and proper and supplementary obtain following terms Rule was issued on 22.03.2011 calling upon the respondents to show cause as to why the decision taken in the meeting dated 24.08.2010 of the respondent No. 1 not to resume the case lands (annexure- I) should not be declared to have been taken without lawful authority and is of no legal effect and as to why the respondents should not be directed to publishe Gazette Notification notifying the decision of the resumption of case land in khas of the Government and/or pass such other or further order or orders as to this Court may seem fit and proper.

The facts necessary for disposal of the Rule, as has been stated by the petitioner, in short, is that, the petitioners through their constituted attorney petitioner No. 21 submitted an application to respondent No. 1 on 20.5.2008 stating, inter alia, that 2(two) acres of C.S. Plot No. 3101 and 3102, 6.33 acres of land of 3103 and 3104 appertaining to C.S. Khatian No. 222, 1.54 acres of land of C.S. Plot No. 3123 and 3121 appertaining to C.S. Khatian No. 224 total land measuring 9.187 acres of Mouza Bawnia, thana Pallabi, District Dhaka along with other lands were acquired by the Government in L.A. Case No. 5 of 1972- 73. It was also stated that 0.76 acre of land of C.S. Plot No. 3103, 5.57 acres of C.S. Plot No. 3104 appertaining to C.S. Khatian No. 222 of Mouza Bawnia, 0.44 acres of land of C.S. Plot No. 3101 and 3105 appertaining to C.S. Khaitan No. 224 of the same Mouza, 1.92 acres of land of C.S. Plot No. 3106, 20 acre of C.S. Plot No. 3107, 0.22 acre of C.S. Plot 3223, 1.32 acre of C.S. Plot No. 3121 appertaining to C.S. Khatian No. 279 in total 11.33 acres all within Mouza Bawnia, Thana Keraniganj (Now Pallabi) District- Dhaka were owned by Kushai Matbar in whose name the said land was correctly recorded in C.S. record. Kushai Matbar died leaving only son Mohan Matbar who transferred the said land to Basanta Kumar Mallik and Tribhanga Mallik by registered deed. Basana Kumar died leaving only son Balai Chandra Mallik and Tribanga Mallik died leaving 3(three) sons namely Bramananda Mallik, Baliram, Mallik, Nipendra Mallik and wife Shayma Mallik, Balai Chandra Mallik and Bramananda Mallik transferred 0.76 acre of C.S. Plot No. 3103 and 5.57 acres of plot No. 3104 i.e. in total 6.33 acres to one Salim Miah by a registered sale deed dated 12.2.1947. Thereafter Salim Mia sold the total land of 8 (eight) Pakhi to Mohammad Ali by a registered deed dated 19.9.1958 and delivered possession to him. Mohan Matbar son of Kushai Matbar transferred 2.11 acres of land of C. S. Plot No. 3121 and 3123 to Ashraf Ali who transferred 1.27 acre of land form C.S. Plot Nos. 3121 and 3123 to Hariballav Biswas. Out of 1.27 acres of land purchased by him, Hariballav Biswas transferred 6156 decimals to Mohammad Ali, father of the some of the petitioners by two registered deeds dated 2.4.1960 and 2.4.2006 and handed over possession to him. Mohammad Ali died leaving some of the petitioners as his heirs who inherited the said lands and in the last city survey the case lands were recorded in the name of sons and daughters of Mohammad Ali.

It was also stated in the application that the Government acquired 11.33 acres of land of C.S. Plot Nos. 3103, 3104, 3105, 3106, 3107, 3121, in L.A. Case No. 5 of 1972-73. The petitioners filed application to Additional Deputy Commissioner (L.A.) to release the said land from acquisition but no action was taken. Then the petitioners were constrained to institute Title Suit No. 451 of 1978 in the Court of Senior Assistant Judge, Dhaka and the same was decreed on 22.5.1980, against which neither the concerned department, nor any other authority filed any appeal and further an order of temporary injunction was passed in their favour in respect of the said lands (annexures- A and B).

The petitioner Nos. 1 to 20 are the owners of 11.33 acres of lands of C.S. Plot No. 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3121 and 3123 and the case lands along with other lands were acquired in L.A. Case No. 5 of 1972-73 in favour of National Housing Authority but the case lands were neither utilised for the purpose for which the same were acquired, nor utilized for any other purpose. The petitioners have been living since the time of their predecessors in the case lands peacefully for generations for about 100 years. Although the case lands were acquired by the Government but possession of the case lands were not taken from the petitioners or their predecessors and the original owners did not receive compensation for the case lands. The Government did not disturb the possession of the petitioners for the last 40 years even after acquisition and hence there are homestead, Madrasha, Mondir, family graveyard in the case lands.

The petitioners have full ownership and possession in the said lands and the lands having been recorded in their names. They have mutated their names in respect of case lands and they have been paying rents, taxes and bills in respect thereof. Since the case lands were not utilized by the Government after acquisition the petitioners are entitled to have same released from acquisition in their favour. But in spite of repeated requests and applications the case lands were not released from acquisition. The petitioners have no lands in their names other than the lands acquired by the Government and so the case lands may be released from acquisition in their favour.

The constituted attorney of the petitioner Nos. 1 to 20 filed an application dated 31.05.2009 addressed to the Secretary, Ministry of Land informing that since the paternal property of the petitioners were not utilized for the purpose for which those were acquired and were resumed in khas he prayed for permanent settlement of the case lands in favour of the petitioners according to Government Rules and principles (annexure- C).

The Ministry of land by a Memo being No. i§x jx/n¡-10/A¢d/Y¡L¡-15/2008 dated 6.7.2009 informed the Deputy Commissioner, Dhaka that some lands of C.S. Plot Nos. 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3112 and 3123 were acquired in L.A. Case no. 5 of 1972-73 and some lands of C.S. Plot No. 3107 were acquired in L.A. Case No. 13 of 1959-60 which have not been utilized by the requiring body and are lying unutilized. In the said lands there is a mosque and a Madrasha in 0.33 acre of land in C.S. Plot No. 306, so the Deputy Commissioner will resume the land in khas in the light of paragraphs 77 and 78 of land Acquisition Manual 1997 and correct the records. So the Deputy Commissioner, Dhaka was requested to take necessary steps to resume the lands (annexure- C-1).

The Deputy Commissioner, Dhaka by Memo No. Sx fÐx Y¡x/Hm. H n¡/2010 dated 01.03.2010 informed the Secretary, Ministry of Land that the concerned Land Acquisition Officer, Kanungo and surveyor enquired into the lands and it was found on enquiry that 10.18 acres of land of C.S. Plot Nos. 3101, 3102,3103, 3104, 3105, 3121 and acquired in L.A. Case No. 05 of 1972-73 and of C.S. Plot Nos. 3106 and 3107 acquired in L.A. Case No. 13 of 1959-66 have remained unutilized and according to the direction of the Ministry of land by its Memo dated 27.4.2004 the said lands were resumed in khas according the provision of paragraph 77 and 78 of the immovable property acquisition Manual 1997 (annexure- D).

The case lands along with other lands were requisitioned under (Emergency) Acquisition of Property Act, 1948 and were acquired in aforesaid in exercise of the powers conferred by section 5(7) of the (Emergency) Requisition of Property Act by the Ministry of land Administration and land reforms by a Gazette Notification dated 15.10.1974 (annexure- E).

The petitioner Nos. 1 to 20 have appointed M.A. Awal, son of late Alhaj Abdur Rashid of 911/1 East Sheorapara Mirpur, Police Station Kafrul, District Dhaka, the petitioner No. 21, as their constituted Attorney by registered Irrevocable General Power of Attornies dated 18.5.2008, 2.12.2005, 6.8.2008, 10.4.2008, 17.2.2007 17.4.2007 to look after manage, develop, sell, to obtain release from acquisition, to enter in to agreement with the Housing Authority, to obtain plan from RAJUK to make construction, to file all kinds of cases, to sign Vakalatnama, to sign plaint on behalf of the petitioners, to sell, mortgage of the case lands in favour of any one on any condition, to obtain Income Tax clearance and to obtain clearance from other offices, to execute and register sale deeds on behalf of the petitioners, as if done by the petitioners themselves (annexures- F, F-1, F-2, F-3 and F-4).

The S.A. and R.S. recorded owners applied to the relevant department of the Government from time to time for release of the case land from acquisition in their favour. In view of such applications the Ministry of land asked the Deputy Commissioner, Dhaka to resume the acquired lands into khas of the Government and accordingly the Deputy Commissioner resumed the acquired land in khas and informed the Government about the action taken by the Deputy Commissioner, Dhaka.

Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the petitioners submits that the petitioners, being the owners and in possession of the case lands since the time of their predecessors for about 100 (one hundred) years and the case lands not having been utilized for the purpose for which the acquisition was made or for any other purpose and the case lands having been resumed in khas the respondents ought to be directed to consider the application of the petitioners for permanent settlement in their favour and take decision thereon according to Government rules and principles.

He further submitted that the case lands along with other lands having been acquired in favour of National Housing Authority by Gazette Notification dated 15.10.1974 and the case lands having remained unutilised for more than 40(forty) years and since acquisition the petitioners having their residential houses, mosque and Mandir in the case lands and living there for generations and the case lands having been resumed in khas by the Government and the application of the petitioners represented by their attorney for permanent settlement of the case lands in their favour being pending with the Government, the Government ought to be directed to consider their application and dispose of the same expeditiously accordingly to Government rules and principles.

He again submitted that the application of the attorney of the petitioners for permanent settlement according to the Government rules and principles being pending with the Government and the Ministry of land having asked the Deputy Commissioner, Dhaka to make inquiry and report, the petitioners have legitimate expectation that their application will be considered expeditiously and therefore, the respondents ought to be directed to consider their application for permanent settlement expeditiously for the ends of justice.

Mr. Bhuyian, further submitted that the petitioners from the time of their predecessors having been in possession of the case lands for about 100 (one hundred) years and the Government not having taken possession from them till now and their application through their constituted attorney for permanent settlement of the case land being pending for disposal the respondents ought to be directed not to disturb the possession of the petitioners till disposal of their application for settlement.

None appeared for the respondents to oppose the Rule.

On perusal of the submission of the learned Advocate for the petitioner and the annexed documents that the property was acquired vide L.A. Case No. 5 of 1972-73 and since the requiring body did not using for the purpose that has been acquired for as such, the property was resume by the Government which is evident from letter address to the Secretary Ministry of Land by the Deputy Commissioner, Dhaka by letter dated 01.03.2010 (annexure- D);

উপর্যুও্র বিষয় ও সূএসÛ স্মারকর প্রক্ষিত মহাদয়র সদয় অবগতির জন্য জানানা যাচ্ছ যে, অত্র কার্যালয়র সংশ্লিষ্ট অতিরিও্র ভূমি অধিগ্রহণ কর্মকর্তা, কানুনগা ও সার্ভয়ার সমন্বয় সরজমিন বর্ণিত জমি তদ¿¹ করছনz তদ¿¹ রিপার্টর প্রেক্ষিত দেখা যায় ০৫/৭২-৭৩ নং এল| এ| কেসভূও্র বাউনিয়া মৌজার সি|এস ৩১০১, ৩১০২, ৩১০৩, ৩১০৪, ৩১০৫, ৩১২১ ও ৩১২৩ নং দাগ এবং ১৩/৫৯-৬০ নং এল|এ| কেস বর্ণিত মো~জার সি|এস ৩১০৬ ও ৩১০৭ নং দাগ মোট ১০.১৮ একর জমি অব্যবহ্রত অবসÛায় আছz ভূমি ম¿»ণালয়র স্মারক নং-ভূঃম/শা-১০/অধি/ঢাকা-১৫/২০০৮-১০৮ তারিখ ২৭.০৪.২০০৯ খ্রিঃ এর নির্দশনামত “সÛাবর সম্পত্তি অধিগ্রহণ ম্যানুয়ল-১৯৯৭” ৭৭ ও ৭৮ নং অনুচ্ছদর বিধিমত উহা রিজিউম করা হয়

And the Ministry of Land in a meeting dated 07.11.2010 after issuance of the instant Rule (annexure- I) decided not to resume the land. And letter dated 18.06.2009 address to the Chairman National Housing Authority Dhaka written by the Deputy Commissioner, Dhaka (annexure- K) which also clearly reflects that since the property has been not utilised that the requiring body for more than 30(thirty) years so the National Housing Authority was directed to handover possession of the property to the Deputy Commissioner, Dhaka.

As it appears from the petition, unopposed by any of the respondents that the property although had been acquired vide L.A. Case No. 5 of 1972-73 but the possession has never been taken there are Mosque, Mondhir, High School, Primary School.

It is well settled that once a property is resume that cannot be taken back by the requiring body, which the requiring body failed to utilize for more than 30(thirty) years for the purpose for which it was acquired, however, after resumption it is a discretion of the Government whether it would use it for any other public purpose or derequisition the property in favour of the original owners and/or the occupiers, which solely depends upon the magnanimity of the Government. The respondents are directed to dispose of the petitioner’s application dated 31.05.2009 within 03(three) months from the date of receipt of this judgment and order in accordance with law.

With the above observations the Rule is disposed of.

Ed.

Radha Ballabh Sarkar Vs. Narayan Chandra Roy, 3 LNJ (2014) 518

Judge: A. K. M. Zahirul Hoque,

Court: High Court Division,,

Advocate: Mr. M. G. Mahmud,,

Citation: 3 LNJ (2014) 518

Case Year: 2014

Appellant: Radha Ballabh Sarkar

Respondent: Narayan Chandra Roy

Delivery Date: 2011-11-17

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

A. K. M. Zahirul Hoque, J.

Judgment on
17.11.2011

Radha Ballabh Sarkar being died his legal heirs, 1(a) Surashee Sarkar and others
. . . Petitioners
-Versus-
Narayan Chandra Roy
... Opposite Party

Small Cause Courts Act (IX of 1887)
Section 17
The decree in the SCC suit was executed through execution case and the possession of the suit land was restored to the petitioner through Court. The opposite party did not deposit the amount due under the decree either in the Court or to the petitioner and thereby violated the mandatory provision of section 17 of the Small Cause Courts Act. Then the opposite party filed a Miscellaneous Case for setting aside the exparte decree which was allowed illegally.

Where the petitioner obtained the decree in the SCC suit on 07.08.1985 and then on Execution Case No. 74 of 1985 for recovery of possession was preferred and in pursuance of bailiff of the Court the defendant opposite party vacated the suit property and on 17.08.1985 the petitioner restored his possession. Thereafter the opposite party filed the Miscellaneous Case No. 726 of 1985 in the said Court for setting aside the ex-parte decree which was already executed and before that defendant opposite party did not deposit the amount due under the decree neither before the Court nor to the plaintiff and therefore it violated the statutory mandatory provision of Section 17 of the Small Cause Courts Act. . . .(12)

It was the mandatory duty of the opposite party to deposit the amount due to him under the decree or any such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him at the time of application made by the Court. This mandatory provision of law was not followed by the opposite party in filing the application for set aside the miscellaneous application. It further appears that the decree which obtained by the petitioner in SCC suit and that decree has been executed through an execution case and restored his possession before filing the miscellaneous case therefore the subsequent miscellaneous case for setting aside the decree has become no force in the eye of law under the facts and circumstances of this case. . . .(13)

Considering the above facts and circumstances and relevant provision of law, I find substance in the submissions of the learned Advocate for the petitioner that the learned Subordinate Judge, 3^rd Court, Dhaka committed error of law in allowing the miscellaneous case and it further appears that the said miscellaneous case did not disclose any reason under what circumstances the miscellaneous application was allowed apparently the said impugned order is non speaking order which carries no value in the eye of law. . . .(14).

Mr. M. G. Mahmud, Advocate

. . . For the Petitioners

None appears

. . . For the Opposite Party

Civil Revision No. 6050 of 2001

JUDGMENT

A. K. M. Zahirul Hoque, J.

This rule was issued calling upon the opposite party to show cause as to why the impugned order dated 08.04.2001 passed by the Subordinate Judge, 3^rd Court, Dhaka in Miscellaneous Case No. 726 of 1983 allowing the Miscellaneous case by setting aside the judgment and decree dated 08.07.1983 passed exparte by the learned Subordinate Judge, 3^rd Court, Dhaka in S.C.C. Suit No. 62 of 1980 decreeing the suit should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

Facts, relevant for the purpose of disposal of the rule, in short, is that the petitioner as the plaintiff filed S. C. C Suit No. 62 of 1980 before the Subordinate Judge, 3^rd Court, Dhaka for ejectment of a monthly tenant.

The case of the plaintiff-petitioner as set out in the plaint in short is that the plaintiff purchased holding No. 135, Sakhari Bazar from Sreemati Bilash Manjuri Sur by a registered sale deed dated 31.05.1969 and after purchase the plaintiff mutated his name in the S. A. Khatian No. 2766. That the vendor of the plaintiff Sreemati Bilash Sur let out one room as mentioned in the schedule to the defendant at a monthly rent of Tk. 50.00. After purchase of the said holding the plaintiff on several occasions demanded rent of the tenanted room from the defendant and the defendant by raising false excuse did not pay rent to the plaintiff. The plaintiff filed Title Suit No. 43 of 1972 in the Court of 1^st Munsif, Dhaka against this defendant and Sreemati Bilash Manjuri Sur and others for permanent injunction restraining the defendant not to pay rent of his tenanted room to the aforesaid Sreemati Bilash Manjuri Sur or others and the said suit was decreed on 13.07.1972 against the defendant and others. Even after passing of the decree of permanent injunction the present opposite party did not care to pay rent of his tenanted room to the plaintiff. A notice under section 106 of the Transfer of Property Act was sent to the opposite party but he refused to accept it. The defendant is a defaulter and his tenancy has been terminated by serving the said notice. The plaintiff requires the room for his bonafide use and occupation and also for thorough repair. The plaintiff is entitled in equity and law to evict the defendant and get the room in his khass possession.

The defendant opposite party contested the case by filing a written statement deying all the material allegations made in the plaint. The case of the defendant opposite party in short is that the case is not maintain able in the present form, there is no cause of action and that the plaintiff has no title over the case property, the defendant is the tenant of Bilash Monjuri Sur and pays rent to her. The defendant is not a defaulter as a tenant. The case property is not required by the plaintiff as bonafide and as the suit will be dismissed.

The case was fixed for hearing on different dates and the defendant took time from the Court in several times. On 29.06.1985 on the prayer of the defendant time was allowed as a last chance with a cost of Tk. 70/- in favour of the plaintiff-petitioner. On 08.07.1985 the case was fixed for preemptory hearing and the learned Subordinate Judge decreed the suit exparte after hearing and considering the oral and documentary evidence.

The plaintiff-petitioner filed Execution Case No. 74 of 1985 for the recovery of possession of the suit property and on 17.08.1985 on the instruction of the Bailif of the Court the defendant vacated the suit property and possession was delivered to the plaintiff-petitioner by the Court.

Thereafter the defendant-opposite party filed Miscellaneous Case No. 726 of 1985 in the said Court to set aside the decree dated 17.08.1985 and the plaintiff-petitioner was contesting the Miscellaneous Case by filing a written objection. The plaintiff-petitioner as Advocate of District Court at Dhaka is an old man aged about 90 years fell sick in the month of February, 2001 and the Doctor advised and prescribed him to take complete bed rest.

Under such unavoidable circumstances the plaintiff executed a power of attorney appointing his son, Mr. Provat Kumar Sarker (Sunil) but due to unavoidable circumstances he could not appear before the Court and ultimately Miscellaneous case was allowed exparte in the absence of the plaintiff. Though, no deposit of the amount due under the decree was deposited in the Court by the opposite party.

Being aggrieved by and dissatisfied with the order dated 08.04.2001 passed by the learned Subordinate Judge, 3^rd Court, Dhaka in Miscellaneous Case No. 726 of 1985 the petitioner preferred this revisional application and obtained the present rule.

Mr. M. G. Mahmud (Shaheen), the learned Advocate appearing on behalf of the petitioner submits that since the opposite party did not deposit the amount as due under the decree neither above the Court nor to the plaintiff land lord and therefore the statutory mandatory provision of Section 17 of the Small Cause Courts Act has been violated but the learned court below failed to consider this legal aspect and thereby the impugned judgment is bad in law. He categorically submits that after obtaining decree from the Small Causes Court by the plaintiff petitioner then filed execution case and that decree has already been executed long before the impugned order and after execution of the decree in the execution case then the decree in SCC suit has been set aside by the learned court below is an infractous one which has no value in the eye of law but the learned court below who himself is the execution court has failed to consider this material as well as legal aspect and therefore it committed an error in passing the order. He lastly submits that the defendant opposite party willfully and deliverately was absent on the date of experte decree of the SCC suit while he was present and contested the SCC suit by filing written statement without denying the land lordship of the petitioner this material fact was not considered by the lower Court in passing the impugned order and therefore the impugned order is also against the material on record and the same is liable to be set aside.

No one appears for the opposite party to oppose the rule.

Heard the learned Advocate for the petitioners, perused the materials on record including the judgment and order itself.

It appears from the statement of the application under section 115 of the Code of Civil Procedure in where the petitioner obtained the decree in the SCC suit on 07.08.1985 and then on Execution Case No. 74 of 1985 for recovery of possession was preferred and in pursuance of bailiff of the Court the defendant opposite party vacated the suit property and on 17.08.1985 the petitioner restored his possession. Thereafter the opposite party filed the Miscellaneous Case No. 726 of 1985 in the said Court for setting aside the experte decree which was already executed and before that defendant opposite party did not deposit the amount due under the decree neither before the Court nor to the plaintiff and therefore it violated the statutory mandatory provision of Section 17 of the Small Cause Courts Act and the Section 17 of the Small Cause Courts Act is as under;

“Application of the Code of Civil Procedure-(1) [The procedure prescribed in the Code of Civil Procedure, 1908, (V of 1908) shall, save in so far is otherwise provided by that Code or by this Act], be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits.

Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give [such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed].

(2) Where a person has become liable as surety under the proviso to sub-section (1), the security may be realized in manner provided by section [145] of the Code of Civil Procedure. [1908].”

This above proviso shows that it was the mandatory duty of the opposite party to deposit the amount due to him under the decree or any such security for the performance of the decree or compliance with the judgment as the Court may on a previous application made by him at the time of application made by the Court. This mandatory provision of law was not followed by the opposite party in filing the application for set aside the miscellaneous application. It further appears that the decree which obtained by the petitioner in SCC suit and that decree has been executed through an execution case and restored his possession before filing the miscellaneous case therefore the subsequent miscellaneous case for setting aside the decree has become no force in the eye of law under the facts and circumstances of this case.

Considering the above facts and circumstances and relevant provision of law, I find substance in the submissions of the learned Advocate for the petitioner that the learned Subordinate Judge, 3^rd Court, Dhaka committed error of law in allowing the miscellaneous case and it further appears that the said miscellaneous case did not disclose any reason under what circumstances the miscellaneous application was allowed apparently the said impugned order is non speaking order which carries no value in the eye of law.

In view of the facts and circumstances and reasons thereof I am of the opinion that there is substance in the rule.

In the result, the rule is made absolute without any order as to costs. The impugned order dated 08.04.2001 passed by the Subordinate Judge, 3^rd Court, Dhaka in Miscellaneous Case No. 726 of 1983 is hereby set aside.

The order of Stay granted at the time of issuance of the Rule on 11.11.2001 is hereby vacated.

Send down a copy of the judgment to the Court below at once.

Ed.

Radha Krishna Jogani (Agarwalla) Vs. Dwarka Das Agarawalla & others

Case No: Civil Appeal No. 101 of 1903.

Judge: Fazle Munim ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,S. R. Pal ,,

Citation: 36 DLR (AD) (1984) 253

Case Year: 1984

Appellant: Radha Krishna Jogani (Agarwalla)

Respondent: Dwarka Das Agarawalla & others

Subject: Property Law,

Delivery Date: 1983-12-11

Radha Krishna Jogani (Agarwalla) Vs. Dwarka Das Agarawalla & others
36 DLR (AD) (1984) 253

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Radha Krishna Jogani (Agarwalla)…….............Appellant
Vs.
Dwarka Das Agarawalla & ors.......................Respondent

Judgment
December 11, 1983.

The Partnership Act, 1932 (IX of 1932)
Section 69 (1)(2)(3)
The Code of Civil Procedure, 1908 (V of 1908)
Order VI, rule 17

If a partner of an unregistered firm can maintain a suit for dissolution and accounts, his prayer for declaration of his share may as well be tried prior to dissolving the firm. Whatever bar was imposed by the provisions of sub-section (1) and (2) cannot stand in the way of combining the prayers as made by the appellant in his petition for amendment. No illegality committed by allowing the amendment. The suit is remanded to the trial Court for disposal taking fresh evidence as may be necessary due to such amendment……………(20)

The partnership firm is an unregistered one. It would, therefore, follow that in view of the provisions of sub-section (I) of section 69 the suit would prima facie appear to be barred there under. But proceeding to the provisions of sub-section (3) of section 69 such a suit does not seem to be affected by the bar imposed by sub-section (I) so as not be maintainable……………….(20)

Amendment in the plaint is not restricted at any stage of the proceeding, if the amendment sought for does not tend to change nature and character of the suit.

Cases Referred to-
Kasinath Das Vs. Sadasiv Patnaik (1893) ILR 20 Cal. 805; Ma Shwa Mye Vs. Maung Mo Hnaung AIR 1922 PC. 249; E.K.S Chettyar Firm Vs. Maung Min AIR 1933 Rang 247; Golam Hafez Mia Vs. Khadem Ali (1977) 29 DLR SC 311; Keramat Ali Vs. Md. Yunus (1963) 15 DLR SC 120; Md. Zahoor Ali Khan Vs Mst. Thakooranee 11 MIA 468; Abdul Rezzak Vs. Nashruddin Ahmed (1950-59) 63 CWN 766.

Lawyers Involved:
Syed Ishtiaq Ahmed, Advocate (Mahmudul Islam, Advocate with him) instructed by Kazi Ebadul Haque, Advocate-on-Record—For the Appellant.
S. R. Pal, Senior Advocate with him instructed by Syed Sakawat Ali, Advocate-on-Record—For respondent Nos. 1 & 2.

Civil Appeal No. 101 of 1903.
(From judgment and dated 15-03-83 passed by the High Court Division Jessore Bench in First Appeal No. 6 of 1980.)

Judgment

Fazle Munim CJ.-This appeal arises from a judgment of a Bench of the High Court Division at Jessore passed in First Appeal No. 6 of 1980 on 15 March, 1983.

2. Appellant who is the plaintiff instituted Title Suit No. 62 of 1973 for declaration of his right, title and interest in the suit property as well as the cinema shall along with its structures and business. Averments made in the plaint are as follows:
(a) The appellant with proforma-respondents 3 and 4 started a firm at Chuadanga in the name of Mahabir Cinema Company, each having one-third share, mainly to deal in showing of films and cinematograph;
(b) With the above purpose the firm acquired landed properties described in the schedule of the plaint for starting a cinema hall which was proposed to be named "Rupchhaya Cinema Hall" which was to be an associated firm of Mahabir Cinema Company. The landed properties were acquired in the name of Hajarilal, Manager of Mahabir Cinema Company, and Jatindra Lai Biswas, an employee of Mahabir Cinema Company.
(c) The cinema hall was constructed with the money of the appellant and respondents 3 and 4 and respondent 1 was taken in as working partner of Rupchhaya Cinema Hall and respondent 1 had no share in Mahabir Cinema Company or its properties.
(d) Taking advantage of temporary absence of the appellant, respondent 1 managed to create some false, forged and fabricated documents to deprive the appellant of his rights in suit properties and to usurp the same. Respondent 1 has only four annas share in the business of Rupchhaya Cinema Hall and has no interest in the suit properties.
(e) Appellant never sold his interest to anyone. By creating false documents respondent 1 in collusion with local influential persons is trying to dispossess the appellant and is not furnishing any accounts of the cinema business and of the income of other proper lies of Mahabir Cinema Company to the appellant since 28-8-73, and the appellant, therefore, filed the suit on 14-9-73.
He prayed, among others, for the following relief:
"(a) That the plaintiff's 4 annas title in the lands and structure as described below and in the cinema business be declared and the defendant be directed to furnish upto-date account of the cinema business since 28-8-1973."

3. Respondents No. 1 and predecessor of respondent No. 2 denied the material allegations in the plaint, it was asserted by them that whatever interest the appellant had in the partnership business was transferred by him to respondent Nos. 1 on 2 October 1961. Thereafter respondent No. 1 entered into new partnership with the predecessor of respondent No 2. Though the partnership was not registered, no specific objection was raised in the written statement that the suit was not maintainable in view of the provisions of section 69 of the Partnership Act. Such objection, when taken by respondent No. 1 after the evidence was closed and in course of the argument, was over-ruled by the trial Court. Findings of the trial Court were that the suit properties were acquired by the appellant and respondent Nos. 3 and 4 for the Mahabir Cinema Company of which they were partners; respondent No. 1 interpolated the deed of partnership dated 26-4-82 in order to prove his claim; respondent No. 1 created false document and the appellant did not transfer his interest in the firm in favour of respondent No. 1; and the appellant had existing interest in the suit properties including the Cinama hall and Cinama business. In First Appeal No. 6 of 1980 respondent Nos. 1 and 2 while challenging the finding in the trial court's judgment raised the bar of section 69 of the Partnership Act.

4. In order to over-come the bar of section 69 of the Partnership Act the appellant filed an application for amendment of the plaint by way of substituting the abovementioned relief quoted earlier in the judgment by the relief as follows:
"(a) A decree for dissolution of partnership firm "Mahabir Cinema Company" and "Rupchhaya Cinema Hall" be passed upon declaration of the plaintiff's one-fourth share in the said partnership firms and defendant No. 1 be directed to furnish upto-date account of the cinema business since 28-8-1973."

5. In the petition for amendment it was stated that the amendment was necessary to avoid multiplicity of proceedings, hardship of the parties and for complete adjudication of the dispute and determination of the real question in controversy. It was mentioned further that no new facts were being introduced but mere amendment of relief was being prayed for which was solely directed to remove the objection regarding the maintainability of the suit and that defendant-respondents would not in any way be prejudiced.

6. By their judgment dated 15-3-83 the learned Judges of the High Court Division rejected the application for amendment of the plaint, allowed the appeal and set aside the judgment and decree of the trial Court. It was held that the partnership being not a registered one, the suit as framed was barred under section 69 of the Partnership Act.

7. Grounds for refusal to allow amendment were that the proposed amendment changed the nature and character of the suit requiring the framing of fresh issue and permission to produce evidence by both parties to the suit so as to enable the Court to decide whether the requirements of law as laid down in section 44 of the Partnership Act for dissolution partnership were fulfilled or not.

8. Leave to appeal was granted by this Court on the contention of the plaintiff-appellant that the proposed amendment of the plaint for dissolution of partnership was considered necessary by him for removing the objection as to maintainability of the suit which was initially for a declaration of the share and accounts and the nature and character of the suit would not be changed, and that the High Court Division was not correct in rejecting the application for amendment Further, it was contended that the proper and indeed the only remedy available to partner in an unregistered firm or whose name does not appear on the Register of the Firms, to enforce his rights against the firm or any partner of the firm is by bringing a suit for the dissolution of the firm. Order 6, Rule 17, C.P.C. was relied upon in support of the contention. And further, insofar as the amendment was merely in respect of relief sought, the question of changing the nature and character of the suit did not arise.

9. Syed Ishtiaq Ahmed, Counsel for the appellants, referred 10 principles enunciated in the following decisions as to when amendmend of the plaint may be allowed and asserted that having regard to those principles it could not be held that the proposed amendment of the plaint in the present suit was not covered by them. The learned Counsel submitted that since no new fact were introduced in the plaint excepting amendment of the prayer portion therein which would neither change the nature and character of the suit nor prejudice the defendant-respondents the amendment should have been allowed. Further, there was no point taken over the proposed amendment but on the ground that it was sought for the purpose of circumventing the bar imposed by the provisions of section 69 of the Partnership Act. It was further pointed out by him that the proposed amendment praying for dissolution of the partnership firm was not in conflict with the prayer for declaration of the appellants' ¼th share in the firm. For, even when an order for dissolution is required to be made in a suit for dissolution, the declaration of partner's share therein and taking of accounts map be necessary, depending on the facts and circumstances of each case. He also mentioned that the findings arrived at by the trial court regarding the title and circumstances showing the respondents' conduct by way of attempting to deprive the appellant of his share in the firm would show that dissolution was the only consequence arising therefrom.

10. In view of the submissions made by the learned Counsel for the appellants, it is necessary to consider the decisions cited by him in their support. As to when an amendment of the plaint may be allowed by the Court one of the earliest pronouncements was made in the case of Kasinath Das Vs. Sadasiv Patnaik, (1893) ILR 20 Cal. 805 which is as follows:
"an amendment, so long as it does not alter the character of the suit, may be allowed at any time before judgment. The restriction is only as to the nature of the suit; the law prohibits any such amendment as would charge the fundamental character of the suit; for example, a plaint cannot be so amended as convert a claim based on contract into an action on tort. But an alteration in the relief does not alter the character of a suit."

11. As regards when the Court will exercise the discretion conferred upon it by the provisions of the Order 6, Rule 17, C.P.C. the Judicial Committee of the Privy Council bad the occasion to consider the limits on the Court's powers to amend the case of Ma Shwe Mya Vs. Maung Mo Hnaung, AIR 922 PC 249 corresponding to ILR 48 Cal. 832.
The relevant passage is as follows:
"All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment the subject matter of the suit."

12. The next case in which the extent of the Court's power to allow an amendment of the plaint was considered is the case E.K.S Chettyar Firm Vs. Maung Min Maung, AIR 1933 Rangoon 47. The learned Judge who delivered the judgment their in referred to the aforesaid cases and the observations quoted above and observed as follows:
"the one thing which must not be altered by an amendment is the fundamental character of the suit; and I understand that the fundamental character of a suit must refer to the foundation on which a suit is based and not the prayer in the plaint that determines its fundamental character."

13. In the case of Golam Hafez Mia, Vs. Khadem Ali Meah (1977) 29 DLR SC 311, this Court while considering whether the High Court Division was justified in refusing the plaintiff appellant's prayer for amendment of the plaint placed reliance on Keramat Ali Vs. Muhammad Yunus, 15 DLR SC 20 and observed:
"It is the consistent view of judicial authorities that amendments of the pleadings are allowed, even when a legal right had accrued to the ether party, if special circumstances of the case outweigh such consideration. In exercising this power, the Court would no doubt, be reluctant to allow such an amendment, which would have the effect of totally altering nature of the suit, or take sway a valuable right accrued by lapse of time, but where in the circumstances of the particular case, it would be plainly inequitable to refuse such a relief, the court will not hesitate to act."

14. These views were reiterated by this Court in Mrs. Nurun Nahar Vs. Mohd. Fazlur Rahman, 1979 BSCR 135. In addition, while referring to the provisions of Order 6, Rule 17 of the Code of Civil Procedure it was observed that "the Code has not set up any bar of limitation in allowing amendment of the pleadings. Nonetheless, it is now well settled that the question of delay is always considered as an important consideration in allowing or refusing amendment of the pleadings".

15. Mr. S. R. Pal, Counsel for the respondents, contended that the relief originally claimed by the appellant related to his claim of title in the partnership firm, but with the prayer made in the proposed amendment there would be change of relief. The proposed amendment would accordingly bring in the question of determining the existence or non-existence of the circumstances justifying the latter claim for the dissolution of the partnership firm. Fresh issues would require to be framed and this would lead to taking further evidence to see whether a case under section 44 of the Partnership Act was made out. According to him, therefore, the granting of the prayer for amendment of the plaint would change the nature and character of the suit. Thus the suit for declaration of title would be changed into a suit for dissolution of partnership firm. Secondly, Mr. Pal, referred to the provisions of section 69 of the Partnership Act which impose the bar against such suit. Thirdly, the appellant will not in any way be prejudiced if the proposed amendment was not allowed, and he could bring in a suit for dissolution even after the suit for declaration of his share and for taking accounts was disposed of. Mr. Pal relied on two decisions, namely, Keramat Ali Vs. Muhammad Yunus Haji (1963) 15 DLR 120 SC and Golam Hafez Mia Vs. Khadem Ali Meah, (1977) 29 DLR 3J1 SC.

16. In the first of the above cases mentioned by Mr. Pal, namely, Keramat Ali Vs. Muhammad Yunus Haji it was observed by Hammoodur Rahman, J., that "in exercising this power, on doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did, in the case of Md. Zahoor Ali Khan Vs. Mst. Thakooranee Rutta Koer, 11 MIA 468.

17. Quite rightly, whether the Court will allow amendment to the plaint or refuse to do so would depend upon the question whether the nature of the suit would be altered thereby. But when case is otherwise, such amendment would not be refused. The learned Judge himself while referring to the observations of the Judicial Committee said that "the Court had undoubtedly full power to allow such amendment even where a legal right had accrued by lapse of time if the special circumstances of the case out weigh such consideration". This case was considered by us in the two cases mentioned above and was also relied upon by Syed Ishtiaq Ahmed, Counsel for the appellant, in support of his client's prayer for allowing amendment of the plaint.

18. As regards the second case relied upon by Mr. Pal. nothing new has been said therein excepting what has been observed by the Judicial Committee of the Privy Council and the Supreme Court of Pakistan in respect of the amendment of the pleadings. Besides, this case has already been considered by us above and we did no find anything therein which is against allowing the prayer for amendment as made by the appellant in the present case.

19. The main controversy which has cropped up on the question of whether the proposed amendment would be allowed or not seems to be with regard to the interpretation of section 69 of the Partnership Act. Apparently, the proposed amendment of the plaint was necessary for avoiding multiplicity of proceedings and complete adjudication of the dispute between the parties on determination of real question in controversy. Since no new relieves appear to have been prayed for in the proposed amendment excepting the termination of the relationship of partners between the appellant and the respondents on declaration of the appellants share and taking of upto date accounts since the acquisition of the aforesaid share by the appellant, it is necessary to examine whether there is really any legal impediment against the prayer for dissolution of a partnership firm with a prayer for declaration for a partner's share therein and taking accounts. Provisions of section 69 which the respondents' Counsel referred to as offering such impediment may now, therefore, be considered. Section 69 of the Partnership Act runs as follows:
"69. Effect of Non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf a firm-against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm,
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect—
(a) the enforcement of any right to sue for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Insolvency (D) Act, 1909 or the Insolvency Act, 1920, realize the property of an insolvent partner."

20. There is no controversy that the partnership firm in the present case is a registered one. It would, therefore, follow that in view of the provisions of sub-section (1) of section 69 the suit would prima facie appear to be barred thereunder. But proceeding to the provisions of sub-section (3) of section 69 such a suit does not seem to be affected by the bar imposed by sub-section (1) so as not be maintainable. The provisions of the said sub-section lay down the rule that sub-sections (1) and (2) "shall not affect (a) the enforcement of any right to sue for the dissolution of the firm or for accounts of a dissolved firm, or any right or power to realize the property of a dissolved firm". Appellant's suit was originally for declaration of the shares and accounts. By amending the prayer he now also seeks dissolution of the firm. It is difficult to understand why the prayer for dissolution cannot proceed in combination with the original prayer in the plaint. Neither logic nor the reality inherent in the situation can be advanced as a ground against combination of such prayers in a single suit. If a partner of an unregistered firm can maintain a suit for dissolution and account, his prayer for declaration of his share may as well be tried prior to dissolving the firm. Taking accounts of the firm is also a concomitant of the relief claimed by him for dissolution of the firm. Whatever bar was imposed by the provisions of sub-section (1) and (2) cannot stand in, the way of combining the prayers as made by the appellant in his petition for amendment. This will find support from the case of Abdul Rezzak Vs Nashiruddin Ahmed, (1958-59; 63 CWN 766. The Court, while concurring with the views of different High Courts expressed in a series of cases, observed as follows:
"A suit for dissolution is obviously a comprehensive suit and the prayer for dissolution in such a suit is a compendious prayer, including within it, inter alia, also a prayer for accounts. That is clear from the nature of a suit for dissolution of a firm and also from the provisions of Order XX, rule 15 of the Code of Civil Procedure which provides for a particular type of decree or the particular relieves which may be given or ought to be given by the Court in such a suit. Clearly, also, a suit for dissolution and accounts is, in substance a combination of two suits or a combination of two relieves, one after the other and the question of the relief as to accounts really arises after the dissolution of that firm. Strictly speaking, therefore, the prayer for accounts in such a suit follows only on the dissolution of the firm by the decree of the Court and it is, therefore, in effect, a prayer for accounts of a dissolved firm and so comes also within the second part of clause (a) of sub-section (3) of sec. 69. The only effect again, of taking the other view, limiting the saving provision in the first part of clause (a) to a suit for dissolution of a firm without a prayer for accounts, would be to drive the plaintiff in such a suit to a second suit for accounts. That will be encouraging and leading to multiplicity of proceedings which should be avoided, whenever possible."

In view of the facts and circumstances of the case the appeal is allowed. The suit is remanded to the trial court which may, upon taking such fresh evidence as may be necessary dispose of the suit on the amended plaint. There will be no order as to costs.
Ed. .

Rafiqul Alam (Md) Vs. Mustafa Kamal, 42 DLR (AD) (1990) 137

Case No: Civil Appeal No. 82 of 1989

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: S.R. Pal,Mr. Fazlul Karim,,

Citation: 42 DLR (AD) (1990) 137

Case Year: 1990

Appellant: Rafiqul Alam

Respondent: Mustafa Kamal

Subject: Election Matter,

Delivery Date: 1990-2-8

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed, CJ.
M.H. Rahman, J.
A.T.M. Afzal, J.
Mustafa Kamal, J.
Latifur Rahman, J.

Rafiqul Alam (Md)
..………………… Appellant
Vs.
Mustafa Kamal and ors
..………………… Respondents

Judgment
February 8, 1990.

The Local Government (Union Parishad) Ordinance, 1983
Section 26
Section 26 of the UP Ordinance has put a clear bar to determination of an election dispute by any court except the Election Tribunal. Secondly, the whole scheme of the election law is such that no dispute as to election can be raised at any intermediate stage, but it may be raised only after conclusion of the whole election process. This means that Civil Court's jurisdiction is impliedly excluded; it is therefore clear that the learned Single Judge wrongly held the suit to be maintainable. The election held on the strength of the temporary injunction made in the suit got no leg to stand upon……………………(12)

Cases Referred to:
A.F.M. Shah Alam and others, 41 DLR (AD), 6; Secretary of State Vs. Mask & Co., 44 C.W.N. 709; Wolverhampton New Waterworks Co. Vs. Hawkesford (6 C.B.N.S. 336); Neville Vs. London Express Newspaper (1919A.C.368); Monir Ahmed Khan Vs. Bozlu Mia, 1988 BLD 241; Jalaluddin Ahmed Vs. Matiur Rahman Khan, 41 DLR, 77; Mostafa Kamal Vs. B.D. Habibullah & ors, 41 DLR 197; Habibur Rahman Vs. Election Commission, 40 DLR 459; Haji Sultan Ahmed Vs. Abdul Jalil, 40 DLR 512; N.P. Ponnu Swami Vs. Returning Officer, AIR 1952 S.C., 64; Mohinder Singh Vs. Chief Election Commissioner, AIR 1978 S.C. 851; Inderjit Barua Vs. Election Commission of India, 1984 SCR, 1911; A.K.M. Hasanuzzaman Vs. Election Commission 1 SCR 493; Election Commissioner of India Vs. Shivaji, 1984 1 Supreme Court Cases 277.

Lawyers Involved:
S.R. Pal, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record—For the Appellant.
Md. Fazlul Karim, Senior Advocate, instructed by M. Nowab Ali, Advocate-on-Record— For Respondent No.1
Not represented—Respondent Nos. 2 & 3.

Civil Appeal No. 82 of 1989.
(From the judgment and order dated 6.8.89 passed by the High Court Division, Rangpur Bench in Civil Revision Case No. 196 of 1988).

JUDGMENT

Shahabuddin Ahmed, CJ.

1. The question raised in this appeal by special leave is whether a civil suit is maintainable over an election dispute for the determination of which a separate forum has been created by a special law, namely the Local Government (Union Parishad) Ordinance, 1983, briefly the UP Ordinance. All the courts below namely, the Assistant Judge, the Additional District Judge and a Single Judge of the High Court Division answered the question is the affirmative. The learned counsel for the appellant contends that the concurrent decision of those courts has been made in disregard to the judgment of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68 and also in misconstruction of all relevant Election Laws, in particular, section 26 of the UP Ordinance, which provides that an election dispute may be determined only by an Election Petition before the Tribunal created thereunder.

2. Facts leading to this question are as follows:

An election was to be held on 10 February 1988 for the office of Chairman of Kolkonda Union Parishad of Gangachara Upazila, Dist-Rangpur and nomination papers were called for. Respondent-Plaintiff filed his nomination paper but it was rejected by the Returning Officer by an order dated 11 January 1988 on the ground that he was a defaulter for nonpayment of a loan taken by him from the Janata Bank; and there having been only one nomination paper left, Appellant-defendant was declared elected uncontested by the Returning Officer. Respondent preferred an appeal against the rejection of his nomination paper to the Nirbahi Officer, but the latter dismissed his appeal whereupon he moved the Election Commission. The Election Commission, by an order dated 16 January 1988, directed the Returning Officer to accept the nomination paper of the respondent. It is alleged that in spite of communication of this order by telephone, the Returning Officer did not accept the respondent's nomination paper, and consequently, the order of the Returning Officer declaring the appellant "elected uncontested" stood. This uncontested election was published in the Official Gazette but before he could enter upon his office, the respondent filed a suit, O.C. Suit No.4 of 1988, in the Court of Munsif (now Assistant Judge) of Gangachara Upazila challenging the appellant's uncontested election and prayed for cancellation of the un-contested election, for a direction upon the Returning Officer to accept his nomination paper and also for a mandatory injunction for holding an election afresh. The plaintiff-respondent simultaneously filed an application for temporary mandatory injunction for giving all those reliefs. The learned Assistant Judge, by her order dated 18 February, 1988 issued a temporary mandatory injunction granting these reliefs namely, the Returning Officer was asked to cancel the uncontested election of the appellant, to accept the plaintiff’s nomination paper and to hold an election accordingly. This order was challenged unsuccessfully before the District Judge in Misc. Appeal No.14 of 1988 and then in Civil Revision No.196 of 1988 before the High Court Division. In obedience to this temporary mandatory injunction the Returning Officer cancelled the appellant's election, accepted the plaintiff’s nomination paper and held a fresh election on 14 September 1989 in which the appellant also participated. Result of the election was that the appellant was defeated by the respondent who was declared elected and upon his election having been published in the Gazette he entered upon his office as Chairman of the Union Parishad on 16 November 1989. The appellant, however, challenged the High Court Division's order (dated 6 August 1989 in Civil Revision No. 196 of 1988) by which the trial Court's injunction was upheld, by filing a leave petition on which we granted leave to consider the question which relates only to the Civil Court's jurisdiction to entertain the suit itself.

3. Mr. S.R. Pal, learned counsel for the appellant, contends that participation in election not being a common law right but being a right created by a special statute which also provides for the remedy to an aggrieved person in connection with an election, only that remedy is available from the forum created by the special statute, and that jurisdiction of any civil Court to determine any dispute regarding election stood ousted by necessary implication. Learned counsel has referred to section 26 of the UP Ordinance which provides that no election shall be called in question except by an election-petition before the Tribunal constituted under the said ordinance. In this connection, the learned counsel has referred to a number of decisions, in particular, the decision of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68. The learned counsel contends further that not only the civil Court's jurisdiction is ousted in matters of election disputes, but also the extraordinary jurisdiction of the High Court Division under Article 102 of the Constitution is also ousted except on very limited grounds of total absence of jurisdiction or proved bad faith or malice in law. In conclusion, the learned counsel contends, the respondent's suit not being maintainable the impugned order of injunction is totally without jurisdiction and consequently the election held on the strength of the injunction order is void.

4. Mr. Fazlul Karim, learned counsel for the respondent has made utmost efforts to defend the decision of the learned Single Judge who held the suit maintainable. The learned counsel has tried to make a distinction between a pre-election matter and the actual election and has argued that rejection of nomination paper is a pre-election matter which does not constitute an "election dispute" and consequently, he has argued, even if the civil Court's jurisdiction is ousted in the case of an election dispute, it is not ousted in respect of a dispute relating to a pre-election matter. When his attention was drawn to the observation of this Court in the group-cases reported in 41 DLR (AD), page 68, where it was indicated that election is a process starting from the notification calling for nomination papers to the final declaration of result, the learned counsel has argued that there was no definite opinion made by this Court to this effect in the said decision.

5. The learned Single Judge, while considering whether the civil Court's jurisdiction stood ousted by section 26 of the UP Ordinance read with provisions thereof and the Rules made thereunder, has referred to a decision of the Privy Council in the case of Secretary of State Vs. Mask & Co., 44 C.W.N. 709 wherein it has been stated:

"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases whether the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

6. There are two parts of this observation of the Privy Council; the first one relates to exclusion of the jurisdiction either by express provision or by necessary implication, and the second part simply enables the court, even if it has got no jurisdiction over a matter, "to examine into cases" in order to see whether provisions of the law which excludes its jurisdiction, have been complied with or whether a statutory tribunal acted in conformity with the fundamental principles of judicial procedure. In the instant case, the learned Single Judge did not find anything to examine under the second part of the observation, obviously because there is no complaint that any provision of the Election Law has been violated by the Returning Officer 'or the Nirbahi Officer in exercising their power to reject the nomination paper. The learned Single Judge has relied upon the first part of the observation which provides that exclusion of jurisdiction can not be readily inferred except in the case of exclusion by express provision or by necessary implication. The learned Single Judge has come to the conclusion that there is no such ouster of jurisdiction in this case. But in the case in which the Privy Council made the observation it was found that jurisdiction of the Civil Court had been excluded by necessary implication contained in the relevant Act i.e. Sea Customs Act, 1878.

7. In that case the dispute related to an assessment of Customs duty on some betel nuts imported by the plaintiff-respondents from Java to British India in 1932. Section 182 of the Sea Customs Act gave power to Customs Officers "to confiscate, to increase the rate of duty or to penalise" in respect of certain assessment matters. An order of Custom officials under this section was appealable to the Collector of Customs or any other officer higher in rank, and the appellate order was made final, subject to any revision by the Government. In that case the plaintiff feeling aggrieved by an order of assessment made by the Assistant Collector preferred an appeal to the Collector who dismissed his appeal. He then filed a revisional application before the Central Government, who, however, did not interfere with the Collector's order. Thereupon he challenged the assessment by filing a suit in the court of Subordinate Judge. Maintainability of the suit was challenged by the defendant on the ground that the Sea Customs Act, which was a special statute, provided for a forum to redress grievances, if any, and when the decision of that forum was "final" under section 188, Civil Court's jurisdiction stood ousted by necessary implication. The trial Court upheld this contention and dismissed the suit, but the High Court in appeal took a different view and held that the Civil Court's jurisdiction was not ousted by the Sea Customs Act and held that the suit was maintainable. In appeal to the Judicial Committee of the Privy Council by the defendant, Secretary of State, the Privy Council found that the Civil Court's jurisdiction "stood excluded by necessary implication" and in that connection made the observation as already quoted.

8. In the instant case, though the learned Single Judge referred to this observation of the Privy Council, he did not enter into the facts of that case vis-a-vis the facts of the instant case in order to see whether jurisdiction of the Civil Court stood ousted by section 26 of the UP Ordinance which provides that "no election shall be called in question except by an election petition before the tribunal". In coming to the decision in the case of the Secretary of State Vs. Mask & Co., their Lordships of the Judicial Committee referred to the judgment of Willes, J in Wolverhampton New Waterworks Co. Vs. Hawkesford (6 C.B.N.S. 336) which was approved by the House of Lords in Neville Vs. London Express Newspaper (1919 A.C. 368), where it was observed:

"Where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it...............the party must adopt the form of remedy given by the statute".

9. Elections for Union Parishads are governed, as already indicated, by the UP Ordinance and the Rules made thereunder. These are special statutes covering the entire gamut of election matters. Right to seek election to a Union Parishad is neither a common law right, for the enforcement of which a Civil Court may come forward, nor is it a constitutional right, such as the Fundamental rights, as described in Chapter IV of our Constitution, for the enforcement of which writ jurisdiction can be invoked, except on a limited ground of coram non-judice or malice. As such, the right or liability created by the Election laws can be enforced only through the Tribunal which has also been created thereunder. It may be mentioned here that apart from this Court's decision in A.F.M. Shah Alam's case, different Benches of the High Court Division considered the question as to whether the Civil Court got jurisdiction to entertain any election dispute and most of these Benches answered the question in the negative. Some of these cases are Monir Ahmed Khan Vs. Bozlu Mia, 1988 BLD 241; Jalaluddin Ahmed Vs. Matiur Rahman Khan, 41 DLR, 77; Mostafa Kamal Vs. B.D. Habibullah & ors, 41 DLR 197. On the other hand, in two cases... Habibur Rahman Vs. Election Commission, 40 DLR 459 and Haji Sultan Ahmed Vs. Abdul Jalil, 40 DLR 512 the Benches answered the question in the affirmative. It is these two cases on which the learned Single Judge in the instant case placed reliance in coming to the conclusion that Civil Court's jurisdiction was not ousted. When there were conflicting decisions between Division Benches, the learned Single Judge should have referred the matter to a larger Bench instead of taking upon himself the responsibility to decide this important question of law.

10. As to the observation of this Court made in the cases of A.F.M. Shah Alam and others, (41 DLR (AD) 68, it appears that the learned Single Judge did not go through the judgment carefully, and consequently, he held the erroneous view that rejection of a nomination paper "is not a part of election but it is a pre-election dispute" and therefore, it is outside the scope of the election tribunal created under section 26 of the UP Ordinance. It was held by this Court there that election is not mere selection of a candidate by a single act of casting votes—i.e. the act of polling, but it is the entire procedure to be gone through to return a candidate to a representative office, such as a Union Parishad. This process consists of several stages starting from the notification of the Election authorities inviting nomination papers and ending with the declaration of result after the counting of ballot papers and publication of the result in Official Gazette. Publication of the result in the Gazette is indispensably necessary because unless it is made no candidate can go to the Tribunal challenging the election. In the said cases we also observed that the Election Commission got power both under the Constitution, in Article 119, and under section 24 of the UP Ordinance, to organize, conduct, supervise and hold an election and, that the Election Commission, by necessary implication, got power to intervene at any stage of the election process before the notification in the Gazette is published. In a narrow sense election, as described in the definition-clause of the UP Ordinance, means selection of a person on the result of a poll; but even without actual poll taking place a person may be declared elected uncontested. Therefore, for the purpose of determining an "election dispute" the term 'election' includes the whole election process passing through several stages and a dispute in any stage is an election dispute which can be challenged and determined only by an election petition after conclusion of the final stage of the process. Law does not contemplate intervention of any Court during any intermediate state of the election process. To allow court's intervention will hinder the process of election which is the basis for running a democratic institution. If the Civil Court entertains a suit and issues temporary injunction therein say, against acceptance or rejection of a nomination paper or against the counting of ballot papers or against the fixing of polling stations or their changes, the election schedule could not be maintained and the election will be postponed, in some cases for years together. That is why in matters of all elections, whether they relate to the Parliament or to local bodies, lower or higher in grade, court's intervention by temporary injunction is out of question.

11. The Indian Supreme Court took a rigid stand all through against interference in any intermediate stage of election by any court including the High Court in its writ jurisdiction. The Indian Supreme Court took the view that any dispute at any stage of the election process including the notification calling for nomination papers or rejection of a nomination paper should be postponed till conclusion of the election after which the election may be challenged on any ground including the ground for wrongful acceptance or rejection of a nomination paper. Reference may be made to the cases of N.P. Ponnu Swami Vs. Returning Officer, AIR 1952 S.C., 64; Mohinder Singh Vs. Chief Election Commissioner, AIR 1978 S.C. 851; Inderjit Barua Vs. Election Commission of India, 1984 SCR, 1911; A.KM. Hasanuzzaman Vs. Election Commission 1 SCR 493 and Election Commissioner of India Vs. Shivaji, 1984 1 Supreme Court Cases 277. In the last mentioned case the Supreme Court expressed their utter disapproval of some orders of the High Court of Bombay for interference under writ jurisdiction in the intermediary state of an election to Parliament and observed "we are very much disturbed by the manner in which the High Court of Bombay has interfered not once by twice with the process of election". In the cases of A.F.M. Shah Alam & others we hold that election was a long-drawn process and no interference with any stage of the process was warranted and observed: "a bare reading of the Ordinance and Rules will show that at no intermediate stage the legislature contemplated any proceeding which will unduly retard or obstruct the process of election".

12. The learned Single Judge erred in taking the narrow meaning of the word 'election', and one of his grounds for interference was that acceptance/ rejection of a nomination paper being a pre-election matter was not included in the definition of election and as such the bar to suit was not applicable to this case. Another ground taken by him for interference was that Election Commission's direction having been disobeyed by the Returning Officer, the plaintiff had no remedy against the Returning Officer's arbitrary order. Absence of a remedy, even if it were the case, cannot confer jurisdiction upon a Civil Court in a matter which is governed by a special statute which also provides for a special forum for seeking remedy. The learned Single Judge based his argument on the premises that dispute as to rejection of a nomination paper was a dispute civil in nature. But it must be kept in mind that Civil Court's jurisdiction, even on a civil matter, may be ousted by any express provision of law or by its necessary implication. Section 26 of the UP Ordinance has put a clear bar to determination of an election dispute by any court except the Election Tribunal. Secondly, the whole scheme of the election law is such that no dispute as to election can be raised at any intermediate stage, but it may be raised only after conclusion of the whole election process. This means that Civil Court's jurisdiction is impliedly excluded; it is therefore clear that the learned Single Judge wrongly held the suit to be maintainable. The suit in question was not maintainable and as such the election held on the strength of the temporary injunction made in the suit got no leg to stand upon. It may be mentioned here that even if this suit were maintainable, the learned Assistant Judge could not have granted the reliefs by her order of interim injunction. In fact she decreed the suit giving the plaintiff all the reliefs he prayed for—cancellation of the defendant's election, acceptance of the plaintiffs candidature and a direction for holding a fresh election. These reliefs are outside the ambit of a temporary injunction. The only relief she could have given, if at all, was to restrain the defendant from entering upon his office as Chairman pending disposal of the suit.

13. Now the question is whether the dismissal of the suit, along with cancellation of the respondent's election, will necessarily render the appellant's uncontested election valid and lawful. The learned Single Judge held that the uncontested election having been declared by the Returning Officer disobeying the Election Commission's direction to accept the respondent's nomination paper was illegal and void. Mr. S.R. Pal contends that this view was wrong mainly because the Election Commission’s direction was not disobeyed, as the declaration of the uncontested election was made before the Election Commission's order was communicated to him. But in view of the facts disclosed it is clearly found that the Election Commission's order was communicated by telephone on that very day, though a copy of the order was available a few days later. The Election Commission's power to give the direction has not been challenged, nor can it be, in view of its general power of conducting, supervising and holding elections in fair and proper manner. The uncontested election having been declared in disregard to the Election Commission's direction it can not be maintained as a fair and proper election. Mr. Pal next contends that there is no basis for the respondent's nomination as he is a defaulter according to his own statement that he had not repaid the loan but merely filed a suit. That suit (O.C. Suit No. 4 of 1982) is not as to default in payment of the loan but for a declaration that the order removing him from the service of the Bank was illegal. Mr. Pal contends that even if the said suit were decreed still the respondent would be disqualified under another provision of the disqualification clause in section 7(11)(e) of the UP Ordinance in that in the case of his reinstatement in his service he will incur the disqualification as to holding of an "office of profit" under a statutory authority controlled by the government. Be that as it may, this question is not before us in this appeal, which is limited to the question of Civil Court's jurisdiction over election disputes. What we find is that the uncontested election is not sustainable in law as it was declared in disregard to the Election Commission's order. This election must also go making the way clear for a fresh election giving opportunity to all parties interested in it.

14. The result, therefore, is that the appeal is allowed; the impugned order of the High Court Division upholding the order of the Assistant Judge granting temporary mandatory injunction is set aside and the suit is dismissed as not maintainable. Election of the respondent held on 14 September 1989 is set aside. So also is set aside the uncontested election of the appellant declared on 16 January 1988. A fresh poll is to be held for the Union Parishad. No cost.

Ed.

Raghunath Sarker Vs. Ramnath Sarker

Case No: Civil Appeal No. 37 of 2004.

Judge: Md. Hossan Ameen,

Court: Appellate Division ,,

Advocate: Mr. Bivash Chandra Biswas,Alhaj Giasuddin Ahmed,,

Citation: VI ADC (2009) 232

Case Year: 2009

Appellant: Raghunath Sarker

Respondent: Ramnath Sarker

Subject: Property Law,

Delivery Date: 2008-07-01

Raghunath Sarker Vs. Ramnath Sarker
VI ADC (2009) 232

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Hassan Ameen J

Raghunath Sarker. .............Appellant
Vs
Ramnath Sarker ...............Respondent

Judgment
July 1, 2008.

Involves a question of law to great public importance as to whether a Hindu governed by Dayabhaga school of law in Bangladesh could transfer his entire property only to one son depriving his other son. …. (5)

As regards the involvement of a question of law as alleged by the learned Advocate of the appellant as to whether a Hindu governed by Dayabhaga School of law in Bangladesh could transfer his entire properties only to one son depriving his other sons is an emotional proposition having no basis of law so far it relates to Hindu Dayabhaga school of law in Bangladesh. In support of his submissions, he referred to Section 357 of Mulla's Hindu Law 18th Edition by Satyajeet A Desai, which deals with what properties may be disposed off by gift, which runs as follows: A father under Dayabhaga law, may by gift, dispose of the whole of his property, whether ancestral or self-acquired, subject to the claims of those who are entitled to be maintained by him. The reason is that according to the Bengal School, 'where property is held by the father (as the head of the family), his issue have no legal claim upon him or the property except for their maintenance. He can dispose it off as he pleases, and they cannot require a partition. The sons have no ownership while the father is alive and free from defect. Upon his death, the property in the sons arises, and with it the right to a partition' (ss. 273, 275)3. A father under Mitakshara law has no such power over joint family property. He cannot dispose of it, not even his own interest therein, by gift. In certain cases, however, he has a special power, by virtue of his position as father, to dispose off, by gift, a small portion of joint family property (ss. 225 and 226). …. (9)

Lawyers Involved:
Alhaj Giasuddin Ahmed, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellant.
Bivash Chandra Biswas, Advocate-on-Record-For the Respondent.

Civil Appeal No. 37 of 2004.
(From the judgment and order dated 21-05-2001 passed by the High Court Division in Civil Revision No. 448 of 2000)

Judgment

Md. Hossan Ameen J. - This appeal, by way of leave, at the instance of the plaintiff, is directed against the judgment and order dated 21.5.2001 passed by the High Court Division discharging the rule in Civil Revision No. 448 of 2000 filed against the judgment and decree dated 25. 08. 1999 passed by Additional District Judge, 5th Court, Dhaka, in Title Appeal No. 333 of 1999 reversing those dated 31.05.1999 of the Assistant Judge, Savar Thana, Dhaka in Title Suit No. 181 of 1996 and remanding the suit for re-trial.

2. The appellant filed the suit for declaring that the 'Kha' schedule deed appearing in the plaint is void, collusive, illegal, fraudulent, forged and not binding upon the plaintiff and the plaintiffs case, in short, is that the lands mentioned in the ‘Kha’ schedule in the plaint belonged to Horidash Sarker, and that he lived in the 'Kha' schedule land along with his wife and 2 sons. The defendant with a view to grabbing the entire paternal properties erected the deed of gift No. 3028 dated 02.03.1987, one day the defendant brought a vendee to sell the land and then the plaintiff asked the defendant why he has brought the vendee without telling him about the transaction and the defendant disclosed that their father (Horidash) has gifted all his properties to him. The plaintiff thereafter obtained the certified copy of the deed of gift and filed the instant suit and the further case of the plaintiff is that the plaintiff and the defendant have been living in plot No.15 of Mazidia Mouza from life time of their father. The suit land is also being possessed by the plaintiff as he is the 50% owner of the 'Kha' schedule land mentioned in the plaint, the said deed of gift created cloud on his title and hence the plaintiff brought the suit for necessary relief in the matter.

3. The defendant contested the suit by filing written statements and denied all the material allegations made in the plaint and contended, inter alia, that the suit is not maintainable in its present form and it is barred by limitation and that Haridas lived with him and the relationship between the plaintiff and Haridas was not at all good and that Haridas gifted all his properties to him by the registered deed No. 3028 dated 02.03.1987; that the plaintiff has filed the suit by making false statements and the defendant accordingly prayed for dismissal of the suit.

4. The learned Assistant Judge, dismissed the suit and on appeal the same was allowed and the suit was remanded for retrial on the ground that the defendant has a case as it appears from Ext. G series that immediately after the alleged gift Ram Nath opened a separate Khatian after mutation. But the order sheets of the mutation proceeding was not available before the Assistant Judge to look into the matter whether in that proceeding Ram Nath notified his brother or whether kept the matter concealed. If after calling for the record or by perusing certified copy, it could be gathered that the plaintiff was notified a decision as regards limitation and acquiescence could have been taken. It is further found by the Additional District Judge, that the very important and primary evidence as regard limitation, plaintiffs knowledge and bonafide of the signature of Haridas (father) on the disputed gift were not available and that would be lawful and equitable to send this suit back for retrial setting aside the decision and giving the parties an opportunity to produce those evidences before the trial Court to ensue complete justice. It is further found by the Additional District Judge that the plaintiff at one stage stated that he came to know about the disputed deed some 2 days before filing the suit and the Assistant Judge, rightly resolved that within such a short period no such suit could be brought. There is no comment on the gift of deed by the Additional District Judge as to its genuineness. However, on revision, the order of remand was set aside and the suit was dismissed.

5. Al-haj Giasuddin Ahmed, the learned Advocate appearing for the appellant, submits that Haridas Sarker, father of the plaintiff allegedly made the gift of his property in favour of his one son defendant No.1 depriving the other, the plaintiff which is not permitted under the law and the instant case, involves a question of law to great public importance as to whether a Hindu governed by Dayabhaga school of law in Bangladesh could transfer his entire property only to one son depriving his other son.

6. We have the privilege to go through the judgment passed by the learned Assistant Judge as well as that of Additional District Judge in appeal with reference to the judgement so passed by the learned Judge of the High Court Division in revision.

7. Before entering into details, we may be permitted to state that the trial Court (Assistant Judge) found to have considered all the material facts relevant for disposal of the suit. As against this, the learned Additional District Judge-the Court of appeal set aside the judgment and decree so passed by the learned Assistant Judge on technical ground being persuaded by emotion. Be that as it may, it appears from the impugned judgment so passed by the learned Judge of the High Court Division in revision seems to us a practical one who found to have discussed the matter from every angles. It may be mentioned here that the learned Advocate for the appellant failed to point out any illegality or unsoundness of the findings of the learned Judge of the High Court Division in the matter of disposal of the revision.

8. However, it appears that the learned Advocate for the appellant, submits that Haridas Sarker, father of the plaintiff allegedly made the gift of the entire properties in favour of the son (defendant No. 1) depriving the other plaintiffs which is not permitted under the law and the instant case, he contends that involves a question of law to greater public importance as to whether a Hindu governed by Dayabhaga school of law in Bangladesh could transfer his entire properties only to one son depriving his other sons.

9. Bivas Chandra Biswas, the learned Advocate for the respondent, submits that the findings and decisions as arrived at by the High Court Division deserves no interference since the same has dealt with every aspect of the case. However, as regards the involvement of a question of law as alleged by the learned Advocate of the appellant as to whether a Hindu governed by Dayabhaga School of law in Bangladesh could transfer his entire properties only to one son depriving his other sons is an emotional proposition having no basis of law so far it relates to Hindu Dayabhaga school of law in Bangladesh. In support of his submissions, he referred to Section 357 of Mulla's Hindu Law 18th Edition by Satyajeet A Desai, which deals with what properties may be disposed off by gift, which runs as follows:
(1) * * *
(2) * * * *
(3) A father under Dayabhaga law, may by gift, dispose of the whole of his property, whether ancestral or self-acquired, subject to the claims of those who are entitled to be maintained by him.
The reason is that according to the Bengal School, 'where property is held by the father (as the head of the family), his issue have no legal claim upon him or the property except for their maintenance. He can dispose it off as he pleases, and they cannot require a partition. The sons have no ownership while the father is alive and free from defect. Upon his death, the property in the sons arises, and with it the right to a partition' (ss. 273, 275)3. A father under Mitakshara law has no such power over joint family property. He cannot dispose of it, not even his own interest therein, by gift. In certain cases, however, he has a special power, by virtue of his position as father, to dispose off, by gift, a small portion of joint family property (ss. 225 and 226)."

10. We have gone through the aforesaid provision of law and reasons to believe that the same supported the interest of the defendant-respondent and the learned Advocate for the appellant failed to counter act the same by producing any law/customs so applicable to the Hindus residing in Bangladesh governed by Dayabhaga school of law.

11. Regard being had to the above facts and circumstances of the case, we are of the opinion that the appeal has got no merit and accordingly, the same is dismissed without any order as to cost.
Ed.

Rahela Khatun and another Vs. Fayezuddin Shah

Case No: Civil Appeal No. 47 of 1985.

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: M. Golam Rabbani,,

Citation: 38 DLR (AD) (1986) 6

Case Year: 1986

Appellant: Rahela Khatun and another

Respondent: Fayezuddin Shah

Subject: Property Law,

Delivery Date: 1985-08-07

Rahela Khatun and another Vs. Fayezuddin Shah
38 DLR (AD) (1986) 6

Supreme Court
Appellate Division
(Civil)

Present:
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J

Rahela Khatun and another................................... Appellants
Vs
Fayezuddin Shah ..................................................Respondent

Judgment
August 7, 1985.

The Civil Procedure Code, 1908 (V of 1908)
Order XLI, r. 27

Additional evidence may be adduced on appeal for pronouncing the judgement or for any substantial cause. Duplicate rent receipt being found out during pendency of appeal and such receipt containing substantial cause for making decision in the suit shall have to be taken into evidence on appeal as additional evidence. The Appeal is allowed.

Cases Referred to-
Venkataramiah vs. Seethamma, AIR 1963 SC 1526.

Lawyers Involved:
M. Golam Rabbani, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record—For the Appellant.
Ex-Parte—For the Respondent.

Civil Appeal No. 47 of 1985.
(From this judgment and order dated 11.6.84 passed by the High Court Division, Rangpur Bench in Civil Revision No. 1244 of 1931).

Judgment

Badrul Haider Chowdhury J. - This appeal arises out of an order rejecting the appellants' prayer for taking additional evidence in a Miscellaneous Appeal under 41, rule 27 of the Code of Civil Procedure.

2. Leave was granted to consider the question whether the High Court Division mis-directed itself in holding that additional evidence would only be allowed if the Court was not able to pronounce judgment without the same. In other words whether the High Court Division considered the provision of Order 41, rule 27 C.P.C. correctly.

3. The respondent filed Miscellaneous Case No. 17 of 1978, in the Court of Sub-ordinate Judge, Bogra, under section 96 of State Acquisition and Tenancy Act for pre-empting lands purchased by the appellants vide registered sale deed dated 17.4.75 from one Abiran Bibi. The respondent claimed that was a co-sharer to the transferred holding.

4. The appellants resisted the pre-emption proceeding on the ground that the vendor Abiran Bibi had earlier mutated r name and got the holding separated vide Mutation Case No. 82 (IX) of 1965-66. As such the respondent was no longer a co-sharer in the transferred holding.

5. The appellants in order to prove that the original jama had already been separated the pre-emptor also paid rents accordingly with the knowledge of the mutation case, called for Register II from the local Tahshil Office. The local Assistant Tahshilder O.P.W. 2. proved the relevant entries. The respondent, however, withheld his rent receipts alleging that he did not pay any rent after the preparation of the revisional record of rights.

6. The learned Subordinate Judge held that although the entries in the Register II showed payment of rents at reduced rate following; he mutation case, the entries, however, did not show that such rents were paid by the respondent with the knowledge of the mutation case. The learned Subordinate Judge allowed the pre-emption case.

7. Thereafter, the appellants filed Miscellaneous Appeal No. 15 of 1981, in the Court of District Judge, Bogra and the same is pending for hearing. After filing the appeal, the appellants made search in the record room of the District Collectorate and found out the relevant duplicate carbon rent-receipts by which the respondent paid rents accordingly with the full knowledge of the mutation case. The appellants contended that the respondent withheld the original rent receipts at the time of trial falsely alleging that he did not pay any rent after the preparation of the revisional record of rights. The appellants thereafter filed an application under Order 41, rule 27 C.P.C. together with certified copies of the rent receipts of the pre-emptor respondent praying for taking them as additional evidence after re-calling the O.P.W. 2, the local Assistant Tahshilder.
The learned Additional District Judge rejected the prayer in one sentence "the ground for taking additional evidence is not satisfactory," by his order dated 7.8.81

8. In revision, the High Court Division considered the provision of Order 41, rule 27 C. P.C. and observed as under:

"Additional evidence cannot be taken unless the court finds that there is some inherent defect or lacuna in the evidence for which the court will not be able to pronounce its judgment properly."
9. The learned Single Judge took the view “it is purely discretion on the part of the Appellate Court to grant such an application for additional evidence, and the Court cannot allow to produce additional evidence to fill up the lacuna." Further, it was considered that the Court is able to pronounce judgment without additional evidence.

10. Mr. M. Golam Rabbani, the learned Counsel, appearing for the appellants, placed before us the petition that was filed for additional evidence. On perusal of the same it is clear that the appellants had given a challenge to the pre-emption proceeding on the ground that the jama had already been separated and the respondent was paying rents following the separation and mutation case. If it is established that there had been really separation of the jama then it is well settled that the preemption will not be allowed. The crux of the problem is that the appellants had found out the rent receipts in the Collectorate and obtained certified copies of the carbon rent receipts paid by the respondent. The appellants asked the Court to take this document as additional evidence which will bring the matter into sharp focus whether the jama had earlier been separated or not and the respondent, the pre-emptor, will have to face this challenge. But to deprive the appellants from proving this rent receipt of the respondent, which have been deliberately withheld by the respondent is to allow stealing a march by the respondent on the appellants. No Court adjudicating issues between the litigants can allow doing this and Order 41, rule 27 precisely provides for such situation.

11. The Indian Supreme Court took the view that additional evidence may be allowed not only to enable the court "to pronounce judgment but also for any other substantial cause," which may include when court considers in the interest of justice "that something remaining obscure should be filled up"(Venkataramiah vs. Seethamma. AIR 1963 SC 1526)

12. Rule 27(1)(b) speaks of for any other substantial cause". The court should allow additional evidence when the respondent denies that he paid rent at a reduced rate, consequent upon the separation of the jama and when the appellants have found out the rent receipt which belies the assertion of the respondent, a case is made out for adducing additional evidence within the meaning of "substantial cause" because as the Indian Supreme Court observed "that something remaining obscure should be filled up.''

13. In this view of the matter, there is no hesitation in saying that the Courts below erred in law in rejecting the prayer for additional evidence as prayed by the appellants. The appeal itself is still pending before the Appellate Court below. The appellants will now be allowed to adduce additional evidence as prayed for.
In the result, therefore, this appeal is allowed. The order of the High Court Division is hereby set aside. The appellants are given the liberty to adduce additional evidence before the Appellate Court below. No order as to costs.
Ed.

Rahima Akhter and others Vs. Asim Kumar Bose and others

Case No: Civil Appeal No. 117 of 1983.

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Syed Ishtiaq Ahmed,A.Y.Salehuzzaman,,

Citation: 40 DLR (AD) (1988) 23

Case Year: 1988

Appellant: Rahima Akhter and others

Respondent: Asim Kumar Bose and others

Subject: Property Law,

Delivery Date: 1984-04-10

Rahima Akhter and others Vs. Asim Kumar Bose and others
40 DLR (AD) (1988) 23

Supreme Court
Appellate Division
(Civil)

Present:
F. K. M. A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Syed Md. Mohsen Ali J

Rahima Akhter and others..............................................Appellants
Vs.
Asim Kumar Bose and others ........................................Respondents

Judgment
April 10, 1984.

The Bangladesh (Vesting of Property and Assets) Order, 1972 (P.O. No.29 of 1972)
Article 2 (1)
The Enemy Property (Continuance of Emergency Provisions) (Repeal) Ordinance, 1974 (Ord. No. 4 of 1974)
Section 3
The Enemy Property (Continuance of Emergency Provisions) (Repeal) (Amendment) Ordinance, 1976 (Ordinance No. 93 of 1976)
Section 2

The contract was made by Hemnalini and she died within a year of the agreement. Plaintiff was asking for the kabala and since the property became enemy property the defendants, the heirs of Hemnalini could not execute, kabala. It was only the Custodian who could do it inasmuch as he stepped into the shoes of the owner itself with the power of transfer available to him on and from 2.1.65 which was conferred by amendment. In Ordinance No. 93 of 1976 power was given to the Government to dispose of the property and nothing was left for making the settlement that such property was to be preserved till conclusion of peace. Since the Government did not cancel the contract by declaring it against the public interest the contract is alive and the machinery has been provided by the Defence of Pakistan Ordinance namely, the preservation of jurisdiction of Civil Court (section 16). The Civil Court had exercised its jurisdiction and passed the decree and the Custodian who stepped into the shoes of the original owner e.g. Hemnalini has power to transfer this property by way of executing kabala. ………………….(40, 42 & 44)

Cases Referred to-
Benoy Bhusan Bardhan Vs. The Sub-Divisional Officer, Brahmanbaria & another 30 DLR SC 139, RJ. Reuter Co. Ltd. vs. Fred Mulhens 1953 All E.R. 1160.

Lawyers Involved:
Khondker Mahbubuddin Ahmed, Senior Advocate (Mahbubey Alam, Advocate with him), instructed by Syed Sakhawat Ali, Advocate-on-Record-For the appellants.
Syed Ishtiaq Ahmed, Senior Advocate, B.B. Roy Chowdhury, Senior Advocate instructed by Shamsul Haque Siddique, Advocate-on-Record- For the Respondents 1 & 3.
A.Y.Salehuzzaman, Deputy Attorney-General instructed by B. Hossain, Advocate-on- Record -For the Respondents 2 & 4.
Date of hearing: March 29 and April 10, 1984

Civil Appeal No. 117 of 1983.
(From the Judgement and order dated 23-5-83 passed by the High Court Division, Dhaka in F.A. No. 44 1981.)

Judgment

Badrul Haider Chowdhury.- This appeal by special leave is directed against the judgment and order of the High Court Division in F. A. No. 42 of 1981.

2. The predecessor of the appellants filed Title Suit No. 31 of 1977 in the 5th Court of Subordinate Judge, Dhaka for specific performance of contract stating, inter alia, that there was an agreement between S.M. Ismail on the one hand and Hemnalini Basu (the predecessor of respondents 1 and 2) on the other hand. The Bainapatra is dated 13.4.63. The stipulation was that the property will be sold to S.M. Ismail at a consideration of Tk. 35, 0007 Hemnalini received Tk. 27,400/- as advance and executed a bainapatra and delivered possession of the property. It was stipulated that Hemnalini would execute a registered deed of sale within 4 years and give the possession of the rest of the property at that time. Hemnalini died on 12.6.64 leaving respondent Asim Kumar Basu as her heir. The plaintiff’s case was that he approached Hemnalini during her life time for execution of the deed and after her death the plaintiff approached respondent No.1 but his request was not complied with. Thereafter the Defence of Pakistan Rules, 1965 was promulgated and the property had been vested to the Custodian of the Enemy Property. The plaintiff impleaded in this suit the Asstt Custodian of Enemy Property as defendant No. 2 and S.M. Ismail filed the suit on 8.1.70 being T.S. No. 2 of 1970 and the Assistant Custodian filed written statement on 29.4.70 and another additional written statement was filed on 10.7.72. Asim, respondent No. 1 also filed a written statement on 14.9.72.

3. The defence case was that there was no contract for sale between Hemnalini and S.M. Ismail and no bainapatra was executed by her and the Bainapatra was forged and fraudulent nor Ismail was given possession of the suit property though he trespassed in the suit property in August, 19-70. The suit property became enemy property and the Custodian had leased out to several persons on monthly rent and they were in possession.

4. In the meantime on 12.7.72 one Sova Rani filed application stating that she is one of the two daughters of Hemnalini Basu as such she, as an heir, inherited the estate of late Hemnalini. On court's order Sova Rani was added as the defendant in the suit as defendant No.3 but she did not file any written statement.

5. In compliance with the provisions of P.O. 142 of 1972 Government of Bangladesh was added as defendant No. 4 and it adopted written statement filed by the Assistant Custodian of Enemy Property.

6. The trial court decreed the suit holding that the Bainapatra was a genuine document and the appellants were in possession of the part of the suit property and the suit is maintainable inasmuch as heirs of Hemnalini and the Custodian were impleaded. Further the suit was not time-barred.

7. This decree was challenged in F.A. No. 44 of 1981 by Asim Kumar and Sova Rani. The Custodian, however, did not file any appeal and at the time of hearing the Assistant Custodian entered appearance and supported the appeal of the respondents 1 and 2.

8. The High Court Division considered that the question of possession was not material in this case and considered that the document in question namely Bainapatra was a genuine one. The High Court Division negatived the argument that the suit was time-barred and found the suit having been filed on 8.1.70, was within three years from the date of the Bainapatra and therefore the suit was not time-barred. The High Court Division repelled the contention as to the nature of the property whether it was stridhan or not inasmuch as there was no evidence as to when Hemnalini acquired the property. The learned Judges considered that prime question was that after vesting of the property in the custody of the Enemy Property, whether the defendant Nos. 1 and 3 could execute a kabala as heirs of Hemnalini.

9. The High Court Division further noticed that though assistant custodian did not challenge the decree by himself whether in view of the provision of Defence of Pakistan Rules and the General Notification No. 1199 dated 3.12.65 and paragraph 4 of the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order the contract could be specifically performed and then answered the query by observing:
“All legal right and obligations that followed from the agreement in question were snapped.”
Next the High Court Division considered "that such property could only be transferred with the approval of the Govt. but as the Government did not enter into any agreement with the plaintiff and the suit property being an enemy property vested in the Custodian of Enemy Property, the Government cannot be compelled by a decree of the court to perform the contract which had become frustrated after the war broke out". In this view of the matter the appeal was allowed and the judgment and decree of the trial court were set aside.

10. The heirs of the plaintiff are the appellants before this Court: Mr. Khondker Mahbubuddin Ahmed canvassed that the High Court Division having found that the contract was genuine and the suit was not time-barred ought to have upheld the decree specially when the Custodian of the Enemy Property did not challenge the decree but by reasoning which is not tenable in law, the High Court Division had reversed the judgment and order of the trial court and set aside the decree.

11. Mr. Syed Ishtiaq Ahmed appearing for the respondent contended that in view of Defence of Pakistan Rules and the East Pakistan Enemy Property (Lands and Buildings) Disposal Order, 1966 such decree is inexecutable and the custodian cannot transfer any property. The High Court Division rightly set aside the decree inasmuch as the supervening impossibility had frustrated the contract.

12. We have heard able arguments of both sides and we shall presently consider the legal consequence from such contract. The contract has been found genuine. Question of nature of the property whether Stridhan or not does not merit consideration inasmuch as the issue was not raised before in the pleading and therefore the contention does not merit any consideration. The relevant provision of rule 182, as it stood on the promulgation on the 6th of September, 1965, was to the following effect;
"182. Collection of debt of enemy firms and custody of property.-(1) With a view to preventing the payment of money to an enemy firm, and preserving enemy property in contemplation of arrangement to be made at the conclusion of peace, the Central Government may appoint a Custodian of Enemy Property for Pakistan and one or more Deputy Custodian or Assistant Custodian of Enemy Property for such local areas as may be prescribed and may by order-
(a) * * *
(b) Vest or provide for vesting in the prescribed Custodian such enemy property as may be prescribed.
* * *
This rule was amended on 2.11.65 wherein the word “management” in the sub-heading was substituted in place of the word "custody" and the expression "preserving enemy property in contemplation of arrangement to be made at the conclusion of peace" was replaced by an expression viz "to provide for the administration and disposal by way of transfer or otherwise of enemy property or matters concerned therewith or incidental thereto." (emphasis added).
Syed Ishtiaq Ahmed argued that notwithstanding the amendment the Legislature's intendment seems to be the preservation of enemy property till conclusion of peace and the right, title and interest of the enemy was not sought to be extinguished in any way. Reliance was placed on a decision Benoy Bhusan Bardhan Vs. The Sub-Divisional Officer, Brahmanbaria & another 30 DLR SC 139. Mr. Ahmed argued that Hemnalini might have executed a bainapatra but the property having been vested in the custodian as enemy property the contract has become frustrated and the High Court Division rightly took the view in this factor.

13. Mr. Khondker Mahbubuddin Ahmed traced the history of this Legislation and contended that though in 1974 the Legislature passed two Ordinances, namely Ordinance IV of 1974 and Ordinance No. V of 1974, subsequently the Government acquired the power for disposal by Acts 92 and 93 of 1976 and the evolution of law was not traced in the case of Benoy Bhusan 30 DLR (SC) 139 and as such the decision is not a good law.

14. President's Order No. 29 of, 1972 (dated 26th March, 1972) provided that all properties and assets which were vested in the Government of Pakistan or any officer appointed by such Government or were vested in or managed by any Board constituted by or under any law or in the former Government of East Pakistan shall be deemed to have been vested in the Government of Bangladesh on and from 26th day of March, 1971. The property thus vested in the Custodian, Enemy Property under the Defence of Pakistan Rules had now vested by operation of law in the Government of Bangladesh.

15. The suit was filed in 1970 and the plaintiff made the Custodian as defendant No. 2 and again made Government of Bangladesh also as defendant No. 4 upon promulgation of P.O. 142 of 1972 which stipulated that no suit for specific performance of contract could be instituted without impleading the Govt. which is a necessary party.

16. The Enemy Property (Continuance of Emergency Provisions) (Repeal) Ordinance 1974, Ordinance No. IV of 1974 was promulgated on 23.3.74 and it repealed the Enemy Property (Continuance of Emergency Provision) Ordinance No.1 of 1969 and the saving section 3 reads as follows:
"3. Saving.-(1) notwithstanding the repeal of said Ordinance and anything contained in any other law for the time being in force, on such repeal-(a)all enemy property vested in the Custodian of Enemy Property appointed under the provisions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government.
(b) All enemy firms the trade or business of which was being carried on by any person or Board authorised under the provisions of the Defence of Pakistan Rules continued in force by the said Ordinance shall vest in the Government.
Explanation (i) The terms "Enemy Property" and "Enemy firms" used in this section shall be deemed to have the same meaning as assigned to those terms in the Defence of Pakistan Rules continued in force by the said Ordinance,
(ii) In this sub-section, "Custodian of Enemy Property" includes an Additional Custodian of Enemy Property, a Deputy Custodian of Enemy Property and an Assistant Custodian of Enemy Property appointed under the Defence of Pakistan Rules continued in force by the said ordinance."
By this Ordinance, therefore, the property vested unmistakably in the Government. In passing it may be noticed that Ordinance No.I of 1969 purported to continue certain provisions of the Defence of Pakistan Rules and the Ordinance ceased to have effect.

17. Rule 182 was also continued in force. This was repealed by Ordinance IV of 1974 as mentioned above. Therefore, the position emerges that the Enemy Property which previously vested in the Custodian or Assistant Custodian now vested by section 3 in the Government notwithstanding repeal of Ordinance I of 1969.

18. On the same day i.e. on 22.3.74 another Ordinance was promulgated namely, the Vested and Non-Resident Property Administration Ordinance, 1974 being Ordinance V of 1974 and vested property was defined as "any property which has vested in the Government under section 3(1)of the Enemy Property(Continuance of Emergency Provision) (Repeal) Ordinance, 1974 (Ordinance IV of 1974). It provided in Part III "that the vested property shall be under the charge of a Committee and the Committee shall take such measures as may be necessary for the good management and protection of such property for the assertion of title thereto." It provided "that the Committee shall not be entitled to transfer except by monthly or annual lease any vested property.”Similar provision was made in Part V insofar as non-resident property is concerned but in section 10 a non-resident has been given a right to dispose of such property by exchange or gift, subject to certain condition and upon disposition the property shall cease to vest in the Committee (Section 10, sub-section 3). Thus for the first time a legislative change has taken place and a non-resident had also been given a right as to its property to dispose of his property. This Ordinance No. V was converted into an Act being Act XLVI of 1974.19. Next on 27.11.76 the Vested and Non-Resident Property (Administration) (Repeal) Ordinance, 1976 (Ordinance, No. 92 of 1976) was promulgated. It repealed the Vested and Non-Resident Property Administration Act, 1974 (Act XLVI of 1974).

20. On the same day the Enemy Property Continuance and Emergency Provision (Repeal) (Amendment) Ordinance, 1976 being Ordinance 93 of 1976 was promulgated with retrospective effect from 23rd March, 1974. It amended section 3 of the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act of 1974. Act XLV of 1974 which was previously Ordinance No. IV of 1974. It may be noted that enactment repealed the Ordinance No.1 of 1969 and by section 3 vested the property in the Government which earlier vested in the Custodian and now by Ordinance 93 of 1976 in further amendment section 3 of Act XLV of 1974 and added-
"and shall be administered, controlled, nagged and disposed of by transfer or otherwise by the Government or any such officer or authority as the Government may direct".
By this amendment of section 3 of Act XLV of 1974 the entire complexion was changed and power was given for disposal or transfer to the Government vide section 2 of Ordinance 93 of 1976.

21. The legislative process now becomes clear that when initially the Defence of Pakistan Rules attended for the preservation of the property till conclusion of peace the Government changed the policy as early as on 2.11.65 and deleted the portion "Preserving Enemy Property in contemplation of arrangement to be made at the conclusion of peace," and replaced it by new provision "to provide for the administration and disposal by way of transfer connected therewith or incidentally thereto". Subsequently by P.O. 29 of 1972 such property was vested in the Govt. of Bangladesh and though under the Ordinance Nos. 4 & 5 of 1974 the property was kept in charge of the Committee and the non-resident could dispose of his property subject to the approval of the Committee, this process was done away with in 1976 when the Government took power for transfer and disposal of such property.

22. In this legal background, this is too late say that the Government has no power of transfer and disposal of the Enemy Property in pursuance of direction of court. From the above analysis of the legal position it is clear that the property is now vested in the Government and the Assistant Custodian has no claim in respect of such property. The High Court Division had fallen into an error in its conclusion when it says:
"Custodian's power to transfer enemy property could only be exercised with the approval of the Government. As the Government had not entered into any agreement with the plaintiff and the suit property being an enemy property vested in the Custodian of enemy property the Government cannot be compelled by a decree of the Court to perform the contract which had become frustrated after the war broke out between the country where the property was situated and the enemy country where the owner or owners were permanently residing."
With respect, the reason is fallacious in the setting of legal position. The Custodian is no more in control and management of the property. It is the Government since 1976. Plaintiff made the Government a party to the suit. He is seeking to enforce the contract which he entered into with Hemnalini. She having died her sons and daughters being residents of enemy country, the property was taken over as enemy property by the Custodian. When the suit was filed in 1970 the property was vested in the Custodian no doubt but by the provision of P, O. No. 29 of 1972 this had vested in the Government.

23. In 1974 the non-resident could dispose of his property with the permission of the Committee. The contractual power of non-resident was not taken away. The only condition was that has to be done subject to the approval of the Committee.

24. In 1976 this Committee had been done away with and it is only Govt. which appeared in the scene as a sole authority and got power of disposal and transfer by Ordinance 93 of 1976.

25. It is not correct to say that the agreement had been frustrated. The agreement was very much alive and power of transfer was available even with Custodian subject to certain condition and this power was vested in the Committee and the nonresident was given the right to transfer his property with the approval of the Committee and thereafter Government took up the power of control and management and disposal and transfer. When this power is available there is no reason to hold that the contract entered into by Hemnalini could not be specifically performed. If it had been the position that the contract should not be enforced in public interest the Government would have said so and specific power was available to the Government in Rules 176 and 178 of the Defence of Pakistan Rules for cancelling such contract in public interest. That was not done nor such position was taken by the Government. In this view of the matter, therefore, the opinion of the High Court Division appears to be in error.

26. Now the question of Benoy Bhusan, it is submitted, that exposition of law that has been made in that decision was not strictly necessary for the disposal of that case. In that case a notice was served upon the appellant that he was in continuous occupation of certain property without any document which belonged to Indian nationals and to show cause why the said property should not be declared as enemy property. The appellant took the stand that a portion of property which stood in the name of Paresh Chandra Bardhan was acquired on the basis of valid document and a portion of the property standing in the name of Chittotosh Bardhan were debuttor property and the appellant being the elder member of the family managed the said property for the Sheba Puja etc. and the remaining property were ejmali properties and he being a co-sharer was in lawful possession of such property.

27. The Sub-Divisional Officer, Brahmanbaria repelled the contention of the appellant and declared the property as enemy property and recommended the lease of the said land to other persons.

28. The appellant challenged the order before the High Court in writ jurisdiction and the learned Judges of the High Court Division disposed of by the judgment on 1.12.69 holding that the respondents were authorised to exercise necessary powers for taking possession of the disputed land upon partition which were enemy properties and directed the Custodian to look into the court's order properly and leave out the legitimate share of the appellant in the properties before taking possession of the shares of Indian nationals.

29. The appellant then obtained special leave which was granted by the Supreme Court of Pakistan to consider the question whether the Sub-Divisional Officer was competent to exercise the power of the Assistant Custodian and whether the Custodian could take possession of any ejmali land of which the appellant was in possession as a co-sharer without partition of the said land.

30. In this setting of facts the Appellate Division came to the conclusion that as a co-owner of an undivided share of the joint land has his right, title and interest" in every grain of soil constituting the joint land and cannot therefore be said to be in unlawful possession of such land, even if he is in exclusive possession thereof" and it was further held that the Custodian of Enemy Property representing the share of enemy owner cannot go into possession of the joint land by dispossessing the co-sharer in possession of the said land without partitioning the same according to law. In this view of the matter the appeal was allowed and the impugned orders were declared to have been taken without lawful authority.

31. In passing, in the judgment considerable portion was devoted as to the nature of rule 182 and the legal consequences therefrom. The entire judgment was based upon a philosophy in paragraph 21 of the judgment which reads as follows:
"21. The predominant idea behind taking over and management of the enemy property under these Emergency Legislations seems to have been the prevention of certain acts which might be prejudicial to the war efforts of the Government of Pakistan and the preservation of the said properties during the continuance of the war. It seems to have been never in the contemplation of the Government of the country to acquire for itself any beneficial interest in the properties of an individual enemy owner under the said provisions. But to protect and manage the properties, so that the rightful owners could get back their properties on the conclusion of peace".

32. It was observed that right, title and interest was not sought to be extinguished in any way but were purported to be placed instead in temporary hibernation so to say during the continuance of the emergency (para 20). It was concluded that -
"subsisting interest of the enemy owner is high lighted by the provision of clause (iv) of paragraph 3 which authorised the Custodian concerned to incur expenditure for the maintenance of the individual enemy owner or his family (para 20),"
With respect this was the misreading of law itself. Paragraph (iv) of section 3 reads as under;
"(iv) The Custodian, where the enemy property belongs to an individual enemy subject or any individual resident in enemy territory may incur such expenditure out of the income of the property as he considers necessary or expedient for the maintenance of individual or of his family in Pakistan." (emphasis added).
The Custodian will spend money for the maintenance of individuals or his family in Pakistan. He is not to spend money for the maintenance of individual enemy subject, who is resident of enemy country. The law was considered in a particular perspective and this is evident from another paragraph where it is said:
"The main object of the said rule does not appear to have been affected in any way by such amendment as the relevant provisions of the Enemy Property (Custody and Administration) Order, 1965 which declared and specified the rights of the Custodian in whom the properties of an enemy had vested did not undergo any alteration whatsoever."
The Defence of Pakistan Rules promulgated in pursuance of the Defence of Pakistan Ordinance are in the nature of subordinate legislation. It is well settled that subordinate legislation cannot override the provision of the parent Legislation. The initial difference between subordinate legislation and the Statute lies in the fact that a subordinate law making object is bound by the terms and its gated or derived authority and courts of law as a rule will not give effect to the rules etc. made unless satisfied that all the conditions precedent to making of the rules have been led. Even in paragraph 3(1) it is stated that the Custodian shall have all the rights, powers, duties and liabilities of the owner of such property.

33. Mr. Ishtiaq Ahmed could not deny that the obligation of the owner Hemnalini had devolved upon the Custodian when her property was vested in. There is no law which bars the Custodian for executing then & executing the document which the owner had she been alive would have to do so in pursuance of the decree of court.

34. Repeated emphasis was given in the judgment of Benoy Bhusan [30 DLR (SC) 139] that" these were essentially temporary measures for the management and protection of properties.”(para 20) and notwithstanding the amendment of 2.11.65 which radically altered the law the judgment rests primarily on the expression "preserving Enemy Property in contemplation of arrangement to be made at the conclusion of the peace."

35. This expression was borrowed from the English enactment. Section 7 of Trading with Enemy Act, 1939. That section so far as is relevant provides as under:
"With a view to preventing the payment of money to enemies and of preserving enemy property in contemplation of arrangements to be made at the conclusion of peace."
The argument of the defendant in the case of RJ. Reuter Co. Ltd. Vs. Ferd Mulhens 1953 All E.R. 1160 centred on the opening word and it was contended 'that the, section contemplated for preserving the Enemy Property in contemplation of arrangement to be made at the conclusion of peace, and the argument was that the purported transfer of shares and the selling of trade mark were not contemplated by the section. The question before the court was whether it conferred the power of sale or transfer.

36. The Court of Appeal repelled the contention and concluded that the opening words of the section ought not to have treated as having restricted effect for which Counsel for the defendant contended. It was observed that the Trading with the Enemy (Amendment) Act, 1914 contained a preamble substantially in the same form as the opening words of section 7 of the Act of 1939. In Re Munster, Russel J. explained the expression and said (1920) Ch. 278:
"In my judgment the Act of 1914 does not depart from these principles or involve confiscation. Under its provisions, the enemy is deprived of beneficial ownership during the war. And the Custodian after the termination of the war is bound to deal with it in such manner as his Majesty (keeping no doubt, in view the arrangements made at the conclusion of peace) may by Order in Council direct...The phraseology used in the preamble and in section 5 establishes in my judgment that, pending its disposition by Order in Council after the determination of the war, the property is removed from the control and from the beneficial ownership of the enemy. At the termination of the war fresh consideration will arise: and whether the enemy will recover, and to what extent he will recover, the beneficial ownership will depend upon the arrangements made at the conclusion of peace... and upon the terms of any Order in Council, made, 1 doubt not, with those arrangements in view under section 5".(emphasis added.)
Birkett LJ. observed in 1953 All E.R. (2) page 1182:
"when the transfer of the trade marks was made in June, 1951, it was made in the light of the provisions of the Act of 1949 and the statutory instrument, and the "arrangement to be made .at the conclusion of peace referred to in Section 7 of the Act of 1939 could never be such arrangements as would contemplate the handing back of the enemy property to German nationals."
Romer LJ. observed at page 1184:
"Throughout the war and down to the date of the assignment the defendants possessed no legal rights in relation either to the registered trade marks or in relation to the good will of the business which they had formerly carried on here. All that the defendants did possess was the suspended beneficial interest to which 1 have already referred and if the Custodian had the power to sell the trade marks and good will, as in my judgment, he had even, this somewhat shadowy interest was automatically destroyed by the exercise of that power and nothing survived to the defendants."
That was the law in England on the phraseology that "the arrangement would be made, at the conclusion of peace." But in our law Rule 182 was amended on 2.11.65 and the expression "preserving the enemy property in contemplation of arrangement to be made at the conclusion of peace" "was replaced by new expression" and to provide for the Administration and disposal by way of transfer or otherwise of enemy property or matter concerned therewith or incidental thereto, (emphasis added).

37. With this amendment the entire complexion was changed. The emphasis was no more for preservation of enemy property but it was for disposal by way of transfer. In the words of Romer L.J. whatever shadowy interest the defendant had that was automatically destroyed by the exercise of the powers by the Custodian and nothing survived to the defendants. The decision in Benoy Bhusan's case unfortunately having noticed the amendment in rule 182 observed-"the main object of the said rule does not appear to have been affected in any way by such amendment as the relevant provision of the Enemy Property (Custody and Administration) Order, 1965 which declared and specified right of the Custodian in whom the properties of any enemy had vested did not undergo any alteration whatsoever", to say the least, with respect, is misreading of the law itself. A case is an authority for the principle laid down in the facts and circumstances of that case and in Benoy Bhusan's case the question was whether the Custodian could take possession of the share of the enemy in a property without effecting partition. While in this judgment no opinion is expressed on the decision in Benoy Bhusan (30 DLR (S.C) 139) on its facts of that case the exposition of law detailed from paragraphs 11 to 21 do not commend to us as correct exposition of law namely Defence of Pakistan Rules read with paragraph 4(7) of the Enemy Property (Custody and Registration) Order, 1965 and Act Nos. 45, 46 of 1974 and Ordinance Nos. 92 and 93 of 1976.

38. Even in England it was held that whatever shadowy interest left for the defendant was; automatically destroyed by the exercise of that power conferred by section 7 and nothing survived to the defendants. How an argument could be built up in view of the amendment dated 2.11.65 to say "that it seems to have been never in contemplation of the Government of the country to acquire for itself any beneficial interest of the property of an individual enemy owner under the said provision, but to project and manage the property so that owners get back their properties at the conclusion of peace" appears to be unfounded in law inasmuch as there was no contemplation of any arrangement to be made at the conclusion of peace wheres by amendment it provided for the admission, disposal and by way of transfer or otherwise the enemy property.

39. In this view of the matter the argument of respondent that the Custodian could not execute kabala in question in pursuance of the decree of performance of the contract does not hold good. The High Court Division unfortunately had into this very error and took the view that neither could the Custodian execute the document nor could the Government do so inasmuch as the Government was not party to the contract.

40. The contract was made by Hemnalini and she died within a year of the agreement. Plaintiff was asking for the kabala and since the property became enemy property the defendants, the heirs of Hemnalini could not execute, kabala. It was only the Custodian who could do it inasmuch as he stepped into the shoes of the owner itself with the power of transfer available to him on and from 2.1.65 which was conferred by amendment itself.

41. The subsequent legislations were not noticed in the case of Benoy Bhusan in 30 DLR at page 139. Neither Ordinance I of 1969 was noticed which continued rule 182 nor P.O.29 of 1972 was policed which vested such property in the Government Further the Ordinance IV of 1974 and V of 1974 which were repealed and re-enacted being Act Nos. 45 and 46 of 1974 when a non resident could dispose of his property with the approval of the Committee nor Ord. Nos. 92 and 93 of the 1976 which repealed Act 45 and 46 of 1974were considered in Benoy Bhusan.

42. In Act 93 of 1976 power was given to the Government to dispose of the property and nothing was left for making the settlement that such property was to be preserved till conclusion of peace. As has been noticed in R.J. Reuter Co. Ltd. Fred Mulhens, All England Report,1953 volume II page 1160 that even such expression that arrangement to be made at the conclusion of peace, it could never be "such arrangement as to the contemplating giving back of this enemy property to German national". It is for the legislature to decide as to what is to be done with such property at the conclusion of peace but not for the court.

43. To opine that such legislation intended "to protect and manage the property so that the original owners could get back their properties at the conclusion of peace" is to read something in law which is not there and especially in view of the amendment dated 2.11.65. The opinion is that such conclusion is not warranted by law.

44. In view of the above analysis of the legal position there is no hesitation in saying that since the Government did not cancel the contract by declaring it against the public interest the contract is alive and the machinery has been provided by the Defence of Pakistan Ordinance namely, the preservation of jurisdiction of Civil Court (section 16). The Civil Court had exercised its jurisdiction and passed the decree and the Custodian who stepped into the shoes of the original owner e.g. Hemnalini has power to transfer this property by way of executing kabala. Whatever little right that was left for the non-resident the subsequent legislation clarified the point that the Government had power to transfer or disposal of such property vide Act 93 of 1976. If the Government had power of transfer, as provided by the Act, the next question is what prevents the Government to execute the document in pursuance of a decree of specific performance of contract. Mr. Ishtiaq Ahmed could not lay his hand on any such law.

45. In the result, therefore, appeal is allowed. Judgment and order of the High Court Division are set aside and those of the trial court restored, and the plaintiff gets the Kabala in pursuance of the decree of the trial court. There will be no order as to costs.
Ed.

Rahima Begum Vs. Bangladesh and others, 3 LNJ (2014) 327

Case No: Writ Petition No. 7911 of 2012

Judge: Md. Badruzzaman,

Court: High Court Division,,

Advocate: Mr. Zahirul Alam Babar,,

Citation: 3 LNJ (2014) 327

Case Year: 2014

Appellant: Rahima Begum

Respondent: Government of Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2014-03-13

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

M. Moazzam Hussain, J.
And
Md. Badruzzaman, J

Judgment on
13.03.2014

Rahima Begum
. . . Petitioner
-Versus-
Government of Bangladesh, Represented by the Secretary, Ministry of Local Government Rural Development Secretariat Bhaban, Dhaka and others
. . . Respondents

Constitution of Bangladesh, 1972
Article 102.
After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy.
The petitioner is none but a poor village woman and needs the job to ease her struggle for survival with her family not for making fortune. If the VIII-pass certificate is so crucial for the job the question of its genuineness ought to have been settled as soon as possible after the completion of recruitment process. After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy. The UCCA authority has failed to notice that there is a marked difference between the job needed for survival and of persons holding responsible posts in the hierarchy. And for the precise reason the job of an MLSS, unlike others, is directly linked with his/her bread and butter loss of which directly affects his/her survival as human. . . . (14)

Constitution of Bangladesh, 1972
Article 102.
If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw in his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal.
The authority is doubtlessly empowered to take action against anyone irrespective of status for the interest of the institution but in case of taking the job of a menial they must of necessity be the slowest and act under only painful necessity where no other alternative is available. If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw of his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal. . . . (15)

Mr. Zahirul Alam Babar, Advocate

---For the Petitioner.

Writ Petition No. 7911 of 2012

JUDGMENT

Md. Badruzzaman, J:

On an application under Article 102 of the Constitution this rule nisi was issued calling upon the respondents to show cause as to why the orders of stopping salaries, other benefits and office work bearing Memo No. 982 dated 18.04.2011 (Annexures G and G-1) should not be declared to have been made without any lawful authority and is of no legal effect.

Facts, leading to the issuance of this rule, in short, are that the petitioner was appointed as M.L.S.S of Lohagara Upazila Central Co-operative Association Limited, Narail (shortly ‘UCCA’) under Bangladesh Rural Development Board (shortly ‘BRDB’) by appointment letter dated 10.05.2005 and she was serving in the said post with sincerity and honesty to the satisfaction of the authority concerned and was getting yearly increment with her salary. The petitioner on 23.6.2010 filed an application before Upazila Palli Unnayan Officer for yearly increment of Tk. 100/-. Upon such application the Upazila Palli Unnayan Officer issued a letter on 16.08.2010 asking the petitioner to submit her eight pass testimonial before the authority, though at the time of joining in the post the petitioner submitted eight pass testimonial issued on 12.3.2005 by Amada Maddomik Biddalaya authority. The petitioner gave details about submission of eight pass testimonial by a reply dated 13.02.2011 in response to show cause notice issued by the authority on 14.10.1010. But the respondent No. 4 all on a sudden by office memo No. 982 dated 18.4.2011 (Annexure-G) stopped her salary and restrained from performing her office work with effect from April 2011 and the same respondent issued another office order under another memo using same memo number and date (i.e memo No. 982 dated 18.4.2011) informing all concerned that he would not sign the salary sheet and cheque of the petitioner from April, 2011 ( Annexure G-1).

An inquiry was also held regarding the testimonial of the petitioner by forming an inquiry committee by the Amada Maddomik Biddaloya authority and after inquiry the committee found that the testimonial which has been submitted by the petitioner was correct and accordingly the committee submitted a report on 03.05.2011 before the Head Master of the school and the Headmaster again issued a fresh certificate to the petitioner on the basis of the inquiry report and informed the matter to respondent No. 4 Upazila Palli Unnayan Officer, Lohagora, Narail by a representation dated 12.05.2011. The petitioner filed several representations on 9.5.2011, 11.5.2011 and 15.3.2012 by reference to inquiry report praying for withdrawal of the office orders dated 18.04.2011, payment of salaries and other benefits but the respondents did not pay heed to any of the applications. As a last resort the petitioner served a notice upon the respondents demanding justice through her engaged Advocate requesting them to withdraw /rescind the office orders dated 18.04.2011 but in vain. Having no other efficacious and alternative remedy available to the petitioner, she filed this application before this Division challenging the office orders dated 18.4.2011 and obtained the instant rule.

Mr. Zahirul Alam Babar, learned Advocate appearing on behalf of the petitioner submits that the impugned orders are ex-facie mala fide, illegal and arbitrary inasmuch as without holding any inquiry regarding the testimonial of the petitioner and without giving any notice of being heard of the petitioner respondent No. 4 Upazila Polli Unnayan Officer stopped payment of salary and other benefits including official works of the petitioner and as such the impugned orders are no orders in the eye of law. Learned Advocate further submits that the impugned order containing in Annexure-A is neither a suspension order nor a dismissal order according to service rules and this type of order is unknown to law. He next submits that till date no departmental proceeding has been initiated against the petitioner nor any formal suspension order is passed. But she has been deprived of the subsistence allowance which she would have been entitled had she been formally suspended. Learned Advocate finally submits that considering the facts and circumstances of the case this rule should be made absolute with a consequential relief directing the authority to reinstate the petitioner in her service and to pay all arrear salaries and other benefits payable to her for end of justice.

Respondent No. 4 entered appearance through separate vokalatnama and filed an affidavit-in-opposition denying the allegations made in writ petition in their material particulars but no one appears to oppose the rule at the time of hearing.

However, we have gone through the affidavit-in-opposition submitted on behalf of respondent No. 4, where it has been asserted, inter alia, that the writ petition is not maintainable as the allegations involve disputed question of fact regarding the genuineness of the academic certificate of the petitioner. His positive case is that writ petitioner at the time of entering in the service as MLSS under BRDB submitted ‘class VIII pass certificate’ from Amada Maddhomik Biddalaya, Lohagora. Thereafter a question of genuineness of the certificate arose and the respondent No.4 vide Memo. No. 541 dated 16.8.2010 asked for an explanation from the petitioner and the petitioner gave a reply on 13.2.2011 which was not satisfactory. Moreover, in reply dated 30.10.2010 to letter dated 9.12.2010 sent by respondent No.4, the Headmaster of Amada Maddhomik Biddalaya denied issuance of certificate in favour of the petitioner. Respondent No. 4 also formed 3(three) members inquiry committee on 31.01.2012 to inquire regarding the testimonial of the petitioner issued by Amada Maddomik Biddalaya pursuant to the decision taken by the executive committee of Lohagara U.C.C.A Limited on 26.01.2012. But the said committee submitted a report on 28.2.2012 stating that they were unable to inquire the matter as they faced pressure from various quarters.
We have heard the learned Advocate for the petitioner and perused the records of the case.

It is admitted that the petitioner joined in the service under BRDB as MLSS in the year 2005 and has been serving as such in the office of UCCA, Lohagora, Narail since the date of joining. It is the case of the petitioner that she was serving in the office of respondent No. 4 with full satisfaction of her higher authority but when she prayed for another increment in the year 2010, the respondent No. 4 for the first time raised the question of genuineness of her VIII pass testimonial filed at the time of joining in her service. The Headmaster of Amada Maddhomik Biddalaya on 30.12.2010 sent a letter to the respondent No.4 stating that there was no information about the petitioner in the school record and the certificate produced before him was not issued by the said school. Nearly four months thereafter, the respondent No. 4 all on a sudden issued the impugned order dated 18.4.2011 stopping payment of salary, other allowances and office duties as aforesaid. Office order dated 18.4.2011 is quoted verbatim below:

“উপজেলা পল্লী উন্নয়ন অফিসারের কার্যালয়
লোহাগড়া, ইউসিসিএ লিঃ
লোহাগড়া, নড়াইল
স্মারক নং- ৯৮২ তারিখঃ ১৮-৪-২০১১

অফিস আদেশ
বিগত ১৩/০৪/২০১১ইং তারিখে অনুষ্ঠিত ইউসিসিএ লিঃ এর কার্যনির্বাহী পরিষদের ৬নং আলোচ্য সুচীর আলোচনায় সর্বসম্মত সিদ্ধান্ত মোতাবেক মোসাঃ রহিমা বেগম এম,এল,এস,এস/পিয়ন এর শিক্ষাগত যোগ্যতার সনদপএের বৈধতার বিষয়টি সুরাহা না হওয়া পর্যন্ত লোহাগড়া ইউসিসিএ লিঃ এ কর্মরত মোসাঃ রহিমা বেগম, এম,এল,এস,এস এর যাবতীয় অফিসিয়াল কার্যএ্রম এবং বেতন ভাতাদি স্থগিত থাকবে। এ আদেশ এপ্রিল/২০১১ মাস হতে কার্যকর হবে।

স্বাক্ষর অম্পষ্ট
উপজেলা পল্লী উন্নয়ন অফিসার
(বিআরডিবি)
লোহাগড়া, ইউসিসিএ লিঃ ”

In the meantime upon an application of the petitioner dated 27.5.2011 the managing committee of Amada Maddomik Biddalaya decided to inquire about the genuineness of the certificate by forming a three members inquiry committee dated 30.4.2011, who after inquiry found that the petitioner was a student of Amada Maddomik Biddyalaoy and submitted a report on 3.5.2011 to that effect. As per said report the headmaster again issued a fresh testimonial and forwarded a letter to the respondent no.4 on 12.5.2011 explaining as to why he failed to give proper information earlier.

It also appears from the report of the inquiry committee dated 28.2.2012(Annexure-Uma) that after lapse of nine months from passing the impugn order the respondent No.4 formed a three- member inquiry committee on 31.1.2012 to inquire about the genuineness of the certificate of the petitioner but the said inquiry committee failed to submit any report stating that they had embarrassment to inquire into the matter and recommended to inquire by high officials of the department. But the respondent No.4 did not form any such inquiry committee till date.

A glance on the successive facts right from asking the petitioner to submit testimonial before paying increment down to the 28^th day of February, 2010 i.e nine months from passing the impugned order suggests to our mind a number of landmarks in this case, namely, asking for filing “VIII-Pass Certificate” after five years of undeniably satisfactory service; her written statement that at the time of entry into service she submitted it; at the instance of the respondents the petitioner’s school although primarily gave a negative reply but after thorough inquiry admitted the genuine-ness of the petitioner’s certificate and the headmaster also informed the respondent No.4 about the development expressing regret for the earlier negative report; several written requests thereafter made by the petitioner for withdrawal of the order stopping her salary etc.; merciless and unsparing attitude of the authority to the requests; unanimous decision of the of UCCA-Executive Committee to stop her salary and allowances; formation of a three-member committee to inquire into the matter which, however, felt embarrassed; proposal for forming high power inquiry committee and keeping the issue still alive, as appears from the affidavit-in-opposition.

The affidavit-in-opposition does not suggest that the UCCA and BRDB are corruption-free or effectively eradicated all sorts of corruption and misuse of official powers at higher levels and now taken up the agenda to clean up the bottom. Where unbridled corruption at the hierarchy has eaten up all our important state institutions and no effective measures could be taken against the evil we find no logic in declaring crusade against an MLSS who needs the job for bare survival not for pomp and grandeur in life raising the trifling question of genuineness of her VIII-pass Certificate.

As the story goes, the petitioner entered the job producing all necessary papers including her ‘VIII- pass Certificate’ issued from a local school. Meanwhile five years of her satisfactory service had been completed. After the question was raised, the headmaster informed the authority about the genuineness and issued a fresh certificate for the petitioner although primarily his sound was negative. Still the authority was not satisfied and seemingly could never be satisfied till her complete removal from the post.

The petitioner is none but a poor village woman and needs the job to ease her struggle for survival with her family not for making fortune. If the VIII-pass certificate is so crucial for the job the question of its genuineness ought to have been settled as soon as possible after the completion of recruitment process. After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy. The UCCA authority has failed to notice that there is a marked difference between the job needed for survival and of persons holding responsible posts in the hierarchy. And for the precise reason the job of an MLSS, unlike others, is directly linked with his/her bread and butter loss of which directly affects his/her survival as human.

The authority is doubtlessly empowered to take action against anyone irrespective of status for the interest of the institution but in case of taking the job of a menial they must of necessity be the slowest and act under only painful necessity where no other alternative is available. If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw of his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal.

Back to the formal issue, it appears that the action taken by the authority is too harsh and drastic. More so, the nature of order stopping salary, allowances and keeping off the indicted employee from duty is unheard of and not known to law. Law provides entitlement of allowance to the public servants or employees of other public bodies under suspension. Here the poor lady was deprived of everything. No norm of disciplinary action in passing the order has been followed.

Given the facts and circumstances of the case, we are of the view that respondents trave-lled far beyond their jurisdiction in issuing the impugned orders dated 18.4.2011 (Annexure -G and G-1).

This rule merits consideration which should be made absolute with consequential relief.

In the result, the rule is made absolute, however, without any order as to costs. The two office orders bearing same memo No. 982 dated 18.4.2011 (Annexure-G and G-1) are declared to have been passed and issued without lawful authority and are of no legal effect. The respondents are directed to re-instate the petitioner in her service and to pay all arrear salaries and other service benefits from April 2011, within 2(two) weeks from the date of receipt of this judgment.

Communicate copies of the judgment at once.

Ed.

Rahmat Ali alias Shukkur Vs. The State, 2 LNJ (AD) (2013) 125

Case No: Jail Petition No. 15 of 2010

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Md. Showardi,Mr. Helaluddin Mollah,,

Citation: 2 LNJ (AD) (2013) 125

Case Year: 2013

Appellant: Rahmat Ali alias Shukkur

Respondent: The State

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2012-11-26

APPELLATE DIVISION
(CRIMINAL)

Md. Abdul Wahab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.

Judgment
26.11.2012

Rahmat Ali Alias Shukkur

... Petitioners

-Versus-

The State

...Respondent

Code of Criminal Procedure (V of 1898)
Section 376
In the facts and circumstances of the instant case, keeping in mind the youth of the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 8 years, ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life.…(17)

For the Petitioner: Mr. Helal Uddin Mollah, Advocate
For Respondents: Mr. Md. Shohrowardi, Deputy Attorney General
Date of hearing: The 26th November, 2012

Jail Petition No. 15 of 2010

J U D G M E N T

MUHAMMAD IMMAN ALI, J:

This jail petition for leave to appeal at the instance of the condemned petitioner Rahmat Ali alias Shukkur is directed against the judgment and order dated 30.10.2007 passed by the High Court Division in Death Reference No.74 of 2004, which was heard along with Jail Appeal No. 521 of 2004 accepting the reference and dismissing the jail appeal.

The prosecution case, in brief, is that on 14.05.2003 at about 10.00 a.m. in the morning when Rumi, the niece of the informant Khairul Bashar went to the neighbouring house of accused Rahmat Ali alias Shukkur for plucking henna leaves, the accused abused her in filthy language. The informant heard about the incident with his niece Rumi and on that day he, his mother Rokeya Begum and Husna Begum, his brother’s wife asked the accused about the reason of abusing Rumi, whereupon, the accused abused them as well in filthy language and at one stage, he became furious and threatened to kill them. Then the informant along with his mother and sister-in-law came back to their house and informed about the occurrence to Milon Mia, the cousin of the informant. On 15.05.2003 at about 10.00 a.m. the accused sharpened a big sword which was seen by Husna Begum and neighbour Ahid Miah with other local people who told the informant. On 16.05.2003 at about 12.45 p.m. when the mother of the informant Rokeya Begum went beside their dwelling house to call their servant Jabbar Ali, the accused abused Rokeya Begum in filthy language and at one stage, on the road near the courtyard situated in between the house of the informant and his cousin Nazrul Islam, due to previous enmity the accused dealt blow on the head of Rokeya Begum with a four feet long sharp sword causing severe bleeding injury and as a result, the brain-matter of Rokeya Begum came out forthwith and she fell down to the ground. The occurrence took place in presence of Milon Mia, Shahadat Hossain and Husna Begum. Victim Rokeya Begum was rushed to Chand-iber Hospital by Ahid Miah and Nadir. The Doctor at the Emergency Department declared her dead. The persons present ran and caught the accused with the blood stained sword in his hand while he was trying to flee and handed him over to the police. The informant having been informed over telephone returned home from the Bazar and heard the occurrence, went to hospital and saw the dead body of his mother with bleeding injury. Thereafter, the informant lodged the First Information Report (FIR) on 16.05.2003 at about 13.30 hours under section 302 of the Penal Code against the condemned petitioner. Accordingly, Bhairab Thana Case No. 20(5) 2003 corresponding to G.R. No.260(2)03 was started.

The Investigating Officer in the course of investigation visited the place of occurrence, prepared the sketch map with index, prepared inquest report and recorded the statement of witnesses under section 161 of the Code of Criminal Procedure. After completion of investigation he submitted Charge-sheet No.143 dated 07.07.2003 under section 302 of the Penal Code against the condemned petitioner.

The case was transferred to the Court of Sessions Judge, Kishorganj where it was numbered as Sessions Case No.219 of 2003 for trial.

Charge was framed under section 302 of the Penal Code against the condemned prisoner and read over to him to which he pleaded not guilty and claimed to be tried. During trial the prosecution examined as many as thirteen P.Ws. who were cross-examined by the defence but the defence examined none. Five witnesses were tendered. The condemned petitioner was examined under section 342 of the Code of Criminal Procedure when again he pleaded not guilty and repeated his claim of innocence and declined to adduce evidence.

The defence case as it transpires from the trend of cross-examination of the prosecution witnesses was that of innocence. Positive defence taken was that the deceased, an elderly lady and patient of hypertension accidentally fell on a tin and received injury on her head resulting in her death.

The learned Judge of the trial Court after hearing the parties and upon consideration of the evidence and materials on record convicted the condemned prisoner Rahmat Ali alias Shukkur under section 302 of the Penal Code and sentenced him to death by his judgement and order of conviction and sentence dated 18.05.2004.

Reference under section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was numbered as Death Reference No.74 of 2004.

Before the High Court Division the Jail Appeal No.521 of 2004 was preferred by the condemned petitioner, which was heard along with Death Reference. By the impugned judgment and order the High Court Division accepted the reference and dismissed the jail appeal. Hence, the condemned prisoner has filed the instant Jail Petition before this Division.

Mr. Helal Uddin Mollah, the learned Advocate appearing on behalf of the petitioner submits that in view of the evidence on record he will not challenge the conviction of the petitioner but rather pray for commutation of the sentence of death. He points out that the petitioner has been in the condemned cell for about 8 years and has suffered the pangs of death throughout this period. He further submits that it is apparent from the evidence on record that the petitioner had a previous quarrel with the victim due to the alleged incident concerning the victim’s granddaughter. He also submits that the petitioner acted in the way he did due to previous enmity, as mentioned in the FIR, and due to emotional pressure arising out of the earlier incident when he was taken to task by the victim and her family members. He finally submits that the petitioner is a young man aged about 25 years and should be treated with leniency. He therefore prays that the sentence of death may be modified to one of imprisonment for life.

Mr. Md. Shohrowardi, the learned Deputy Attorney General appearing on behalf of the State submits that the instant case is one of cold blooded murder where the accused took preparation by sharpening his sword and waiting for the opportunity to kill the victim. He therefore prays that the judgment and order of conviction and sentence be upheld.

We have considered the submissions of the learned Advocate for the parties concerned and perused the impugned judgment and order of the High Court Division and other connected papers on record.

We find from the evidence on record that the condemned prisoner–petitioner previously had an argument with the victim and other family members. The incident was witnessed by the victim’s immediate family members as well as other independent witnesses. According to P.W.10 the petitioner having struck the victim with the sword ran into the Mosque, blood stained sword in hand saying “আমি খুন করিয়া আসিয়াছি, আমাকে বাঁচান” whereupon people in the vicinity ran there and caught him. We do not find anything on record to disbelieve the witnesses and accordingly the trial Court’s finding that the petitioner was guilty under section 302 of the Penal Code must be upheld.

However, from the record we find that the accused was aged 25 years when the statement under section 342 of the Code of Criminal Procedure was recorded on 08.05.2004. The occurrence took place on 16.05.2003 and therefore the accused was aged only 24 years at the time of occurrence. In this regard we may refer to the decision reported in 13 DLR 203 in the case of State Vs. Tasiruddin. That case was one where the death sentence was awarded by the trial Court. Murshed, J (as his Lordship then was) analysed the principle which a Court must follow in awarding sentence when convicting under section 302 of the Penal Code. While considering the aspect of age of the accused his Lordship looked at a number of cases decided by the higher Courts of the Subcontinent where the sentence of death had been modified and substituted by transportation for life (now imprisonment for life). Their Lordships made it clear that they were not laying down any precedent which can be applied to every case when a question of commutation of death sentence was considered on account of age of the accused. Nevertheless, in that particular case where the accused was 25 years old and possibly influenced by his elder brother, the sentence of death was commutated to a sentence of transportation for life.

We note from the decision referred to in the above mentioned case that the death sentence imposed upon youthful offenders, even up to the age of 25 years was commuted to a sentence of transportation for life. We also note from the charge-sheet that the P.C.P.R. (previous conviction and previous record) do not disclose any previous criminal activity of the condemned petitioner which tends to show that his character is not inherently criminal in nature. We keep in mind also the fact that admittedly enmity and grudge had developed between the condemned petitioner and the victim and her family which has triggered the action of the accused.

In the case of Nalu Vs. State reported in 1 Apex Law Report’s (AD) 222, where the facts were similar, with similar mitigating circumstances, this Division commuted the sentence of death to one of imprisonment for life.

In the facts and circumstances of the instant case, keeping in mind the youth the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than Eight and half years, we are of the view that ends of justice will be sufficiently met if the sentence of death is commuted and altered to one of imprisonment for life.

Accordingly, the Jail Petition No. 15 of 2010 is dismissed with modification of sentence of death as stated above.

Ed.

Rahmat Ali Vs. Md. Abdul Gani and others

Case No: Civil Petition for Leave to Appeal No.1165 of 2005.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Syed Mahbubar Rahman,,

Citation: V ADC (2008) 131

Case Year: 2008

Appellant: Rahmat Ali

Respondent: Md. Abdul Gani and others

Subject: Property Law,

Delivery Date: 2007-05-16

Rahmat Ali Vs. Md. Abdul Gani and others
V ADC (2008) 131

Supreme Court
Appellate Division
(Civil)

Present
Mohammad Fazlul Karim J
Md. Joynul Abedin J

Rahmat Ali being dead his following substituted heirs; Md. Abdur Rashid and others.……….. Petitioners
Vs.
Md. Abdul Gani and others ............................Respondents

Judgment
May 16, 2007.

Code of Civil Procedure, 1908
Section 115(1)

The scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit' of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. The judgment and order of the Subordinate Judge may have been an improper one not having given any reason but before interfering with the same, this Court is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice. The judgment passed by the lower appellate Court is supportable on merit and it cannot be pointed out by the learned lawyer for the petitioner that the lower appellate Court has committed any error of law that calls for interference. The lower appellate Court could have given an elaborate judgment giving reasoning in detail but simply because the judgment was a concise one, it cannot be said that an error of law has been committed error of law resulting in an error in the decision occasioning failure of justice. ….. (10)

Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For the Petitioners.
Syed Mahbubur Rahman, Advocate-on-Record-For Respondent Nos.1, 3, 4-8 and 11-13.
Not represented- the Respondent Nos. 2, 5-7, 9-10 and 14-31.

Civil Petition for Leave to Appeal No.1165 of 2005.
(From the judgment and order dated the 11th June, 2005 passed by the High Court Division in Civil Revision No. 5127 of 2003).

Judgment

Mohammad Fazlul Karim J.- Defendants-petitioners seek for Leave to Appeal against the judgment and order dated 11.06.2005 passed by the High Court Division in Civil Revision No.5127 of 2003 affirming the judgment and decree dated 09.08.2003 of the Joint District Judge, 2nd Court, Pabna in Other Class Suit No. 130 of 2000 reversing those dated 14.06.2000 by the Senior Assistant Judge, Sadar, Pabna in Other Class Suit No. 68 of 2000 decreeing the suit in part in preliminary form.

2. Respondent Nos.1-13 as plaintiffs instituted Other Class Suit No. 1186 of 1987 in the Court of the Senior Assistant Judge, Sadar, Pabna against the petitioners and others praying for a decree for partition to the extent of 3.06²/₃ acres of land in ''Ka'' schedule out of 4.60 acres of land, 85¹/₂ acres of land in "Kha" schedule and 65¹/₂ decimals acres of land in 'Ga' schedule land. The said suit was transferred to the Court of the Assistant Judge, Bera, Pabna and thereafter, to the Court of Senior Assistant Judge, Sadar, Pabna and renumbered as Partition Suit No. 39 of 1994 and Other Class Suit No. 68 of 2000 respectively.

3. The case of the plaintiffs, in short, is that the suit jote originally belonged to Latu Kha and Chadu Kha C.S. record was prepared in their names in equal share. Chadu Kha died leaving behind brother, Latu Kha and mother, Dalimjannessa. Thereafter, Latu Kha died leaving his mother Dalimjannessa. Dalimjannessa transferred the suit land in favour of Gaziur Rahman, Ahmed Ali and Rahmat Ali by a deed of settlement. The said Gaziur Rahman and others erected homestead in some portion of the suit land and thereby owned and possessed the said land for over 12 years by cultivation. Ahmed Ali died leaving behind wife Sohagi two daughters, Hamida and Rahima and two brothers Gaziur Rahman and Rahmat Ali. Sohagi died leaving behind two daughters, Hamida and Rahima. Gaziur Rahman died leaving son Abdul Gani, Wife Fuljan and four daughters Kulsum, Sahiman, Chebaran and Sahitan. Sahitan died leaving behind husband, Aziz, three sons-Rabbani, Sahidullah and Fazlul Haque and two daughters-Aklima and Aziran. Rahmat died leaving one son and five daughters i.e. defendant Nos.1-6. The suit jote was wrongly record in S.A. and R.S. Khatian in the name of the defendants. The defendants have no title and possession in the suit land. Rahmat Ali was given assignment to get the suit land recorded in S.A. Khatian who fraudulently and collusively got the suit land, recorded in his name. The suit land was never partitioned through Court. As the defendants refused to effect partition and hence the suit.

4. Defendant Nos 1-6 contested the suit by filing a joint written statement denying the material allegations of the plaint and contended, inter alia, that C.S. tenant, Latu Kha had no issue and he used to look after his khalato Bhai, i.e. cousin Rahmat Ali (predecessor of the defendant Nos.1-6). Latu Kha transferred 1.82 acres of land of schedule 'Ka' along with other land by way of a registered deed of gift dated 22.01.1935 and subsequently made under gift of the remaining portion of the suit land and handed over possession to him. Rahmat Ali as rightful owner possesses 4.70 acres of land of the 'Ka' schedule S.A. Khatian No.383 was prepared in his name. After the death of mother of Latu Kha and Chadu Kha their father Oli Kha married the said Dalimjannessa who had no issue and she did not inherit the share of Latu Kha and Chadu Kha. The plaintiffs have had no title and possession in the suit jote at any point of time and as such the suit is liable to be dismissed with costs.

5. Defendant Nos.11 and 12 also contested the suit by filing joint written statement denying the material allegations of the plaint and contended, inter alia, that they have got 0.37 decimals of land as heirs of Rahmat Ali and prayed for saham.

6. Mr. Mahbubey Alam, learned Counsel, appearing for the defendant petitioners submits that the plaintiffs having claimed the suit land on the basis of a patta dated 18.02.1938 exhibit-3(Kha) and the defendants having produced a registered deed of gift dated 22,01.1935 exhibit-'Ga' executed by Latu Kha, the admitted owner of the suit land in favour of Rahmat Ali, the appellate Court committed an error of law in decreeing the plaintiffs' suit in respect of 'Ka' schedule land totally ignoring the said registered deed of gift Exhibit- 'Ga' executed by Latu Kha and the High Court Division erred in affirming the judgment of the Court of appeal below in respect of the land of schedule 'Ka'. He also submits that in the alleged patta deed dated 18.02.1938 exhibit-3(Kha) Dalimjannessa having claimed to be a raiyat under the landlords, the Court of appeal below decreed the suit in respect of schedule 'Ka' without considering that the raiyat had no right to make any settlement and the High Court Division erred in affirming the judgment of the appellate Court without considering this aspect of the case.

7. Mr. Alam further submits that Latu Kha, the predecessor of the defendants being a raiyati sthitiban in respect of the said suit land and his name along with the name of his brother Chadu Kha having been correctly recorded in C.S. Khatian and the plaintiffs having not claimed that tenancy of said Latu Kha was extinguished in any manner and Dalimjannessa having not claimed in the alleged deed of settlement exhibit-3(Kha) 'Ka' schedule land by way of inheritance, the Court of appeal below erred in not holding that the suit for simple partition is not maintainable without a declaration of title and the High Court Division erred in law in affirming the judgment of the appellate Court.

8. Mr. Alam also submits that the contesting defendants-petitioners having claimed that C.S. recorded tenant, Latu Kha transferred 1.82 acres of land from 'Ka' schedule land to Rahmat Ali by way of a registered deed of gift dated 22.01.1935 exhibit-'Ga and also transferred 2.88 acres of land from the said schedule to the said Rahmat Ali by way of oral gift totaling 4.70 acres of land and subsequently S.A. and R.S. record having been prepared in the name of the said Rahmat Ali, the Court of appeal below as well as the High Court Division have failed to consider that the registered deed of gift as well as oral gift which was acted upon and Rahmat Ali acquired title and possession excluding others. Lastly, Mr. Alam submits that on the face of vehement challenge by the defendant-petitioners that Dalimjannessa never inherited the land of Latu Kha i.e. 'Ka' schedule land because he is a stepmother of Latu Kha and thereby the plaintiffs acquired no title with regard to 3.06²/₃acres i.e. 2/3 share in 'Ka' schedule land.

9. Mr. Syed Mahbubur Rahman, learned Advocate, appearing for respondent Nos.1, 3, 4-8 and 11-13 submits that in view of the joint possession of the plaintiff-respondent in the suit having right, title and interest and the Courts below having found the title of the plaintiff in respect of their claimed saham in the paternal homestead and land possessed in ejmali, which was wrongly recorded in the name of Rahmat Ali. The learned Advocate further submitted that exhibit-3 (kha) the registered deed of settlement dated 18.02.1938 in favour of Gaziur Rahman, Ahmed Ali and Rahmat Ali showing that Dalimjannessa settled 4.74 acres of land in their favour which land has been devolved upon the plaintiff and accordingly S.A. and R.S. khatian were wrongly prepared and such wrong recording could not affect the right, title and possession of the plaintiffs therein disentitling their legal right.

10. We have perused the records and are of the view that though the trial Court partly decreed the suit but the Court of appellate below on consideration of the material on record decreed the suit in full duly affirmed by the High Court Division holding that "the scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit' of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. The judgment and order of the Subordinate Judge may have been an improper one not having given any reason but before interfering with the same, this Court is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice. The judgment passed by the lower appellate Court is supportable on merit and it cannot be pointed out by the learned lawyer for the petitioner that the lower appellate Court has committed any error of law that calls for interference. The lower appellate Court could have given an elaborate judgment giving reasoning in detail but simply because the judgment was a concise one, it cannot be said that an error of law has been committed error of law resulting in an error in the decision occasioning failure of justice."

11. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.
The petition for Leave to Appeal is accordingly dismissed.
Ed.

Rahmat Goni Vs. Mrs. Meherun Nessa & others

Case No: Civil Petition for Leave to Appeal No. 1217 of 2005.

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Dr. Rafiqur Rahman,,

Citation: V ADC (2008) 670

Case Year: 2008

Appellant: Rahmat Goni

Respondent: Mrs. Meherun Nessa & others

Subject: Property Law,

Delivery Date: 2006-12-14

Rahmat Goni Vs. Mrs. Meherun Nessa & others
V ADC (2008) 670

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md.Tafazzul Islam J

Rahmat Goni …………….......Petitioner
Vs.
Mrs. Meherun Nessa & others ..........Respondents

Judgment
December 14, 2006.

Schedule Property on the basis of Heba-bil-ewaz deed dated 07.12.1982 and for further declaration that the cancellation of deed. ….. (2)

It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered instrument and if this type of cancellation of a registered instrument is allowed to continue there would be no sanctity of any registered instrument. …… (10)

Lawyers Involved:
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on- Record-For the Petitioner
Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 1217 of 2005.
(From the judgment and order dated 30.07.2005 passed by the High Court Division in Civil Revision No. 16 of 2002.)

Judgment

M. M. Ruhul Amin J. - This petition for leave to appeal is directed against the judgment and order dated 30.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 16 of 2002 discharging the Rule.

2. Short facts are that the plaintiff filed Title Suit No.33 of 1998 in the Court of Senior Assistant Judge, 3rd Court, Dhaka for declaration of title in respect of 8 annas share of 'Ka' schedule property on the basis of Heba-bil-ewaj deed dated 07.12.1982 and for further declaration that the cancellation of deed No.2809 dated 29.09.1997 and the Exchange deed No.7793 dated 29.10.1997 were illegal, collusive, void and not binding upon the plaintiff and the defendants acquired no title and interest by the subsequent cancellation deed and the exchange deed. The case of the plaintiffs is that the suit land belonged to Osman Gani, father of the plaintiff, who transferred the same to his wife Saleha Khatun (the defendant No.1) by way of heba-bil-ewaj dated 18.03.1969. Saleha Khatun transferred the suit land along with a two storied building and shops in favour of the plaintiff and the defendant No.2 by registered deed of Heba-bil-ewaj dated 07.12.1982. The defendant No.2 had been in possession of a room on the first floor and the plaintiff 1 had been in possession of the shop in the ground floor. The defendant No.2 collected rents from the shop of the scheduled property. But he did not pay the utility bills, rather he misappropriated the money. The plaintiff requested the defendant No.2 to pay the collected rents to her but the defendant No.2 refused. The defendant No.2 tried to grab the whole property in question. The defendant No.2 accordingly created a deed of cancellation dated 29.10.1997 and the deed of exchange dated 19.10.1997 executed by the defendant No. 1. The defendants have got no right, title and possession in the suit land on the basis of those documents.

3. The defendant Nos.1-2 contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that Osman Gani, the owner of the suit land transferred the same in favour of defendant No.1 who transferred the self same land in favour of the plaintiff and defendant No.2 by a registered heba-bil-ewaj dated 07.12.1982. Thereafter, the plaintiff and defendant No.2 executed an undertaking on 25.12.1982 in favour of defendant No. 1 in respect of the scheduled property. Subsequently the plaintiff arranged to sell half of the scheduled property and the defendant No.2 protested. The plaintiff also misbehaved with the defendants. The plaintiff also did not lookafter the defendant No. 1. Accordingly the defendant No. 1 decided to cancel the deed of Heba-bil-ewaj dated 07.12.1982 and executed a registered deed of cancellation dated 29.09.1997 and a registered deed of exchange dated 29.10.1997. The defendant No. 1 handed over possession of the suit property in favour of the defendant No.2. The plaintiff is the permissive possessor of the suit land under defendant No. 2.

4. The trial court decreed the suit. On appeal in Title Appeal No.285 of 2000, the court of appeal dismissed the appeal. Being aggrieved the plaintiff moved the High Court Division in revisional jurisdiction and obtained the Rule which after hearing was discharged.

5. We have heard Dr. Rafiqur Rahman, the learned Counsel for the petitioner and perused the judgment of the High Court Division and other connected papers.

6. It is not disputed that the suit land belonged to Osman Gani who transferred the same in favour of his wife defendant No.1 by a registered heba-bil-ewaj deed dated 18.03.1969. It is also an undisputed fact that defendant No.1 transferred the suit land in favour of the plaintiff and defendant No. 2 by a registered heba-bil-ewaj deed dated 07.12.1982. It is on record that the suit property consists of a two storied pucca residential building and some shops.

7. The dispute arose when the defendant No. 1 executed a deed of cancellation dated 29.09.1997 cancelling the earlier deed of heba-bil-ewaj dated 07.12.1982 in favour of the plaintiff and defendant No. 2 and thereupon executed a deed of exchange on 29.10.1997 in respect of the suit land.

8. It appears the court of appeal below which is last court of fact upon concurring with the finds and decisions of the trial court held that the heba-bil-ewaj deed dated. 07.12.1982 executed by defendant No.1 is a genuine piece of document and the subsequent cancellation of the said registered document by executing a cancellation deed is illegal and the heba-bil-ewaj deed dated 07.12.1982 in favour of the plaintiff and defendant No.2 executed by defendant No.1 stands valid. The possession of the plaintiff in the suit land is rather undisputed.

9. The learned Counsel argued that the heba-bil-ewaj deed dated 07.12.1982 having not fulfilled the basic requirements of the Muslim law, it was not a heba-bil-ewaj creating any right, title and interest in favour of the plaintiff and defendant No. 2. Be it mentioned here that a heba-bil-ewaj deed has all the incidents of a sale deed and it is as good as a sale deed in the eye of law. Even if the 'ewaj' (consideration) did not pass, the heba-bil-ewaj deed shall remain valid and the executant may seek relief for realization of the ewaj, as in the case of sale deed for non-payment of entire or part of consideration money, the executant may seek relief for recovery of money. A heba-bil-ewaj deed as distinguished from a simple heba (gift) is as good as a sale deed having all the ingredients of a sale deed and as such we do not find any merit in the submission of Dr. Rahman.

10. It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered instrument and if this type of cancellation of a registered instrument is allowed to continue there would be no sanctity of any registered instrument.

11. In the light of discussions made above and in the facts and circumstances of the case, we are of view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent ground to interfere with the same.
Accordingly, the leave petition is dismissed.
Ed.

Raisuddin (Md) Vs. Sitaram Bhar and others

Case No: Appeal from Original Order No. 112 of 1997.

Judge: Md. Abdul Aziz,

Court: High Court Division,,

Advocate: Reba Kaniz,Md. Mahbub Ali,,

Citation: 53 DLR (2001) 131

Case Year: 2001

Appellant: Raisuddin (Md)

Respondent: Sitaram Bhar and others

Subject: Property Law,

Delivery Date: 2001-02-12

Raisuddin (Md) Vs. Sitaram Bhar and others
53 DLR (2001) 131

Supreme Court
High Court Division
(Miscellaneous Appellate Jurisdiction)

Present:
Md. Abdul Aziz J

Raisuddin (Md)…….. Appellant
Vs.
Sitaram Bhar and others……..Respondents

Judgment
February 12, 2001.

Code of Civil Procedure (V of 1908)
Order XLI rule 19
The word “proved” is sufficiently indicative of taking evidence as to the existence of sufficient cause to pass an order under Order 41 rule 19 of the Code.

Cases Referred To-
Mrinal Kanti Guha & others Vs. Brajendra Lad Dhar & others 44 DLR (AD) 9; Salamat Bibi & others Vs. Settlement and Rehabilitation Commissioner, Multan, 21 DLR (SC) 353.

Lawyers Involved:
Md. Mahbub Ali, Advocate— For the Appellant.
Reba Kaniz for AK Ahmadul Hasan, Advocate — For Respondent Nos. 1-3.

Appeal from Original Order No. 112 of 1997.

Judgment

Md. Abdul Aziz J. - This First Miscellaneous Appeal is directed against Order No. 85 dated 16-2-97 passed by the learned Additional District Judge, Moulvibazar dismissing the Miscellaneous Case No.3711995 under Order 41, rule 19 of the Code of Civil Procedure brought by the plaintiff-appellant.

2. The facts of the Case, in short, inter alia, is that the plaintiff-appellant brought Title Suit No. 117/1984 in the Court of Assistant Judge Kamalganj Upazilla, Moulvibazar for declaration of title and rectification of Kabala deed which was dismissed on 27-3-86 on contest. The plaintiff filed a title Appeal being Title Appeal No.118 of 1986 before the learned District Judge which was dismissed for default on 4-9-1995. The plaintiff-appellant filed an application under Order 41, rule 19 of the Code of Civil Procedure for re-admission of the appeal on which Miscellaneous Case No. 37 of 1995 was started. The said miscellaneous Case was dismissed for default on 23-1-1996. The plaintiff-appellant filed an application under section 151 of the Code of Civil Procedure for restoration of the said Miscellaneous Case on setting aside the order dated 23-1-96 which was rejected by the Court vide its order dated 29-6-96. The plaintiff-appellant again filed another application under section 151 of the said Code which was, however, allowed by the Court vide its order dated 14-8-96 for restoring the Miscellaneous Case No.37 of 1995 setting aside the order dated 23-1-96. Thereafter the appellate Court below took up the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code in Miscellaneous Case No.37 of 1995 for hearing and rejected the same by the impugned order. Being aggrieved by the aforesaid impugned order dated 16-2-97 the plaintiff-appellant preferred this appeal.

3. Mr. Md. Mahbub Ali, the learned Advocate appearing on behalf of the plaintiff-appellant submits that the impugned order suffers from serious infirmity in not considering and giving any finding on the legal requirement of rule 19 of Order 41 of the said Code as to whether the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing” and, as such, the impugned order is liable to be set aside. He further submits that the appellate Court below having given his full consideration on the laches and negligence of the plaintiff-appellant in pursuing the proceeding while rejecting the aforesaid application the impugned order is not sustainable in law in view of the provisions of rule 19, Order 41 of the Code of Civil Procedure. Mr. Ali further submits that the plaintiff-appellant having filed the suit paying ad valorem Court-fee and pursued the original suit with utmost care and sincerity, the appellant-litigant should not be deprived of his right of hearing of his grievance on frivolous ground but should be given an opportunity to get the matter heard on merit. He further submits that the application filed by the plaintiff-appellant under Order 41, rule 19 of the Code of Civil Procedure was also accompanied by an application under section 5 of the Limitation Act and neither the application under rule 19, Order 41 of the said Code nor the application under section 5 of the Limitation Act having been opposed and controverted by the defendants-respondents and there being no evidence taken in the Case on the issues both on sufficient cause and on limitation, the appellate Court below has wrongly dismissed the miscellaneous Case finding the same as barred by limitation. In support of his submission Mr. Ali has referred a Case between Mrinal Kanti Guha and others Vs. Brajendra Lal Dhar and others, reported in 44 DLR (AD) 9.

4. On the other hand, Mrs. Reba Kaniz, the learned Advocate appearing on behalf of the defendants-respondents, submits that the learned Appellate Court below has passed the impugned order illegally as per provision of Order 41, rule 19 of the said Code and has committed no wrong or illegality. She further submits that the learned Court below has disbelieved the Medical Certificate and found no sufficient cause to allow the said application filed under Order 41, rule 19 of the Code. She lastly submits that the Court below has dismissed the miscellaneous Case by the impugned order finding that the application was barred by limitation by two months and 20 days and the delay was not explained by the plaintiff-appellant. In support of her submission Mrs. Reba Kaniz, the learned Advocate for the defendants-respondents has cited a decision in the Case between Salamat Bibi & others Vs. Settlement and Rehabilitation Commissioner, Multan, reported in 21 DLR (SC) 353.

5. Perused the impugned order and heard the learned Advocates of both the sides. The impugned order reveals that the plaintiff-appellant filed an application under Order 41, rule 19 of the Code for setting aside the order dated 4-9-95 passed by the appellate Court below dismissing Title Appeal No.188 of 1986 for default preferred against the judgment and decree dated 27-3-86 passed by the learned Assistant Judge, Kamalganj dismissing the Title Suit No.117 of 1984. The said application under Order 41, rule 19 of the said Code vide Miscellaneous Case No.37 of 1995 was dismissed for default on 23-1-96 and an application under section 151 of the Code of Civil Procedure was filed on 4-3-96 for restoration of the miscellaneous Case which was also dismissed for default on 29-6-96. Thereafter the plaintiff-appellant filed another application under the same section of the Code on 31-7-96 and the Court allowed the same vide its order dated 14-8-96 restoring the Miscellaneous Case No.37/95 setting aside the order dated 23-1-96. The miscellaneous Case was taken up for hearing on 16-2-97 and was rejected by the appellate Court below vide its impugned order dated 16-2-97 finding that the plaintiff-appellant has been delaying the hearing and disposal of the Case on different pretexts and not eager to hear the Case conclusively. The appellate Court below further found that the plaintiff-appellant filed the miscellaneous Case under Order 41, rule 19 of the said Code with a Medical Certificate alleging that he had fallen sick on and from 01-9-95 and continued till 20-11-95 and, as such, he could not appear before the Court when the title appeal was called on for hearing under Order 41, rule 19 of the Code of Civil Procedure and consequently, the appeal was dismissed for default, was barred by limitation and the Medical Certificate was disbelieved by the learned Court below as a mere pretext to add harassment to the defendants-respondents.

6. Mr. Md. Mahbub Ali, the learned Advocate for the plaintiff-appellant, challenging the aforesaid impugned order asserted that the learned appellate Court below has dismissed the miscellaneous Case for frivolous reasons and findings which is devoid of legal requirement of rule 19 of Order 41 of the Code of Civil Procedure and gave no finding as to whether the plaintiff-appellant was prevented by sufficient cause from appearing before the Court when the appeal was taken up for hearing under Order 41, rule 11 of the said Code and, as such, the impugned order is not maintainable in law. He further submits with reference to a decision mentioned above reported in 44 DLR (AD) 9 that the previous conduct of the respondents cannot be a ground for refusing relief under the provision of rule 19, Order 41 of the Code. It has further been contended by him that the Court below did not fix any date for taking evidence nor any evidence was taken either on the sickness of the plaintiff-appellant or on point of limitation but wrongly disbelieved the Medical Certificate and found that the miscellaneous Case was barred by limitation by 2(two) months and 20 days.

7. Mrs. Reba Kaniz, the learned Advocate appearing on behalf of the defendants-respondents, contends that the appellate Court below passed the impugned order legally disbelieving the Medical Certificate as well as finding the miscellaneous Case barred by limitation as aforesaid.
Order 41, rule 19 of the Code of Civil Procedure runs as follows-
“19. (1) Where an appeal is dismissed under rule 11, sub-rule (2), or rule 15A or rule 17 or rule 18, the appellant may apply to the Appellate Court for re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
(2) Provisions of section 5 of the Limitation Act, 1908 shall apply to applications under sub-rule (1)”.
On a plain reading of the aforesaid provisions of rule 19 of Order4l of the Code it appears that the Court while disposing of an application under rule 19 of Order 41 of the Code must be satisfied that it was “proved” that the complaining party was prevented by any sufficient cause from appearing before the Court when the suit or appeal was called on for hearing. The word “proved’ is sufficiently indicative of taking evidence as to the existence of sufficient cause to pass an order under Order 41 rule 19 of the Code. It is evident from the impugned Order that the trial Court did not at all take any evidence on the Medical Certificate filed by the plaintiff-appellant along with his application under rule 19 of Order 41 of the Code to satisfy himself as to whether the plaintiff-appellant was really sick and the Medical Certificate was genuine or not. Instead, the appellate Court below disbelieved the same and dismissed the miscellaneous Case. It also appears that the Court below has also found that the miscellaneous Case was barred by time by 2 months and 20 days. On these two counts the appellate Court below dismissed the miscellaneous Case.

8. At the time of hearing of the appeal the learned Advocate for the appellant produced a certified copy of a petition under section 5 of the Limitation Act which was filed by the plaintiff-appellant before the appellate Court below along with his application under rule 19 of Order 41 of the Code explaining the delay. Unfortunately, the impugned order is absolutely silent about this petition under section 5 of the Limitation Act which was filed by the appellant with his application under Order 41 rule 19 in compliance of sub-rule (2) of rule 19 of Order 41 of the Code.

9. I have also perused the decisions reported in 21 DLR (SC) 353 and 44 DLR (AD) 9 as mentioned above. Their Lordships in the Case reported in 21 DLR (SC) 353 have been held that:
“Order XLI, rule 19 of the Code of Civil Procedure gives the requisite power to the appellate Court to re-admit an appeal dismissed for default, “where it is proved that he (the appellant) was prevented by sufficient cause from appearing when the appeal was called on for hearing”. As to what is or is not sufficient cause for the purposes of the rule must necessarily depend upon the facts and circumstances of each Case and each Case must be judged upon its merits and its peculiar circumstances.”
Their Lordships also found that:
“The determination of the question as to whether there is or is not a “sufficient cause” in a particular Case is no doubt a matter within the discretion of the Court itself, but it has to be remembered that this discretion too, like all other discretions exercised by a Court, must be exercised in a judicious manner having regard to all the facts and circumstances of each Case and that a litigant should not be lightly deprived of the right of having his Case heard by the Court.”

10. In this Case before me it appears that the appellate Court below disposed of the Miscellaneous Case No. 37 of 1995 on reasons and findings beyond the requirement of the provisions of rule 19 of Order 41 of the Code. The Court has not at all considered whether there was, or that whether the Court was satisfied as to the, existence of sufficient cause which prevented the litigant appellant to appear before the Court when the appeal was taken up for hearing and, as such although the Court is empowered to take a decision within its discretion, but the decision was not taken by exercising its discretion in a judicious manner. The Court has also not taken any evidence and examined any witness on behalf of the plaintiff appellant to prove the genuineness of the allegation of sickness and of the Medical Certificate to ‘prove’ the sufficient cause which prevented him from appearing before the Court on the relevant date. The appellate Court below has not taken into consideration at all the application filed by the plaintiff-appellant under section 5 of the Limitation Act. The impugned order reveals that the appellate Court below has disposed of the aforesaid application by dismissing the miscellaneous Case merely on the ground of negligence and laches of the party and on limitation. It has been clearly held by the Appellate Division in the Case reported in 44 DLR (AD) 9 that-
“The previous conduct of the respondent may be reprehensible but the matter cannot be decided on the ground of mere previous conduct. Whether the defendant was prevented by sufficient cause from appearing when the appeal was called on for hearing will determine the outcome of the proceeding under Order 41, rule 19 CPC.”
But here in the present Case, the appellate Court has given no consideration on this very vital point of the Rule and gave no finding whether there was any sufficient cause which prevented the appellant from appearing before the Court when the appeal was called on for hearing. The appellate Court below had virtually deprived the litigant plaintiff-appellant of the right of having his Case heard on merit by the Court without giving any finding on the requirement of law of rule 19 of Order 41 of the CPC.

11. In view of the above facts and circumstances of the Case, I find merit in the submissions of the learned Advocate for the plaintiff-appellant and in view of my above discussions on the facts and circumstances of the Case and on consideration of both the decisions referred to by the learned Advocates of both the sides, I am of the opinion that the impugned order is not sustainable in law. The litigant plaintiff- appellant should be given an opportunity to get his title appeal heard on merit.

12. In the result, the appeal is allowed without any order as to costs.

13. The impugned order dated 16-2-1997 is hereby set aside. The Miscellaneous Case No.37 of 1995 under Order 41, rule 19 of the Code of Civil Procedure is hereby allowed and the Title Appeal No.118 of 1986 is hereby restored to its original number and file.
Since considerable period of time has already elapsed till filing of the title appeal, the appellate Court is hereby directed to dispose of the appeal on merit within 3(three) months from the date of receipt of this judgment and order of this Court for ends of justice.
Ed.

Rajdhani Unnayan Kartipakkya (RAJUK) Vs. Jahan Ara Begum and others

Case No: Civil Appeal Nos.107-121 of 2004.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Dr. M Zahir,Mr. T.H. Khan,,

Citation: 61 DLR (AD) (2009) 145

Case Year: 2009

Appellant: Rajdhani Unnayan Kartipakkya (RAJUK)

Respondent: Jahan Ara Begum and others

Subject: Property Law,

Delivery Date: 2008-08-11

Rajdhani Unnayan Kartipakkya (RAJUK) Vs. Jahan Ara Begum and others
61 DLR (AD) (2009) 145

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J

Rajdhani Unnayan Kartipakkya (RAJUK).............Appellant (In all the cases)
Vs.
Jahan Ara Begum…….............Respondent (In Criminal Appeal No.107 of 2004)
Golam Mostafa and others....Respondent (In Civil Appeal No.108 of 2004)
Anowara Begum.........Respondent (In Civil Appeal No. 109 of 2004)
Mrs. Abeda Chowdhury..........Respondent (In Civil Appeal No.110 of 2004)
M.A. Reza……........................Respondent (In Civil Appeal No.111 of 2004)
Md. Ali Mia…..........................Respondent (In Civil Appeal No.112 of 2004)
Golam Dastagir Gazi…............Respondent (In Civil Appeal No.113 of 2004)
Fazila Khatun…......................Respondent (In Civil Appeal No.114 of 2004)
Fazila Khatun…......................Respondent (In Civil Appeal No.115 of 2004)
Alamgir Gazi..........................Respondent (In Civil Appeal No.116 of 2004)
Mossammat Hasna Hena ......Respondent (In Civil Appeal No.117 of 2004)
Shahidul Hassan…..................Respondent (In Civil Appeal No.118 of 2004)
Hayetunnessa….....................Respondent (In Civil Appeal No.119 of 2004)
Sk. Nur Islam….....................Respondent (In Civil Appeal No. 120 of 2004)
Md. Rashidul Hasan...............Respondent (In Civil Appeal No.121 of 2004)

Judgment
August 11, 2008.

Acquisition & Requisition of Immovable Property Ordinance (II of 1982)
Section 12
Town Improvement Act (XIII of 1953)
Section 93A

The provisions of Ordinance No. II of 1982 have no manner of application in the matter of assessment/payment of compensation; that the writ-petitioners may be given, alternative plot is not germane/related to requisition/acquisition of land under the Town Improvement Act, 1953 nor alternative plot is linked with compensation nor the writ petitioner has any fundamental or legal right to allotment as a necessary corollary of requisition of land.

Lawyers Involved:
T.H. Khan, Senior Advocate, instructed by Walilul Islam, Advocate-on-Record-For the Appellants (In all the cases)
Dr. M. Zahir, Senior Advocate with Farid Ahmed, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Respondent (In Civil Appeal Nos. 107-109 & 111-116, 119-120 of 2004)
Not represented- the Respondent (In Civil Appeal Nos. 110, 117-118, 121 of 2004)

Civil Appeal Nos.107-121 of 2004.
(From the judgment and Order dated June 27, 2001 passed by the High Court Division in W. P. Nos. 3408, 5120, 4862. 3415, 3413, 3412, 3411, 3410, 2749, 2751, 3409, 3414 and 2748 of 1996 & the Judgment and Order dated July 31, 2001 passed by the High Court Division in Writ Petition Nos. 3407 and 4576 of 1996).

Judgment

Mohammad Fazlul Karim J. - These Appeals, by leave, are directed against the judgment and order dated June 27, 2001 of a Division Bench of the High Court Division in Writ Petition Nos. 3408, 5120, 4862, 3415, 3413, 3412, 3411, 3410, 2749, 2751, 3409, 3414 and 2748 of 1996 and the C.P. Nos. 73 and 74 of 2002 have been filed against the common judgment dated July 31, 2001 in Writ Petition Nos. 3407 and 4576 of 1996.

2. Facts of the petitions and the question of law involved being common the same have been taken up for hearing together. The writ petitions in the first bunch were filed impugning the notice of Rajdhani Unnayan Kartipakky (RAJUK) published in the 'Daily Ittafaq' on September 7, 1994 inviting application from the persons who were affected because of the acquisition of their land by the L.A. Case Nos. 138 of 1961-62, 91 of 1957-58 and 26 of 1959-60. The writ petitions as mentioned in the second bunch were filed impugning the notice issued by the Magistrate of the RAJUK, Dhaka, asking the persons to vacate the land in unauthorized occupation and to remove the structures thereon by the 24th August, 1996.

3. Facts in all the appeals are more or less same. It was the case of the writ-petitioners that proceeding for the acquisition of the land was initiated and part of the compensation money was paid but later on Government decided to de-requisition their land along with the land of others and thereupon they were served with the notice to return the compensation money received earlier by them and accordingly they refunded the compensation money to the Deputy Commissioner but in spite of that the deputy commissioner did not complete the process of de-requisition. It was the case of the writ petitioners that they are in possession of the land and that they have exclusive right, title, interest and possession in the land in suit.

4. The Rule was opposed by the RAJUK. It was the case of the RAJUK that the land of the writ-petitioners along with other land was requisitioned in different L.A. cases for development of residential are and in due course compensation was paid to the owners of the land and the Deputy Commissioner delivered possession of the land to the DIT, now RAJUK in April, 1963. The Board of trustee of erstwhile DIT in its meeting held on July 27, 1965 decided to revise its scheme but never abandoned the scheme. It was also the case of the RAJUK that Government after re-examining the scheme and considering the housing problem in the Dhaka city directed the DIT (now RAJUK) not to release any land already requisitioned and the Deputy Commissioner was directed not to accept any return of money from the awardees. It was also the case of the RAJUK that possession of the land as now claimed by the writ-petitioners was taken over on payment of substantial portion of the compensation money and that on taking over possession RAJUK proceeded with the development of the area. It was contended on behalf of the RAJUK that since the writ-petitions being the persons said to have acquired interest subsequent to requisition they as such are not competent to question legality of the proceeding of the requisition since their vendors or they have received compensation, that notice under Section 94A(1) of the Town Improvement Act, 1953 was served by the Deputy Commissioner upon the owners of the land requisitioned and as against the said notice neither the owners nor the writ-petitioners raised any objection, that at no point of time any order was passed by the Government for de-requisition of the land under the Town Improvement Act.

5. It may be mentioned in some of the writ-petitions it was contended that the writ petitioners never received any compensation in respect of their land. As seen from the writ petitions of this category that the writ-petitioners have acquired their interest in the land subsequent to the initiation of the L.A. case for the requisition of the land as now they are claiming.

6. At the time of hearing it was contended on behalf of the writ-petitioners that Government took decision to de-requisition 1005 acres of land out of 2076 acres of land and thereupon issued notice to the writ-petitioners and in some cases to their predecessors-in-interest asking for refund of the compensation money earlier received by the persons whose land was requisitioned and that the petitioners remained in possession of their respective land. It was also contended that some of the writ-petitioners were not paid any compensation in respect of the land so requisitioned. It was further contended that it was the legitimate expectation of the writ-petitioners that as their land would no longer be required by the requiring body they would be allowed to remain in possession of their land or in the alternative they would be provided with alternative plot or that the would get compensation in respect of their land as per provision of the Acquisition and Requisition of Immovable Property Ordinance, 1982. It was submitted on behalf of the writ-petitioner in refuting the question of non-maintainability of the writ petition that the writ-petitioners were not challenging the acquisition proceeding but they have come before the Court to establish their claim of being entitled to be treated equally and in accordance with law in the matter of either by allotting to them alternative plots or by giving them compensation as per the present market value and till then their possession in the land in question should not be disturbed.

7. On behalf of the RAJUK it was contended that L.A. Cases were duly initiated after issuance of notice upon the owners of the land in question and that the land in question having been requisitioned upon initiation of the L.A. cases the same vested to the Government under Section 93A of the Town Improvement Act and hat their is no provision for releasing the land so vested in the Government or in other words so requisitioned and that after requisition the land owners are only entitle to get compensation.

8. The High Court Division disposed of the writ petitions with the following observations and the directions:
"We have heard learned lawyers of both the sides and considering the facts and circumstances of the case what we find is that the petitioners are not challenging the Acquisition proceeding but their grievance is that they are in possession of the lands in question, some of the petitioners also refunded the compensation money received from the acquiring authority. In this regard we find substance in the contention of Mr. Farid Ahmed the learned Advocate appearing for the petitioners that they had their legitimate expectation that they will be given alternative plots or will be given sufficient compensation as per provision of ordinance 1982.

9. Having regard to the facts and circumstances of the case we find that the acquisition proceedings have not yet been completed and the petitioners are very much in possession of the lands in question. We therefore hold that the petitioners are entitled to be equally treated and in accordance with law. In such view of the matter, we hold the petitioners must either be given and alternative plots or will be given sufficient compensation as per provision of Ordinance, 1982. We therefore direct that RAJUK to take all possible steps to complete the proceedings of the L.A. case in question preferably within 6 months from the date of receipt of this order.

10. The Respondents are also directed to prove their title and ownership in respect of the lands in question if the respondents by this time were given part compensation money they will get the balance amount of compensation as per provision of the said Ordinance or they may be given alternative plot if on compensation was given. In the meantime the acquiring authority shall finalise the L.A. case and till then the petitioners, shall not be disturbed of their peaceful possession in any manner".

11. Leave was granted to consider the submission of the learned Counsel appearing for the appellants in all the appeals that "the High Court Division erred in law in holding/directing that the writ petitioners be given compensation according to the present market value as provided in the Ordinance, 1982 and that the writ-petitioners will get balance amount of compensation as per provision of the said Ordinance inasmuch as the requisition and acquisition was initiated and carried out under Section 93A of the Town Improvement Act, 1953 and that after repeal of the said provision the pending proceeding would continue in pursuance of Section 6 of the General Clauses Act and Section 73 (Uma) and 74(2) of the Town Improvement (Amendment) Act XXIX of 1987 and as such the provisions of Ordinance No. II of 1982 have no manner of application in the matter of assessment/payment of compensation. He further submits that the High Court Division erred in law in holding that the writ-petitioners may be given alternative plot if no compensation was given inasmuch as the issue of alternative plot is not germane/related to requisition/acquisition of land under the Town Improvement Act, 1953 nor alternative plot is linked with compensation nor the writ-petitioners have any fundamental or legal right to allotment of plot as a necessary corollary to requisition of land and as such the direction of the High Court Division is beyond the scope of jurisdiction of the High Court Division under Article 102(2) (a) (i) of the Constitution of Bangladesh. He also submits that the High Court Division committed illegality in upholding the argument that the writ-petitioners had their legitimate expectation that they would be given alternative plot because the issue of alternative plot has no direct nexus and is not a necessary corollary to acquisition of land of the petitioner under the provisions of the Town Improvement Act, 1953 and further that the allotment of land is a distinct policy and procedure under distinct allotment rules having distinct specific criteria for such allotment which is not automatic with acquisition of land and that there is no legitimate expectation where there is element of chance and fulfillment of criteria as per process of evaluation. He also submits that the High Court Division committed illegality in entertaining the writ petitioners' claim of title in the acquired property on the basis of transactions subsequent to the requisition process because the original owner/awardee, after requisition had no saleable/transferable title in the property and the writ petitioners had no legal right to make any grievance under Article 102(2) (a) (i) of the Constitution before the High Court Division. The learned Counsel further submits that the High Court Division committed illegality in reopening the factual and procedural aspects of L.A. case No. 138 of 1961-62 inasmuch as those issues had been finally settled by the High Court Division in the case reported in 46 DLR at page 205 and the said judgment had been affirmed by the Appellate Division, Supreme Court of Bangladesh in Civil Petition for Leave to Appeal Nos.117-119 of 1994, there was no scope to reagitate those issues. He further submits that the High Court Division in exercise of its jurisdiction under Article 102(2)(a)(i) of the Constitution of Bangladesh traveled beyond the Rule Nisi in granting relief which is neither germane nor have any nexus with impugned public notice published in daily newspapers inviting application for allotment of land to person affected by the acquisition. The learned Counsel lastly submits that the High Court Division committed illegality in failing to hold that the writ petitions as framed challenging a public notice published in national dailies were not maintainable under Article 102(2) (a) (i) of the Constitution (Mandamus) inasmuch as writ-petitioners have no fundamental or legal right in non-publication of the public notice nor there is any corresponding statutory obligation upon the appellant (RAJUK-Respondent in writ petition) not to publish such public notice and that the said issue of non maintainability has been affirmatively held by the High Court Division in the judgment passed in the Writ Petition No. 4890 of 1996 dated 01/03/2001 by another Division Bench of the High Court Division."

12. Mr. T.H Khan, learned Counsel, appearing for the appellant submitted that the writ-petitioners be given compensation according to the present market value as provided in the Ordinance, 1982 and that the writ-petitioners will get balance amount of the compensation as per provision of the said Ordinance inasmuch as the requisition and acquisition was initiated and carried out Section 93A of the Town Improvement Act, 1953 and that after repeal of the said provision the pending proceeding would continue in pursuance of Section 6 of the General Clauses Act and Section 73(Uma) and 74(2) of the Town Improvement (Amendment) Act, XXIX of 1987 and as such, the provisions of Ordinance No. II of 1982 have no manner of application in the matter of assessment/payment of compensation; that the writ-petitioners may be given alternative plot if no compensation was given inasmuch as the issue of alternative plot is not germane/related to requisition/acquisition of land under the Town Improvement Act, 1953 nor alternative plot is linked with compensation nor the writ petitioner has any fundamental or legal right to allot of plot as a necessary corollary of requisition of land as such, the High Court Division is beyond the scope of jurisdiction under Article 102(2)(a)(i) of the constitution of Bangladesh; that the writ-petitioners had their legitimate expectation that they would be given alternative plot because the issue of alternative plot has not direct nexus and is not a necessary corollary to acquisition of land of the petitioner under the provisions of Town Improvement Act, 1953 and further that the allotment of land is a direct policy and procedure under distinct specific criteria for such allotment which is not automatic with acquisition of land and that there is no legitimate expectation where there is element of chance and fulfillment of criteria as per process of evaluation; that the High Court Division committed illegality in entertaining the writ petitioner's claim of title in the acquired property on the basis of transactions subsequent to the requisition process because the original owner/awardee, after requisition had no saleable/transferable title in the property and the writ petitioners had no legal right to make any grievance under Article 102(2)(a)(i) of the Constitution; that the High Court Division committed illegality in reopening the factual and procedural aspects of L.A. Case No.138 of 1961-62 inasmuch as those issues had been finally settled by the High Court Division in the case reported in 46 DLR 205 and the said judgment had been affirmed by this Division. The learned Advocate further submitted that the writ-petition as framed challenging a public notice published in national dailies was not maintainable under Article 102(2) (b) (i) of the Constitution inasmuch as writ petitioner has no fundamental or legal right in non-publication of the public notice nor there is any corresponding statutory obligation upon the appellant not to publish notice and that the said notice of non-maintainability has been affirmatively held by the High Court Division; that if the compensation is not paid in full the balance of amount to be paid at the rate of present market value inasmuch as the compensation has already been paid to the actual owners and the same was paid as per relevant law/rule existing at the relevant time.

13. Under the Supreme Court (Appellate Division) Rules a party who has not filed any concise statement though is debarred from arguing for defendant-respondent but upon permission to argue on behalf of the respondent sought by the learned Counsel for the purpose, we have heard Dr. M. Zahir for the respondent in order to secure end of justice.

14. Dr. M. Zahir, learned Counsel, appearing for respondent while supporting the impugned judgment and order has, however, submitted that the High Court Division considering the facts and circumstances of the case as represented by the writ-petitioners held that the writ-petitioners are not challenging the acquisition proceeding but alleged to be in their possession of the land-in-question that the writ-petitioners had their legitimate expectation that they will get alternative plot or provided with sufficient compensation as per provision of Ordinance, 1982 referring to the impugned judgment of the High Court Division. The learned Counsel further submitted that as the writ-petitioner-respondents are very much in possession in the land-in-question they are entitled to be treated equally in accordance with law and as such, the writ petitioners are entitled to either an alternative plot or be given sufficient compensation as per provision of Ordinance, 1982.

15. Admittedly, the land-in-question was acquired in L.A. Case No.138 of 1961-62 under the provision of Emergency Requisition of the Property Act, 1948 read with Sub-section (2) of Section 93 of the Town Improvement Act for public purpose that the petitioners though alleged non-receipt of certain amount of compensation for acquisition of land thereby the acquisition is not illegal or without lawful jurisdiction inasmuch as the said provision is not synonymous to Section 12 of the Acquisition and Requisition Ordinance, 1982 and there is no provision in the Emergency Requisition of Property Act, 1947 for any enhanced compensation due to non-receipt of compensation in time. Since payment or non-receipt of compensation is no ground for challenging the acquisition proceeding, the alleged legitimate expectation of Ex-owner to get compensation as per provision of Ordinance, 1982 is of no avail.

16. That the requisition and acquisition having been completed as per the provision of Emergency Requisition of Property Act, 1948, even if the proceeding is pending that would continue thereunder pursuant to the provision of Section 6 of the General Clauses Act, XXIX of 1987 and as such, the provisions of Ordinance II of 1982 have been illegally applied in the instant case in the matter of assessment/payment of compensation of the property acquired under the provision repealed Act.

17. Upon the given facts in the instant case, the High Court Division has misconceived the principle of legitimate expectation of giving an alternative plot which the law under consideration has not provided for.

18. The High Court Division has also misconceived the provisions of law in applying the same in respect of the petitioner's case because the respondent's right, title and possession extinguished with the completion of the acquisition proceeding vesting right, title, interest and provision in the land under acquisition to the Authority inasmuch as the ex-owner/ awardee has ceased to have any right, title and possession thereto upon acquisition of land.

19. In view of the above, we find merit in the submissions of the learned Counsel for the appellants and the impugned judgment and order of the High Court Division making the Rule disposed of with directions therein are, hereby, set aside.
Accordingly, the appeals are allowed.
Ed.

Rajdhani Unnayan Kartripakkha (RAJUK) Vs. Iqbal Ahmed and others

Case No: Civil Petition for Leave to Appeal No. 872 of 2005.

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Waliul Islam ,,

Citation: V ADC (2008) 631

Case Year: 2008

Appellant: Rajdhani Unnayan Kartripakkha (RAJUK)

Respondent: Iqbal Ahmed and others

Subject: Property Law,

Delivery Date: 2006-08-28

Rajdhani Unnayan Kartripakkha (RAJUK) Vs. Iqbal Ahmed and others
V ADC (2008) 631

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin
M.M. Ruhul Amin
Md. Tafazzul Islam J

Rajdhani Unnayan Kartripakkha (RAJUK)………Petitioner
Vs.
Iqbal Ahmed and others .........Respondents

Judgment
August 28, 2006.

The suit was filed seeking declaration of lease hold right in the land in suit and for cancellation of the lease deed made in favour of the defendant No.1 by the defendant No.2. …. (2)

The High Court Division on consideration of the materials on record held that transfer was made in pursuant to the permission accorded by the RAJUK and the said transferee i.e. plaintiffs' predecessor submitted the deed of transfer, deed of agreement and deed of undertaking with the RAJUK on December 30, 1990 along with a petition with the prayer for mutation. The High Court Division also has noticed that after lapse of almost 5 years i.e. on November 9, 1995 RAJUK without mutating the name of the plaintiffs' predecessor cancelled the lease and also cancelled the letter according permission to transfer. …. (12)

The High Court Division in the afore state of the matter held that the lease was cancelled "Without hearing the original lessee or petitioners and without issuing any notice upon them, the transfer permission was cancelled, which cancellation order was not even communicated to Khaleda or to the plaintiff petitioners". The High Court Division in the background of the materials on record held that whatever were in letter dated 26.6.1988 the same was complied with though at a point of time other than the time as claimed by RAJUK to have been fixed but RAJUK sat over the matter of mutation for 5 years although prayer was made upon furnishing the requisite documents by the plaintiffs' predecessor and then went for cancellation of the lease and the letter of permission. As it is seen that whatever action RAJUK took as regard the matter of cancellation of the lease and the letter of permission, the same were taken beyond the notice of the allottee and the valid transferee. …. (13)

Lawyers Involved:
Md. Waliul Islam, Advocate-on-record-For the Petitioner.
Not represented- Respondents.

Civil Petition for Leave to Appeal No. 872 of 2005.
(From the Judgment and Order dated April 19, 2005 passed by the High Court Division in Civil Revision No. 1910 of 2003).

Judgment

Md. Ruhul Amin J.- This petition for leave to appeal has been filed against the judgment dated April 19, 2005 of a Single Bench of the High Court Division in Civil Revision No.1910 of 2003 making absolute the Rule which was obtained against the judgment and decree dated February 8, 2003 of the 2nd Court of Additional District Judge, Dhaka in Title Appeal No. 520 of 1999 dismissing the same and thereby affirming the judgment and decree dated July 12, 1999 of the 6th Court of Assistant Judge, Dhaka in Title Suit No.129 of 1999 dismissing the same.

2. The suit was filed seeking declaration of lease hold right in the land in suit and for cancellation of the lease deed made in favour of the defendant No.1 by the defendant No.2.

3. Facts, in short, are that land in suit was acquired by purchase by Md. Amanullah, predecessor of the plaintiffs, from the allottee of the RAJUK, that the transfer was made by the allottee upon obtaining permission from the RAJUK as back as on January 24, 1988, that the property in suit was allotted by the defendant No. 2 (RAJUK) to certain Khaleda Rahman and the allotment was completed by execution and registration of the lease deed between RAJUK and Khaleda Rahman, wife of Md. Mojibur Rahman, that the full consideration money of the leased land was paid and possession was duly delivered to the allottee by the RAJUK, that allottee entered into an agreement for transfer of the land in suit with Md. Amanullah, predecessor of the plaintiffs, and the RAJUK (defendant No. 2) upon obtaining requisite fee accorded permission for transfer and that the RAJUK by written order accorded permission to transfer the land to the predecessor of the plaintiffs, that after the transfer was made by the original allottee Khaleda Rahman to Md. Amanullah he RAJUK illegally allotted the land in suit to the defendant No.1 beyond the knowledge of Md. Amanullah and his vendor Khaleda Rahman although when the allotment was made to the defendant No.1 Md. Amanullah on the basis of the permission accorded by RAJUK purchased the property in suit from Khaleda Rahman and intimated the RAJUK about the acquiring of the property on the basis of permission accorded by RAJUK from Khaleda Rahman and requested the RAJUK to mutate his name i.e. Md. Amanullah's name i.e. predecessor of the plaintiffs.

4. The suit was contested by the defendant Nos. 1 and 2 by filing separate sets of written statement, stating the facts more or less common.

5. It was the case of the defendants that the suit as framed is not maintainable since defendant No.2 has allotted the land in suit to the defendant No.1, that the allotment of land made to the original lessee khaleda Rahman was cancelled on May 21, 1995 and thereafter the land in suit has been allotted to the defendant No. 1 on February 12, 1996 and finally lease deed was executed and registered on March 23, 1996 in favour of the defendant No. 1 and he is in possession of the land. It was the case of the RAJUK that Md. Amanullah, the predecessor of the plaintiffs, did not file agreement, affidavit and certified copy of the registered document within the stipulated period of 4 months as was in the letter according permission to transfer and as such the RAJUK cancelled the allotment on May 21, 1995 and upon such cancellation allotted the land in suit to the defendant No. 2 on observation of the formalities.

6. The trial Court dismissed the suit on the finding that the lessor cancelled the lease legally and as such the plaintiffs' predecessor by purchase from the lessee Khaleda Rahman did not acquire any right, title and interest in the land in suit, that RAJUK cancelled the permission for transfer and thereupon allotted the land to the defendant No.1 and that after such allotment executed and registered lease 1 deed in favour of the defendant No.1 and as such lease deed executed between defendant Nos. 1 and 2 is not void.

7. The plaintiffs went on appeal. The appellate Court dismissed the appeal upon observing that since papers as per terms and conditions set by the RAJUK were not submitted and consequent thereupon cancellation of the lease by the RAJUK was quite legal, that plaintiffs failed to prove that they are in possession of the land in suit and that the papers submitted from the side of the defendant No. 1 show that he is in possession of the land, that plaintiffs being not in possession of the land the suit is barred under Section 42 of the Specific Relief Act.

8. Plaintiffs moved the High Court Division in revisional jurisdiction and obtained the Rule. It was contended before the High Court Division that plaintiffs' predecessor acquired the land from the lessee Khaleda Rahman who transferred the land in suit upon obtaining permission from RAJUK and that plaintiffs' predecessor having purchased the property applied to the RAJUK for mutation on December 30, 1990 and thus RAJUK had the information about the transfer in favour of the plaintiffs' predecessor but illegally cancelled the allotment made to Khaleda Rahman on September 11, 1995, although at that time Khaleda Rahman was not the lessee and that plaintiffs' predecessor was the owner of the land and to that effect intimation was made to the RAJUK. It was also contended that cancellation of allotment was made illegally without having any notice to either Khaleda Rahman or Md. Amanullah. It was further contended that after purchase by Md. Amanullah on the basis of permission granted by the RAJUK he submitted all the papers i.e. kabala by which Md. Amanullah acquired the property, affidavit and the other papers as well as mutation fees.

9. The learned Advocate submitted that lower appellate Court was in serious error in holding that the suit as framed was not maintainable in that plaintiffs sought for declaration of his lease hold right and also prayed for cancellation of the lease made by RAJUK in favour of the defendant No. 1.

10. The learned Counsel for the defendant opposite party No.1 submitted that RAJUK after compliance of due procedure allotted the land to defendant No. 1 and that he got his name mutated and that allotment was made in lieu of his earlier allotment and that lease deed having been executed and registered between him and the RAJUK he has right, title and interest in the land in suit, that RAJUK cancelled the allotment since the condition of the letter granting permission to transfer was not complied with and as such permission to transfer was cancelled and the permission to transfer having been cancelled plaintiffs' predecessor by purchase from the original lessee Khaleda Rahman did not acquire any interest in the land in suit.

11. The learned Advocate for the opposite party No. 2 (defendant No. 2) submitted that plaintiffs' predecessor or the plaintiffs were not recognised by the RAJUK as the lessee of the land in suit and as such RAJUK was not required to serve any notice to plaintiffs or to their predecessor in terminating the lease which was earlier made to Khaleda Rahman from whom plaintiffs' predecessor said to have purchased the land in suit, that original lessee Khaleda Rahman was duly informed about the matter of cancellation of the lease as well as the cancellation of the permission accorded earlier, that it was the stipulation in the lease deed that if transfer is made before making any construction the lease shall stand cancelled and the land shall vest in the lessor and that transfer having been made without making any construction and that permission having been sought for transfer in that state and that finally the lessee Khaleda Rahman has transferred the land without making construction and thus having had violated the condition in the lease deed, RAJUK was quite legal in cancelling the lease of Khaleda Rahman, that lessee Khaleda and her proposed transferee having not submitted the papers as were required to be submitted in terms of letter dated June 20, 1988 issued by the RAJUK, the RAJUK in cancelling the lease deed did not commit any illegality, that the plaintiffs' predecessor submitted the requisite papers beyond the period fixed in the letter according permission for transfer i.e. on December 30, 1990 and as such lease was cancelled on November 9, 1995 and the letter according permission was also cancelled. It was also contended on behalf of the RAJUK that since transfer to the plaintiffs' predecessor was not in accordance to the terms and conditions set forth by RAJUK and consequently the transfer being not legal, the RAJUK was not required to serve any notice on the predecessor of the plaintiffs, that plaintiffs failed to prove their possession in the land in suit and that opposite party was successful in proving that he is in possession of the land in suit.

12. The High Court Division on consideration of the materials on record held that transfer was made in pursuant to the permission accorded by the RAJUK and the said transferee i.e. plaintiffs' predecessor submitted the deed of transfer, deed of agreement and deed of undertaking with the RAJUK on December 30, 1990 along with a petition with the prayer for mutation. The High Court Division also has noticed that after lapse of almost 5 years i.e. on November 9, 1995 RAJUK without mutating the name of the plaintiffs' predecessor cancelled the lease and also cancelled the letter according permission to transfer.

13. It was the case of the RAJUK that it wrote a letter on 26.6.1988 directing the lessee and the plaintiffs' predecessor to submit the papers i.e. deed of agreement, deed of undertaking and deed of transfer etc. within 4 months from the date of issuance of the said letter and that the papers as required to be submitted in the light of the letter dated 26.6.1988 having not been furnished the RAJUK cancelled on September 26, 1995 the lease as well as the letter according permission to transfer. It was the case of the plaintiffs that their predecessor and the original lessee Khaleda Rahman did not receive any such letter. From the RAJUK's side no attempt was made to establish before the Court that the said letter was served on the plaintiffs' predecessor and the original lessee Khaleda Rahman and the said letter was also not produced in Court. The High Court Division in the afore state of the matter held that the lease was cancelled "Without hearing the original lessee or petitioners and without issuing any notice upon them, the transfer permission was cancelled, which cancellation order was not even communicated to Khaleda or to the plaintiff petitioners". The High Court Division in the background of the materials on record held that whatever were in letter dated 26.6.1988 the same was complied with though at a point of time other than the time as claimed by RAJUK to have been fixed but RAJUK sat over the matter of mutation for 5 years although prayer was made upon furnishing the requisite documents by the plaintiffs' predecessor and then went for cancellation of the lease and the letter of permission. As it is seen that whatever action RAJUK took as regard the matter of cancellation of the lease and the letter of permission, the same were taken beyond the notice of the allottee and the valid transferee.

14. In that state of the matter we are of the view High Court Division was quite correct in holding that RAJUK's action was not legal. The High Court Division in the background of the materials on record has observed "that the original allottee did not violate any condition of the lease deed because she got time extension from RAJUK for construction and also permission to transfer the land without construction and subsequently transferred the property in favour of Amanullah. Amanullah also in compliance with the requirements of RAJUK, deposited transfer fees, service charges and the relevant documents with RAJUK for mutation but as he was not aware of the prescribed time limit of such submission directed by the letter dated 26.6.88, he submitted those at a belated stage. The opposite parties could not show anything before the courts below that the letter dated 26.6.88 was received by Amanullah or by the plaintiff petitioners. The courts below failed to consider that before canceling of the transfer permission notice ought to have been issued to the prospective transferee who has filed the required documents before RAJUK and was awaiting mutation". The High Court Division reversed the finding of the lower appellate Court as to maintainability of the suit since plaintiff prayed for declaration of his lease hold right and also prayed for cancellation of the lease deed by RAJUK in favour of the defendant No. 1 and thereupon affirmed the finding of the trial Court that the suit is maintainable.

15. It is seen from the judgment of the appellate Court that the said Court held that the suit was not maintainable since the plaintiffs failed to prove their possession in the land in suit and that defendant No.1 was able to prove his possession. The appellate Court was in serious error in that no material was brought on record from the side of the RAJUK that after cancellation of the lease of Khaleda Rahman or for that matter letter according permission for transfer the RAJUK obtained the possession of the land in suit from Khaleda Rahman. It is not denied by the RAJUK that possession of the property in suit was made over to Khaleda Rahman. Nor it was the case of RAJUK that Khaleda Rahman had not gone into possession after execution and registration of the lease deed. Since no material was placed before the Court from the side of the RAJUK that after cancellation of the lease of Khaleda or for that matter letter according permission for transfer to the plaintiffs' predecessor the RAJUK took over the possession. So whatever materials produced before the Court from the side of the defendant No.1 in assertion of his claim of possession were mere paper transactions and thus the appellate Court was in error in holding that the defendant No.1 has proved his possession in the land in suit and thereupon held that the suit was not maintainable since consequential relief in that regard was not prayed for.
In the background of the discussions made hereinbefore we find no merit in the petition.
Accordingly the petition is dismissed.
Ed.

Rajib Ullah and another Vs. The State [4 LNJ AD (2015) 141]

Case No: Criminal Petition for Leave to Appeal No. 479 of 2011

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mr. A. K. M. Foyez,,

Citation: 4 LNJ AD (2015) 141

Case Year: 2015

Appellant: Rajib Ullah and another

Respondent: The State

Subject: Inherent Power of the Court,

Delivery Date: 2015-01-11

APPELLATE DIVISION
(CRIMINAL)

Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,

Judgment on
11.01.2015

}
}
}
}

Rajib Ullah and another
...Petitioners
Versus
The State
...Respondent

Code of Criminal Procedure (V of 1898)
Section 561A
In a proceeding under section 561A of the Code of Criminal Procedure praying for quashment of a judgment and order of conviction and sentence there is no scope for re-assessment of the evidence on record. The inherent power conferred by section 561A of the Code of Criminal Procedure may be exercised to quash a proceeding or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice. . . . (7)

For the Petitioners: Mr. A. K. M. Foyez, Advocate instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent: Not represented.

Criminal Petition for Leave to Appeal No. 479 of 2011

JUDGMENT

Nazmun Ara Sultana, J.

This Criminal Petition for Leave to Appeal, at the instance of the convicted accused persons, is directed against the judgment and order dated 18.08.2011 passed by the High Court Division in Criminal Miscellaneous Case No.21816 of 2009 making the rule absolute in part.

The above mentioned Criminal Miscellaneous Case No.21816 of 2009 was started on an application under section 561A of the Code of Criminal Procedure filed by the present accused leave-petitioners praying for quashment of the judgment and order dated 01.07.2009 passed by the Druto Bichar Tribunal, Sylhet in Druto Bchar (Sessions) Case No.03 of 2008 arising out of G.R. Case No.23 of 2006 corresponding to Chhatak Police Station Case No.04 dated 10.02.2006 convicting the accused-petitioners Rajibullah and Tazuddin under sections 148/449/326/ 385/302/34 of the Penal Code and sentencing them to 3 years rigorous imprisonment with fine of Tk.2,000/-, in default, to suffer 2 months rigorous imprisonment more under section 148 of the Penal Code, sentencing them to 7 years rigorous imprisonment with fine of Tk.3,000/-, in default, to suffer 4 months rigorous imprisonment more under section 449 of the Penal Code, 5 years rigorous imprisonment under section 385 of the Penal Code, 7 years rigorous imprisonment with fine of Tk.3,000/-, in default, to suffer 5 months rigorous imprisonment under section 326 of the Penal Code and also sentencing them to imprisonment for life with fine of Tk.10,000/-, in default, to suffer 6 months rigorous imprisonment under sections 302/34 of the Penal Code.

The prosecution case, in short, was that the informant Manik Mia was a grocer at Moinpur Bazar. The accused Rajibullah, Tazuddin, Jwel, Saiful, Salam, Nazir, Nizam and others used to put pressure on Manik Mia on demand of “Chanda” and also threatened him to kill his wife if their demand was not met. That all the accused persons forming unlawful assembly demanded Tk.10,000/- from Manik Mia just before one week of the occurrence. That in the night flowing 07.02.2006 at about 2.00 A.M. the accused persons started to untie the tin of the roof of the hut of Manik Mia and getting that sound, Manik Mia came out of his hut and his wife deceased Rokeya Begum also came out and started hue and cry. Manik Mia saw the accused persons by his torch light. In that situation the accused persons attacked Manik Mia and his wife. Accused Rajibullah inflicted a dao blow on the shoulder of Manik Mia, accused Tazuddin inflicted a dagger blow on the left elbow of Manik Mia causing injuries. Rokeya Begum, the wife of Manik Mia came forward to save her husband and then accused Rajibullah, Tazuddin and other accused persons started to assault her wife and dragged her under a jackfruit tree in their yard and assaulted her indiscriminately and twisted her neck. At their hue and cry the neighbouring people came and saw the occurrence. Both the informant Manik Mia and his wife Rokeya Begum were treated by doctor and ultimately Rokeya Begum succumbed to her injuries on 21.03.2006. The informant lodged an ejher with Chatak Police Station against the accused persons. The police, after completion of investigation, submitted charge sheet against the accused persons under sections 449/323/ 325/326/307/385/302/34 of the Penal Code.

The trial court framed charges under sections 148/449/326/385/302/34 of the Penal Code against the present accused-leave-petitioner and others. Ultimately after completion of trial the trial court convicted and sentenced these 2 accused-petitioners only as aforesaid with a direction that all sentences would run concurrently. The trial court found the other 8 accused persons not guilty and acquitted then of all the charges by the judgment and order dated 01.07.2009.

These 2 convicted accused-petitioners though were in jail custody, but they failed to prefer any appeal against the impugned judgment and order within the prescribe time and as such they filed the above mentioned application under section 561A of the Code of Criminal Procedure praying for quashment of their conviction and sentence and obtained a rule. Ultimately a Division Bench of the High Court Division, after hearing the learned Counsel of both the sides and on examination of the evidence on record made that rule absolute in part quashing the conviction and sentences of the accused-petitioners under sections 148/449/385 and 326 of the Penal Code only. The High Court Division upheld the conviction and sentences of these accused-leave-petitioners under sections 302/34 of the Penal Code making observations thus:

“From a bare reading of the evidence of the eye-witnesses, namely, the P.W.1 Manik Mia, the P.W.7 Tofail Ahmed Tuhin and the P.W.8 Md. Tarke Ahmed together with the evidence of the P.W.12 Dr. Abul Mansur and the P.W.13 Dr. Himangshu Lal Roy, it cannot be said by any stretch of imagination that it is a case of no legal evidence. Assuming for the sake of argument that the evidence of those prosecution witnesses is unreliable or shaky or slender that cannot be a ground for quashing the conviction of the petitioners in this proceeding under section 561A of the Code of Criminal Procedure.”
“......... this court not being the court of appeal cannot sift or re-asses or re-evaluate the prosecution evidence on record and arrived at its own findings.”

Mr. A. K. M. Foyez, the learned Advocate for the accused-leave-petitioners though has made some submissions, but he could not assail the above quoted observation and findings of the High Court Division.

We find no wrong or infirmity in the above observations and findings of the High Court Division. In a proceeding under section 561A of the Code of Criminal Procedure praying for quashment of a judgment and order of conviction and sentence there is no scope for re-assessment of the evidence on record. The inherent power conferred by section 561A of the Code of Criminal Procedure may be exercised to quash a proceeding or even a conviction and sentence on conclusion of trial if the court concerned had no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any criminal offence or the conviction has been based on no evidence or otherwise to secure the ends of justice.

We have examined the impugned judgment of the High Court Division and also that of the trial court. We also find no ground for quashing the conviction and sentence of the leave-petitioners under section 561A of the Code of Criminal Procedure.

We find no merit in this Criminal Petition for Leave to appeal and hence it is dismissed.

Ed.

Rajshahi Development Authority Vs. Sultan Ahmed, Advocate and others, 57 DLR (AD) (2005) 158

Case No: Civil Appeal No. 292 of 2003

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Ozair Farooq,,

Citation: 57 DLR (AD) (2005) 158

Case Year: 2005

Appellant: Rajshahi Development Authority

Respondent: Sultan Ahmed, Advocate

Subject: Land Law,

Delivery Date: 2004-6-29

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Syed JR Mudassir Husain CJ
Md Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J

Rajshahi Development Authority……...........Appellant
Vs.
Sultan Ahmed, Advocate and others.............. Respondents

Judgment
June 29, 2004.

Acquisition and Requisition of Immovable Property Ordinance, 1982
Section 47
Application of the provision of the Ordinance when the property was acquired under the Act- Section 47 of Ordinance No. II of 1982 provides that all pending matters under the Act No. 13 of 1948 i.e. the Emergency Requisition of Property Act, are to be continued and disposed, of thereunder, as if it has not been repealed but the High Court Division illegally applied the provisions of the said Ordinance in the instant proceeding drawn under the said Act for payment of full compensation money at the present market rate and as such application of the said provision is not sustainable in law….… (8)

Cases Referred to:
Bangladesh vs. Basaratullah 42 DLR (AD) 91; Abdul Gafur Khan and another vs. Government of Bangladesh and others 42 DLR (AD) 99.

Lawyers Involved:
Md. Ozair Farooq, Senior Advocate, instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Appellant.
Sultan Ahmed, Advocate, (appearing in person), instructed by Md. Aftab Hossain, Advocate‑on‑Record-For Respondent No. 1.
Not represented‑Respondent Nos. 2‑6.

Civil Appeal No. 292 of 2003
(From the judgment and order dated 29th April 2002 passed by the High Court Division in Writ Petition No. 1931 of 2001).

JUDGMENT

Md. Fazlul Karim J:

1. This appeal by leave is to consider the points raised in the leave petition as under:

"Mr Mohammad Ozair Farooq, the learned Counsel for the petitioner, has submitted with reference to section 48 of the Acquisition and Requisition Ordinance, 1982 that the proceeding in the instant case having been taken pursuant to the Emergency Requisition of Property Act of 1948, the impugned order directing payment of full compensation money at the present market rate in the provision of Order 11 of done without lawful authority."

Mr. Sultan Ahmed, the learned Advocate appearing in person has, however, submitted that in view of proximity of period of requisition and acquisition the writ‑petitioner is entitled to adequate compensation over the statutory rate for acquisition provided under the Emergency Requisition of Property Act, 1948 and has referred to a decision in the case of Bangladesh vs. Basaratullah reported in 42 DLR (AD) 91 the relevant passage is quoted as under:

"It was said in the case that though notice for acquisition under section 5(a) was served in 1962 the land was six years when the value of the land increased to a great extent. Government did not explain why notice was served in 1962 but acquisition was made in 1968. Although there is no particular period within which a requisitioned land is to be acquired after notice for acquisition has been served, yet when the value of the land was increasing but that of money was decreasing the compensation to be paid now on the valuation of the year 1962 would cause substantial injury to the land owner. There should be some proximity between the date of notice for acquisition and that of actual acquisition."

2. Mr. Ozair Farooq, the learned Counsel appearing for the appellant, submits that the proceeding having been taken to requisition the land with a view to acquisition in LA Case No. 161 of 1978‑79 under the provision of Emergency Requisition of Property Act for the development of commercial area, Zone‑13 under Rajshahi Town Development Authority and the compensation money thereto having been determined complying with the provision of section 5 and accordingly, assessed the compensation, the appellant is not liable to pay the present compensation money at the market rate to the writ‑petitioner inasmuch as the provision of Requisition and Acquisition of Property Act, 1982 has no manner of application in respect of the pending acquisition proceeding under the Act of 1948.

3. Mr. Sultan Ahmed, the respondent No.1 appearing in person has, however, submitted that though notice for acquisition was served soon after the proceeding has been started in 1978‑1979 but no notice under section 5(1) (a) and 5(3) of the Act were served inasmuch as to gazette notification as required under section 5(7) of the Act was ever published. Moreover, the requiring body did not utilise the entire 12 decimals of land for which the writ‑petitioner‑respondent prayed for the requisition of the property or failed to publish the notification of acquisition under section 5(7) of the Act on payment of compensation at the present market rate. Mr. Ahmed has referred to a decision in the case of Bangladesh vs. Basharatullah reported in 42 DLR (AD) 91 in support of his contention and submitted that since the date of requisition the value of the land having been increased substantially, the writ-petitioner is entitled to compensation at the present market rate for acquisition of his property on the principle that there should be proximity between the notice of acquisition and that of actual acquisition.

4. The land was alleged to have been requisitioned for the purpose of acquisition under the Emergency Requisition of Property Act as back in 1978 under section 3 thereof but the process of acquisition of the land in question was not completed and, as such, the land was not acquired. Though the local Deputy Commissioner requisitioned the land for the purpose of acquisition but did not submit the case with his report for the decision of the Government and the latter also did not make any decision as to the acquisition required under sub‑sections (5) and (6) of section 5 of the Emergency Requisition of Property Act, 1948. Moreover, nothing has been produced to show that gazette notification as required under sub‑section (7) of section 5 of the said Act giving notice of the acquisition of the land was ever made. The acquiring authority as also required under sections 5(3) and 5(7) of the Act failed to take action in accordance with law by publishing gazette notification thereby depriving the respondent of adequate compensation. The respondent is, entitled to compensate at the present market rate for the acquisition thereof at this belated stage. The respondent has accordingly, submitted that there should be some proximity between the date of requisition, the notice for acquisition and that of the actual acquisition and referred to a decision in the case of Government of Bangladesh vs. Basharatullah & ors reported in 42 DLR (AD) 91.

5. Mr. Md. Ozair Farooq has, however, submitted that the land having been acquired properly under the Emergency Requisition of Property Act, 1948, there is no scope whatsoever to apply of the provision of Acquisition and Requisition of Immovable Ordinance, 1982 as has been illegally applied by the High Court Division inasmuch as in spite of the repeal of the Act all proceeding and matters relating to notice, notification, order, etc. relating to requisition and acquisition of any property, compensation or award in respect of the said property shall be continued and disposed of, as if the said Act has not been repealed. The learned‑ Counsel has further submitted that the land of the writ‑petitioner is entitled to be assessed with compensation at the market value to be determined with reference to the date of requisition under section 3 of the Act inasmuch as there was no such provision under the Act to make the payment of compensation at the present market value as has been illegally ordered by the High Court Division. The learned Counsel has further submitted that the decision referred to by the respondent reported in 42 DLR (AD) 91 is not applicable in the facts and circumstances of the present case in view of the due service of notice of such requisition and acquisition under the Emergency Requisition of Property Act inasmuch as the amendment as to the operative part of the order making the Rule absolute by adding the words present market rate for payment of full compensation money at the present market rate in accordance with the provision of Order II of 1982 was not in accordance with law.

6. The High Court Division has found on scrutiny of the record of LA Case No. 161 of 197879 that the process of acquisition of the land in question was not completed and the Deputy Commissioner though requisitioned the land for the purpose of acquisition as well did not submit the case with his report for the decision of the Government and accordingly, Government has not made any decision as to the acquisition required under sub‑section (5) of section 5 of the Emergency Requisition of Property Act and no gazette notification as required sub‑section (7) of section 5 of the Requisition of Property Act was ever published The High Court Division accordingly held that the land in question has not been acquired till date as per provision of the Emergency Requisition of Property Act, 1948.

7. In the aforesaid premises of the case, though notice under section 5 of the Act was issued and served as back in 1978‑79 but the formalities as required for decision of the Government was not properly complied with within, time and no notification under section 5(7) of the Act having been published so far within reasonable proximity between the date of acquisition, notice of acquisition and the actual acquisition and the gap in the matter of assessment of compensation resulting in escalation of the price of the land meanwhile due to acute inflation since the date of requisition and the land still remaining under possession of the respondent but the price at present has increased to a great extent inasmuch as the Government could not also explain the period in between, has caused substantial injury to the owner of the land under acquisition. In the case of Abdul Gafur Khan and another vs. Government of Bangladesh and others reported in 42 DLR (AD) 99 which arose out of dispute regarding assessment of compensation in which the learned Judge of the High Court Division fixed the compensation taking the average of the value of the acquisition between the period of 1961 in which the land was requisitioned and the year 1968 in which the land was finally acquired and on that basis fixed valuation instead of assessment of compensation on the average of the value of land during the period of 24 months prior to the date of service of notice for acquisition under section 5(l) of the Emergency Requisition of Property Act. Leave was granted in the said case to examine whether the assessment as finally made by the learned Single Judge was in accordance with law governing the subject.
This Division accordingly held that:

“..........though notice for acquisition under section 5(a) was served in 1962 the land was actually acquire in 1968, that is, after the expiry of 6 years when the value of the land increased to a great extent. Government did not explain why notice was served in 1962 but acquisition was made in 1968. Although there is no particular period within which a requisitioned land is to be acquired after notice for acquisition has been served, yet when the value of the land was increasing but that of money was decreasing the compensation to be paid now on the valuation of the year 1962 would cause substantial injury to the land owner. There should be some proximity between the date of notice for acquisition and that of actual acquisition. But that as it may, the point of law now, taken during the hearing of the appeal before us was not raised before any of the Courts below. The learned Single Judge missed to appreciate law for laches of the parties, particularly, the Government; but the valuation at Taka 30,000 per acre is found to have met the ends of justice, fairness and equity in this case in the circumstances as shown above. We, therefore, do not think that any  interference is called for. Substantial justice is found to have been done to both the parties."

8. Section 47 of the Acquisition and Requisition of Property Ordinance No. 2 of 1982 provides that all pending matters under the Act No 13 of 1948 i.e. the Emergency Requisition of Property Act, is to be continued and disposed of thereunder, as if it has not been repealed but the High Court Division illegally applied the provision of Ordinance II of 1982 i.e. the Acquisition and Requisition of Immovable Property Ordinance, 1982, in the instant proceeding drawn under Act No.13 of 1948 for payment of full compensation money at the present market rate and, as such, the application of the said provision is not sustainable. However, although the land in question was requisitioned in 1978‑79 but the same was not acquired publishing any notification as required under section 5(7) of the Emergency Requisition of Property Act, 1948 to get the land acquired permanently on payment of compensation for which the respondent (writ‑petitioner) on 31‑10‑1999 and 25‑3‑2001 sent applications to the appellant praying for de‑requisition of the land in LA Case No. 161 of 1978‑79 and/or either to get it permanently acquired by publishing the notification under section 5(7) of the Act on payment of compensation at present day market value or release the same from requisition and again on 10‑5‑2001 sent legal notice.

9. While applying the proposition of law enunciated in 42 DLR (AD) 99 in the matter of assessment of compensation that there should be some proximity between the requisition, notice of acquisition and of actual acquisition, in the facts and circumstances of the instant case that no step has yet been taken for acquisition of the land on publication of the notification under section 5(7) of the Act, we direct the authority to take immediate steps to that effect and assess the compensation at present market value. Our aforesaid order for assessment of compensation at present market value is passed to secure substantial justice in the case in order to avoid any alleged substantial injury, that has been suffered by the writ‑petitioner and is confined to thefacts and circumstances of this case only.

The appeal is dismissed without any order as to costs.

Ed.

Rajuk Karmachari Bahumukhi Samabaya Samity and another Vs. M/S. Al-Razib Traders, 1 LNJ (2012) 532

Case No: Civil Revision No. 2603 of 2011

Judge: A. F. M. Ali Asgar,

Court: High Court Division,,

Advocate: Mr. A. F. Hassan Ariff,Mr. Mahbubey Alam,,

Citation: 1 LNJ (2012) 532

Case Year: 2012

Appellant: Rajuk Karmachari Bahumukhi Samabaya Samity and another

Respondent: M/S. Al-Razib Traders

Subject: Arbitration/Mediation,

Delivery Date: 2012-05-03

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

A. F. M. Ali Asgar, J.

Judgment
03.05.2012

Rajuk Karmachari Bahumukhi Samabaya Samity and another

….Petitioners

Vs.
M/S. Al-Razib Traders

…Opposite Party

Code of Civil Procedure (V of 1908)
Section 115(1)
Order XXXIX, rules 1 and 2
Arbitration Act (I of 2001)
Sections 2 (b), 7 (A) Kha and Ummo, 12 and 48
In an Arbitration Miscellaneous Case filed under section 12 of the Arbitration Act, 2001, the opposite party herein filed an application for granting injunction restraining the petitioners from making any construction over the suit property which was allowed by the impugned judgment and order.

It is contended on behalf of the opposite party that no civil revision or appeal shall lie against an order passed by the learned District Judge under section 7 (A) of the Arbitration Act. In view of the cited decision it appears that as a District Judge while he is acting in pursuance of the statute empowering him by section 12 of the Arbitration Act and section 7(A) of the said Act as well, he is performing duties as a Judge of the civil jurisdiction and he is not a person designate but a Court subordinate to the High Court Division for which present civil revisional application is maintainable. The learned District Judge very rightly after evaluating the papers and documents submitted by the parties and some of them are admitted documents and in such circumstances the learned District Judge passed the impugned judgment in according with section 7 (A) of the Arbitration Act, 2001. ….(1, 3, 20 and 20).

A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172, Managing Director, Rupali Bank Limited and others Vs. Tafazal Hossain and others 44 DLR(AD) ref.

Mr. Mahabubay Alam, Senior Advocate with
Mr. M. Aminuddin, Advocate and
Mr. Md. Harun-Or-Rashid, Advocate

----For the Petitioner

Mr. A. F. Hassan Ariff, Senior Advocate with
Mr. Md. Musharraf Hossain Mojumder, Advocate.

--- For Opposite party

Civil Revision No. 2603 of 2011

JUDGMENT

A. F. M. Ali Asgar, J:

This rule was issued calling upon the opposite party to show cause as to why the judgment and order dated 09.01.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the second party/petitioners from making any construction over the suit property should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.         Pending hearing of the rule, the petitioners were permitted to complete the construction of the 3^rd floor at their own risk.

3.         Fact relevant for the purpose of disposal of the rule in short are that
     The opposite party herein as petitioner filed an application under Section 12 of the Arbitration Act, 2001 for appointment of Arbitrator in the Court of learned District Judge, Dhaka which was registered as Arbitration Miscellaneous Case No. 477 of 2010.

      The case of the 1^st Party before the learned District Judge is that;

That the 1^st party is a bonafide contractor doing construction business and the second party are the registered Co-Operative Society of the Rajuk Employees and run by its by-laws
That the Second party got 2 bighas of land from Rajuk by a registered lease deed and they decided to construct a 10 storied building therein to raise fund.
The petitioner was appointed as contractor/Developer and agreement was executed in that behalf and a power of attorney was executed infavour of the 1^st party. Subsequently by amending the agreement the arbitration clause was incorporated.
Thereafter a new committee of the second party was elected and in the Extra Ordinary General Meeting and annual general meeting was held and power of attorney was retified with certain amendment.
Thereafter 1^st party under took the foundation work. The further case of the 1^st party is that they have invested 6.5 crores Taka and there was no investment of the 2^nd party and has constructed building upto 3^rd Floor and has paid Tk. 1 crore and 10 lacs as profit of allotment of shop and spaces to the second party.
As per the amended agreement the 2^nd party was promise bound to got the 4^th Floor to 6^th Floor constructed by the 1^st party but in violation of the contract they made advertisement for construction of space/floor from 4^th Floor to 9^th Floor and in such circumstances the 1^st party issued a legal notice and also requested by writing letter to the 2^nd party for issuance of work order for construction 4^th and 5^th Floor as per the agreement.
That in the above circumstances the 1^st party filed the application for appointment of arbitrator.

4.     During pendency of the said Arbitration Miscellaneous case the 1^st party filed an application under order 39 rule 1 and 2 of the code of the civil procedure and section 7 (A), (E) of the Arbitration Act 2001 with a prayer for temporary injunction. The application was filed on 08.9.2010.

5.     That against the said application filled by the 1^st party the 2^nd party appeared before the Court and contested the said application for injunction by filing written objection and denied all the material allegation made in the said application.

6.     The learned District Judge after hearing both the parties was pleased to allow the application under order 39 rule 1 and 2 of the Code of Civil Procedure and 7 (A) (E) of the Arbitration Act and passed order of temporary injunction on 09.1.2011 on allowing the said application for temporary injunction restraining the rule petitioner i.e. the 2^nd party of the arbitration case from making any construction   on the land in question as mentioned in the schedule of the application.

7.     Against the aforesaid order dated 09.1.2011 the present petitioner as appellant filed F.M.A. No 63 of 2011 before this Court and after filing of the appeal the appellants as petitioner filed an application for stay and the High Court Division issued a Civil Rule on 21.3.2011 and also passed an ad-interim order of stay. Subsequently the respondent filed a Civil Miscellaneous petition before the Appellate Division and the Appellant Division by the order dated 29.5.2011 directed a Division Bench of this Court to hear the matter by 12.6.2011 and allowed the order of status-quo granted by the learned Judge in Chamber to continue till the date i. e. 12.5.2011.

8.     When the appeal was taken up for hearing by a Davison Bench of this Court it came to discussion and light that in view of the provision of section 48 of the Arbitration Act the appeal is not maintainable accordingly the appellant did not pressed the appeal and by the order dated 22.6.2011 the appeal and the rule were dismissed for non prosecution. Thereafter the appellants of the said Miscellaneous appeal i.e. the 2^nd party of the arbitration proceeding as petitioner filed a civil revisional application as per provision of section 115(1) of the Code of Civil Procedure against the Judgment and order dated 9.1.2011 passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 granting injunction restraining the rule petitioner i.e 2^nd party making any construction on the land in question. At the time of the issuance of the rule the rule issuing Court was pleased to issue an ad-interim order in the like manner “pending hearing of the rule, the petitioner are permitted to complete the construction of 3^rd floor at their own risk” .

9.     Against the aforesaid order dated 7.4.2011 permitting the 2^nd party rule petitioner to complete the construction of the 3^rd floor at their own risk the opposite party i.e. the 1^st party of the arbitration proceeding filed provisional civil petition for Leave to Appeal No. 568 of 2011 in the Appellate Division and the honorable Judge in Chamber was pleased to disposed of the said provisional civil petition for Leave to Appeal No. 568 of 2011 finding that “In view of the submission of the learned counsel Respondent No. 1 is directed not to construct beyond 3^rd floor till disposal of the revisonal application” vide order date 25.7.2011.

10.   Meanwhile, the opposite party filled an application for vacating the order dated 19.7.2011 passed by this Court in the civil revision permitting the petitioner to complete the 3^rd floor at their own risk at the time of issuance of the rule.

11.   When this application for vacating the order of stay came up for hearing before this Court on 19.7.2011 this Court after hearing both the parties and on the verbally undertaking given by Mr. Aminuddin the learned advocate for the petitioner that he has already instructed from his client not to proceed with construction of 3^rd floor till disposal of the rule under that circumstance since both the parties agreed on this point to get the civil revision heard and disposed of and the mater was fixed for hearing and on conclusion of hearing the Court delivers this judgment.

12.   At the very beginning of hearing Mr. Mahabubey Alam, the learned advocate appearing on behalf of the rule petitioner has submitted that the learned District Judge while acting as presiding Judge in arbitration proceeding has no power to issue an order of injunction.

13.   Mr. Mahabubay Alam referring to section 2(b) of the Arbitration Act, simultaneously he has submitted that section 7 (A) of the Arbitration Act contained ouster of jurisdiction of Civil Code.

14.   As such accordingly Mr. Mahabubey Alam the learned advocate for the petitioner submitted that the order of injunction passed by the learned District Judge, Dhaka in Arbitration Miscellaneous case No. 477 of 2010 is ifsofacto an illegal order which can not be sustainable in law, accordingly, he prays that the impugned order is liable to be set aside and the rule be made absolute.

15.   In support of his argument Mr. Mahabubay Alam has referred to a case of our Appellate Division being the case of A. K. M. Ruhul Amin Vs District Judge and Appellate Election Tribunal, Bhola and others Abul Kalam Azad Vs. Nur Hossain Howlader and others, Abdul Bari Vs. Shahjahan Chowdhury and others, Mohammad Hossain Ali Sarker Vs. Mohammad Mobarak Ali and others reported in 38 DLR(AD) 172.

16.   The case referred to by Mr. Mahabubay Alam although related to matter in respect of Election Tribunal and Election Appellate Tribunal which is not exactly in agreement with the facts of the case before us. Even than the principle that has been laid down in the aforesaid case being almost similar in nature with the present case as because the District Judge was Election Appellate Tribunal Judge and here the District Judge has been given power as per provision of section 12 of the Arbitration Act wherein our Appellate Division found that the District Judge acting as an election appellate tribunal is not a person designate but a Court subordinate to the High Court Division’’. In this view of the matter although Mr. A. F. Hassan Ariff the learned advocate appearing on behalf of the opposite parties has very strenuously submitted that no appeal or revision lies against an order passed by the District Judge in a arbitration case as per provision of Arbitration Act so the District Judge here is not amenable to the High Court Division. Mr. Hassan Ariff further submits that arbitration act is a special law for adjudication of the dispute between the parties who agreed for holding of arbitration as such it shall prevail over general law. And Mr. Ariff further   submits that the Arbitration Act of 2001 is substantive as well as a procedural law. Where right of appeal has been specifically provided within the frame work of arbitration act and no provision of revision has been created in the arbitration act so no Civil Revision will lie in the High Court Division.

17.   He next submits that since the statute has given no right to the litigant to file civil revision in the High Court Division and the arbitration act does not provide such jurisdiction to the High Court Division to exercise such power under arbitration act. The present Civil revisional application under section 115(1) of the Code of Civil Procedure is not at all maintainable and the same is liable to be dismissed and the rule be discharged accordingly.

18.   In support of his submission Mr. A. F. Hassan Ariff has referred to a decision of our Appellate Division being the case of Managing Director , Rupali Bank Limited and others Vs. Tafazal Hossain and others reported in 44 DLR(AD) 260   wherein it has been found by our lordships in the Appellate Division “ Relation between general law and special law availability of remedy – If any legal remedy is ordinarily available under both general law and special law, the remedy prescribed by the special law must be sought in exclusion of the one available under the general law”.

19.   The most pertinent question which has been agitated and opposed by the petitioner and opposite parties is regarding maintainability of the civil revision in the High Court Division against the order of ad- interim temporary injunction passed by the learned District Judge in arbitration Miscellaneous case; this point is main issue to be decided here.

20.   On perusal of the papers and documents filed by both the parties in as much as after hearing both the parties, the rule petition and the counter affidavit filed by the opposite party and since it is agreed point that the learned District Judge issued order of temporary injunction in pursuance of Provision of section 7(A) kha and Ummo of the Arbitration Act of 2001 which has been amended in 2004. Thus I find that the learned District Judge has rightly and legally passed the order being enabling him by section 7 (A) of the Arbitration Act. Regarding the maintainability of the civil revision the point that has been submitted by Mr. Hassan Ariff that no civil revision or appeal shall lie against an order passed by the District Judge, I am unable to accept the contention of Mr. Ariff. In my view since there is provision of appeal as per provision of section 48 of the Arbitration Act although in respect of very specific limited ground even than there is provision of appeal and although the arbitration act does not specifically provided for revision against an order passed by the District Judge in arbitration Miscellaneous case even then in view of the decision that has been referred to by Mr. Mahabubey Alam the learned advocate for the petitioner being the case reported in 38 DLR (AD) 172 I hold the same view that as a District Judge while he is acting in pursuance of the statute enabling him by section 12 of the arbitration act as well as section 7(A) of the Arbitration Act. He is performing duty as a Judge of the civil jurisdiction and he is not a person designate but a Court subordinate to the High Court Division. Under that circumstance I find that this civil revisional application is maintainable.

21.   Now I am to find regarding the merit and veracity of the order of injunction passed by the learned District Judge. I have gone through the impugned order which I find to be a well discussed and well evaluated order referring to the facts and circumstance and merit of the case referred to by both 1^st party and opposed by the 2^nd party and the learned District Judge after perusal of all the papers and documents he has passed the impugned order rightly after evaluating the papers and documents submitted by the parties and on certain facts and circumstance which are admitted by both the parties Under that circumstances the learned District Judge being empowered by section 7(A) of the Arbitration Act on very meticulous discussion of facts and circumstances and materials available from the papers and documents submitted by the both the parties was pleased to pass an order of temporary injunction till disposal of the arbitration miscellaneous case. At the same time the learned District Judge directed both the parties to take appropriate step for quick disposal of the arbitration miscellaneous case.

22.   So I do not find any cogent reason to interfere with such well evaluated and well discussed order of injunction passed by the learned District Judge. Thus I find no merit in the rule.

23.   In the result, the rule is discharged without any order as to costs. The impugned order of temporary injunction passed by the learned District Judge on 09.1.2011 in Arbitration Miscellaneous case No 477 of 2010 is hereby maintained.

24.   The learned District Judge is directed to hear and disposed of   the Arbitration Miscellaneous case No. 477 of 2010 within 6(six) months from date of receipt of the copy of this judgment.

Send a copy of this judgment to the Court of the learned District Judge as expeditiously as possible.

Ed.

RAJUK Vs. Jamuna Builders Ltd. and another

Case No: Civil Petition for Leave to Appeal No. 20 of 2006.

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Sigma Huda,,

Citation: 12 BLC (AD) (2007) 84

Case Year: 2007

Appellant: Rajdhani Unnayan Kartripakkha (RAJUK)

Respondent: Jamuna Builders Ltd. and another

Subject: Property Law,

Delivery Date: 2007-01-16

RAJUK Vs. Jamuna Builders Ltd. and another
12 BLC (AD) (2007) 84

Supreme Court
Appellate Division
(Civil)

Present:
Syed JR Mudassir Husain CJ
Md. Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J

Rajdhani Unnayan Kartripakkha represented by its Chairman and another.............Petitioners
Vs.
Jamuna Builders Ltd. and another....................Respondents

Judgment
January 16, 2007.

Building Construction Act (II of 1952)
Section 3B (I)(b)

On a perusal of the provision of section 3B of the Building Construction Act, 1952 it appears that before issuance of the impugned notice dated 17-11-2002 to dismantle the structures of the writ petitioners the Rajuk ought to have issued to prior show cause notice as required under section 3B(I)(b) of the said Act. …. (9)

Constitution of Bangladesh, 1972
Article 102
Building Construction Act (II of 1952)
Section 3B(5)(d)(i) and (iii)

The High Court Division after considering the provision of sub-section 5 section 3B found that the sanction if prayed for could be granted for the construction of the building if the petitioner complies with the provision of sub section (5)(d)(i) and (iii) thereof of the Act. Considering the offer of the writ petitioners to pay maximum fine i.e. 10 times of the fees for sanction of the plan as per rules, the High Court Division passed the impugned order directing to give sanction/approval to the plan which has remained pending/unattached by RAJUK for a long time but directed payment of 10 times of the fees for the sanction. It appears that the High Court Division committed no error in the decision. …. (11 & 12)

Lawyers Involved:
Sigma Huda, Advocate instructed by Sufia Khatun, Advocate-on-Record—For the Petitioners.
Rafiqul-ul-Haque, Senior Advocate (Moudud Ahmed, Senior Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record—For the Respondents.

Civil Petition for Leave to Appeal No. 20 of 2006.
(From the judgment and order dated 9-5-2005 passed by the High Court Division in Writ Petition No. 6305 of 2003).

Judgment

Amirul Kabir Chowdhury J.- Writ respondents Rajdhani Unnayan Kartripakkha and its Authorised Officer as petitioners preferred this petition seeking leave to appeal against the judgment and order dated 9-5-2005 passed by the High Court Division in Writ Petition No.6305 of 2003 making the Rule absolute.

2. The facts, in short, are, that the respondents as writ petitioners moved the High Court Division under Article 102 of the Constitution challenging the legality of Memo No.SEL/eAA/2cP-85/2002/599Oqix dated 17-11-2002 (Annexure A to the writ petition) and for directing the writ respondents to give sanction to the proposed plan of their project stating, inter alia, that the respondent No. 1 is a private limited company incorporated under the Companies Act, 1994 with its objects, inter alia, to construct commercial and residential buildings, engaging in the real estate business and that the company finalised the infrastructure of a project for developing a shopping complex named "Jamuna Future Park" and that in order to make the construction the approval/sanction of Rajdhani Unnayan Kartripakkha (in short RAJUK) is required under the provision of the Building Construction Act, 1952 and that the writ petitioners submitted plan for approval on 12-9-2001 but the writ respondents failed to accord approval. Rather they issued aforesaid memo dated 17-11-2002 directing the writ petitioners to dismantle the structures of the writ petitioners from the land in question. Under such circumstances the writ petitioners felt constrained to file the writ petition.

3. The writ respondents contested the Rule filing affidavit-in-opposition denying the material allegations made in the writ petition contending, inter alia, that notice was served upon the writ petitioner company requesting to submit RAJUK approved plan but to no effect and that a report was published in the Daily Janakantha dated 10-8-2002 regarding unauthorised construction of the Jamuna Future Park, the project of the writ petitioners, and the writ petitioners did not produce any document nor give any explanation for nonfiling of the approved plan and, as such, the writ petitioner No.2 being the Managing Director of the writ petitioner No.1 company was served with another notice dated 12-8-2002 (Annexure IB to the writ petition) to which the writ petitioner No.2 gave a reply on 13-8-2002 from which it could not be considered whether the writ petitioner started construction with any prior approval of RAJUK and, as such, the writ petitioner was asked to stop construction and dismantle the unauthorised construction under the provision of the Building Construction Act, 1952.

4. After hearing the parties, the High Court Division by the impugned judgment and order made the Rule absolute directing the writ respondents to sanction and/or approve the plan on receiving 10 times fee of the amount prescribed.

5. Hence is this petition.

6. In support of the petition, Ms. Sigma Huda, learned Advocate for the petitioners, submits, inter alia, that the High Court Division committed error in the decision in failing to consider that construction without obtaining sanction according to the provision of section 3 of the Building Construction Act, 1952 is unauthorised and, as such, the writ petitioners are bound to dismantle the unauthorised construction and that there being violation of sub-rule (5) of Rule 7 of the Building Construction Rules, 1996 the writ petitioners ought not to have been given the relief sought for by them.

7. Mr. Rafique-ul Haque with Mr. Moudud Ahmed, learned Senior Counsels appearing for the respondents, opposed the petition.

8. We have considered the submissions and perused the materials on record. It is not denied that the writ petitioners filed application on 12-9-2001 before RAJUK for according approval for construction of their project. But, at least till 17-11-2002, the date of issuance of the impugned notice (Annexure-A to the writ petition) their plan was not approved nor it was refused.

9. In this connection, we have perused the provision of section 3B of the Building Construction Act, 1952 wherefrom it is clear that before issuance of the impugned notice dated 17-11-2002 the writ respondents ought to have issued prior show cause notice as required under section 3B(1)(b) of the Act.

10. The High Court Division after hearing the parties and on perusal of the materials produced by them observed:
“It appears from the papers annexed to the writ petition and the affidavit-in-opposition that no such show cause notice as contemplated under section 3B (1) (b) of the Building Construction Act was ever served upon the petitioner asking him to explain within 7 days as to why the proposed construction of the building should not be dismantled or removed nor the petitioner had been given any opportunity of being heard. The respondents however, issued a notice dated 12-8-2002, Annexure-1(b) by which the respondent asked the petitioner to stop the construction work and further directed to remove the construction within 7 days and further warned the petitioner to the effect that since the construction is unauthorised proper action will be taken for removing the unauthorised construction under section (sic) of the Act. To what extent the construction was raised or made till then that was not ascertained. The petitioner replied to the notice dated 12-8-2002 by their letter dated 13-8-2002 [Annexure-1(c) to the affidavit-in-opposition] where it was stated that the petitioner submitted the plan on 12-9-2001 for commercial-cum-residential complex with the papers and also the clearance obtained from the RAJUK and since the approval was withheld at the instance of the Ministry of Works the petitioner was compelled to start the construction work with the information to the Authorised Officer of RAJUK. Admittedly, after submission of the plan, the petitioners have constructed the complex to certain extent till the notice dated 12-8-2002 served by RAJUK upon the petitioners and what action was taken subsequently with regard to the approval to the plan had not been communicated to the petitioner.”

11. The High Court Division after considering the provision of sub-section 5 of section 3B found that the sanction if prayed for could be granted for the construction of the building if the petitioner complies with the provision of sub-section (5)(d)(i) and (iii) thereof of the Act. Considering the offer of the writ petitioners to pay maximum fine i.e. 10 times of the fees for sanction of the plan as per rules, the High Court Division passed the impugned order directing to give sanction/approval to the plan which has remained pending/unattended by RAJUK for a long time but directed payment of 10 times of the fees for the sanction.

12. The High Court Division appears to have considered the facts and circumstances and the provision of law elaborately and thus have given the direction.

13. We have perused the judgment and order. In view of what has been stated it appears to us that the High Court Division committed no error in the decision. Moreso, in the impugned judgment and order of the High Court Division it has also been mentioned that the writ respondents i.e. present petitioners, may verify the plan in the context of the Building Construction Rules, 1996 at the time of giving approval. On the face of it the impugned order on this score also appears to deserve no interference.

We, therefore, do not find any substance in the petition. In view of the discussion made above, the petition stands dismissed.
Ed.

RAJUK Vs. Jonab Ali and others, 2 LNJ (AD) (2013) 33

Case No: Civil Appeal No. 280 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. A. F. Hassan Ariff,Dr. Rafiqur Rahman,,

Citation: 2 LNJ (AD) (2013) 33

Case Year: 2013

Appellant: RAJUK

Respondent: Jonab Ali and others

Subject: Revisional Jurisdiction, Requisition of Property,

Delivery Date: 2012-07-18

APPELLATE DIVISION
(CIVIL)

Md. Muzammel Hossain. CJ
Surendra Kumar Sinha J
Md. Abdul Wahhab Miah.J
Syed Mahmud Hossain. J
Muhammad Imman Ali. J
Md. Shamsul Huda. J

Judgment
18.07.2012

Rajdhani Unnayan Kartipakha (RAJUK)

---Appellant

-Versus-

Jonab Ali being dead his heirs: Eunus Ali and others.

---Respondents

Acquisition and Requisition of Immovable Property Ordinance (II of 1982)
Section 44
The suit cannot be proceeded with as soon as the L. A. case has been initiated for acquisition of the suit land in view of the clear embargo envisaged in Section 44 the Ordinance.
As soon as L. A. Case has been initiated for acquiring the suit land along with other lands, Title Suit No.464 of 1985 should not have proceeded with ads there is a clear bar in respect of such suit under section 44 of Acquisition and Requisition of Immoveable Property Ordinance, 1982. ... (13)

Code of Civil Procedure (V of 1908)
Section 115
Since RAJUK has got direct interest in the suit land it was quite competent to bring it to the notice of the Court that a decree which is a nullity was passed against it. In view of such a case of special nature, delay and procedural defect shall not stand in the way of getting the desired relief and hence the revisional application filed by RAJUK was quite competent.... (17)

For the Appellant : Mr. A. F. Hasan Ariff, Senior Advocate (with Mr. A.F.M. Meshbahuddin, Senior Advocate), instructed by Mr. M. Waliul Islam, Advocate-on-Record.

For Respondent Nos. l(a)-l(e) : Dr. Rafiqur Rahman, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Respondent No 2-7. : Not represented.

Civil Appeal No. 280 of 2010

JUDGMENT

Syed Mahmud Hossain J:

This appeal by the Rajdhani Unnayan Kartipakha (RAJUK) as the appellant following leave is directed against the judgment and order dated 14.10.2009 passed by the High Court Division in Civil Revision No.3994 of 2007 discharging the Rule.

The facts, leading to this appeal, are précised below:
The respondents herein as the plaintiffs flied Title Suit No.228 of 1979 in the First Court of the then Subordinate Judge, Dhaka, renumbered as Title Suit No.464 of 1985 in the Second Court of Subordinate Judge, Dhaka for declaration of title and recover of khas possession Their case, in short, is that the suit land mentioned in the schedule-A to the plaint originally belonged to Niamai Ali Khan in raiyoti jote and his name was daly recorded in C. S. khatian. After that, Niamat Ali died leaving behind a son, namely. Miah Kha and two daughters namely, Rakoat Bibi and Ojir Bibi. Miah Kha sold 70 decimals of land of plot No.77 to plaintiff No. 1 by a registered deed of sale dated 14.10.1958. Miah Kha further sold 13!/2 decimals of land to plaintiff No.l from the said plot No.77 by a registered deed of sale dated 08.12.1956 and in this way, plaintiff No. 1 acquired title to l.l8.50 acres of land in total. Ojir Bibi, the other daughter of Niamat Ali Kha, died leaving behind a son, namely, Kasim Uddin. By amicable partition, Kasim Uddin got 93  decimals of land who transferred 88 decimals of land to his wife Malika Banu by a registered deed dated 27.12.1947. After that, Kasim Uddin and Malika Banu, the husband and the wife respectively, jointly transferred 70 decimals of land of plot No.77 to Belat Ali Mathbor by registered deed dated 22.01.1949 and Belat Ali transferred the same to Malika Banu, wife of Kasim Uddin and their son Mafizuddin by a registered deed dated 03.05.1954. While in possession Malika Banu transferred 88 decimal of land to plaintiff No.l by a registered deed dated 07.10.1958. Thus, the plaintiffs acquired 16 annas title i.e. 2.12 acres of land in C. S. plot No.77. While the plaintiffs were in possession of the suit land, one Abdul Aziz Khan in the name of an industry trespassed into 96 decimals of land by creating some false documents. Consequ-ently, the plaintiffs filed Title Suit No.28 of 1967 for recovery of khas possession. Ultimately, the said suit was decreed and the plaintiff got delivery of possession on 08.07.1967 through executing Court. Since then the plaintiffs had possessed the entire suit land in C. S. plot No.77, S. A. and R.S. khatians have also been prepared in their names subsequently. The defendants, the sons of Miah Kha, having no title and interest trespassed into a portion of the suit plot as described in the schedule-B to the plaint. Hence Title Suit No.464 of 1985 has been filed for declaration of title and recovery of khash possession.

What is important to note there is that the defendants did not contest the suit. After a long lapse of time, the learned Subordinate Judge by the judgment and order dated 25.10.1995 decreed the suit ex parte. Against that ex parte decree, one Abed Khan as the petitioner filed Miscellaneous Case No.40 of 1996. On23.07.2001, the Court fixed the date of final hearing of miscellaneous case but the petitioner did not turn up and none was found upon repeated calls. After that, the learned Subordinate Judge by judgment and order dated 23.07.2001   dismissed Miscellaneous Case No.40 of 1996.

Against the order of dismissal dated 23.07.2001, the appellant herein prefer-red Miscellaneous Appeal No.212 of 2001 before the learned District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Third Court, Dhaka, who by impugned judgment and    order dated 24.05.2004 dismissed the same.

Being aggrieved by and dissatisfied with the judgment and order 24.05.2004,   the appellant herein filed Civil Revision No. 3994 of 2007 before the High Court Division and obtained Rule. The High Court Division by the judgment an order dated   14.10.2009 discharged the Rule without any order as to costs.

Feeling aggrieved by and dissatisfied with judgment and order dated 14.10.2009 passed by the High Court Division, the appellant moved this Division by filing Civil Petition for Leave to Appeal No.2511 of 2009 in which this Division granted leave on 29.07.2010 resulting in the initiation of Civil Appeal No.280 of 2010.

Mr. A. F. M. Hassan Ariff, learned Senior Advocate (with Mr. A. F. M. Meshbahuddin learned Senior Advocate), appearing on behalf of the appellant, submits that the decree passed in Title Suit No.464 of 1985 of the Second Court of Subordinate Judge, Dhaka, is a nullity as L. A. Case No.02 of 1987-88 had been initiated during pendency of the suit for acquisition of the suit land and other land and that the High Court Division without looking into this legal aspect of the case discharged the Rule and as such, the impugned judgment should be set aside. He further submits that as soon as the plaintiffs came to know about initiation of L. A. Case No.2 of 1987-88 they should not have proceeded with the suit and that the decree obtained by them even after initiation of acquisition proceeding is a nullity and as such, the impugned judgment delivered by the High Court Division should be set aside.

Dr.   Rafiqur Rahman,   learned   Senior Advocate, appearing on behalf of respond-ent No. l (a)-l (e), supports the    impugn-ed judgment stating that the appellant did not have any locus standi to file the revisional application as it has not filed any case under Order IX rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in Title Suit No.464 of 1985. He lastly submits that the High Court Division has addressed all the issues raised by the appellant before this Division and as such, the impugned judgment should not be interfered with.

We have considered the impugned judgm-ent, the submissions of the learn-ed Senior Advocates and the documents incorporated in the paper book.

To begin with, it is necessary to go through the submissions of the learned Advocate for the appellant, on which, leave was granted by this Division as under: They never received any summons of the title suit but the High Court Division observed in the judgment contrary to the materials of the case that summons was served upon the RAJUK inasmuch as from order sheets of the title suit shows that RAJUK was made pro-forma defendant No.4 by amendment vide order No.78 dated 17.08.1988 and before such amendment the suit land stood acquired on 16.06.1988 and as such, the amendment and making the RAJUK as pr-forma defendant thereof is a nullity.

As per section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, any suit challenging the acquisition of lands barred by law and since the suit land was acquired on 16.06.1988 the suit stood barred by law at seriously occasioned a failure of justice and the same is liable to be set aside.

The centering round a notice dated 30.04.2007 issued by RAJUK for vacating the land from unauthorized occupation, the respondents filed Writ Petition No.4609 of 2007 which was discharged on 03.02.2009 with clear finding that C.S. Plot No.77 measuring 2.12 acres of land stood totally acquired by L.A. Case No.02 of 1987-88 and the respondents received compensation money for .70 acres of land from the Deputy Commissioner, Dhaka and the rest of the compensation of the portion of 1.42 acres of land was received by Abid Khan and challenging this judgment, the respondents filed Civil Petition for Leave to Appeal No. 1016 of 2009 and upon hearing the parties, this Division dismissed the same on 24.11.2009 and in such circumstances, the High Court Division held that the suit land is not the acquired land in L.A. Case No.02 of 1987-88 but is situated outside the L.A. Case and this has occasioned failure of justice and hence, the same is liable to be set aside.

Admittedly, the plaintiffs filed Title Suit No.228 of 1979 in the First Court of the then Subordinate Judge, Dhaka, renumbered as Title Suit No.464 of 1985 in the Second Court of Subordinate Judge, Dhaka for declaration of title and recovery of khas possession in respect of the land appended in the schedule to the plaint. There is no gainsaying the fact that initially the appellant-RAJUK and the Deputy Commissioner, Dhaka were not made parties lo the suit. On 17.07.1988, the plaintiffs filed an application in the suit for adding the appellant-RAJUK and the Deputy Commissi-oner, Dhaka as defendant Nos.4 and 5 and the application was allowed on the same date.
The relevant portion of the application for addition of party is quoted below :

দেঃ কার্য্য বিধি আইনের আদেশ ১নং রুল-১০ ও ১৫১ ধারা মোতাবেক দরখাস্ত।
দরখাস্ত পক্ষে বাদীগণ।
মাননীয় আদালত সমীপে সবিনয় নিবেদন এই যেঃ-
১। বাদী উপরোক্তা মোকদ্দমা স্বত্ব ঘোষণা ও খাস দখলের জন্য বিবাদীগণের বিরুদ্দে দায়ের করিয়াছে বিবদীগণও উক্ত মোকদ্দমায় জবাব দিযাছে এবং আগামী তারিখে শুনানীর জন্য দিন ধার্য্য আছে।
২। নালিশী সম্পত্তি জিলা ঢাকার মিরপুর থানার অধীন বাইলজুরী মৌজায় অবস্থিত এবং বর্তমানে বৃহত্তর ঢাকা শহর উন্নয়ন কল্পে রাজউক নালিশী সম্পত্তি সহ অন্যান্য সম্পত্তি একায়ার করিবার জন্য সরজমিনে সার্ভে করিতেছে এবং জিলা ঢাকার ডিপুটি কমিশনার এল, এ, এবং এল, আর এর অফিসেও একটি এল, এ, কেইস রম্নজু হইয়াছে যাহার নম্বর-এল, এ, কেইস নং-২/৮৭-৮৮। কাজেই উপরোক্ত মোকদ্দমায় রাজউক ও ডিপুটি কমিশনার ও এল, এ, কে পক্ষভূক্ত করা একান্থ দরকার ন্যায় বিচারের স্বার্থে। কারণ বর্তমানে রাজউক ও ডিপুটি কমিশনার এল, এ, উপরোক্ত মোকদ্দমায় হবপবংংধৎু ঢ়ধৎঃু কাজেই ঢ়ৎড়ঢ়বৎ ধফলঁফরপধঃরড়হ এর জন্য তাহিদিগকে উক্ত মোকদ্দমার বিবাদী শ্রেণীভুক্ত করা একান্ত দরকার নচেৎ বাদীগণ উক্ত মোকদ্দমায় সঠিক ডিক্রি ও ন্যায় বিচার পাইবে না। (বসঢ়যধংরং ংঁঢ়ঢ়ষরবফ)
অতএব, হুজুর দয়া করিয়া ন্যায় বিচারের স্বার্থে আরজি ধসবহফসবহঃ করিয়া উপরোক্তা মোকদ্দমায় রাজউক ও ডিপুটি কমিশনার এল, এ, কে পক্ষভুক্ত করিবার আদেশদানে সুবচার করিতে আজ্ঞা হয়।
যে প্রকার আরজি সংশোধন হইবেঃ-
৪। রাজউক (ডি, আই, টি), ডি, আই, টি, বিল্ডিং, মতিঝিল বাণিজ্যিক এলাকা, ঢাকা।
৫। ডিপুটি কমিশনার, এল, এ, কালেকটরিয়েট বিল্ডিং, থানা-কোতযালী, ঢাকা।

-----বিবাদীগণ।

Having considered the application for addition of party, we find that though RAJUK and the Deputy Commissioner, Dhaka, was made parties to the suit, no relief was sought against them. In the application for addition of party, the plaintiffs stated in no uncertain terms that RAJUK initiated L.A. Case No.02 of 1987-88 for acquiring the suit land along with other lands and that with this end in view, RAJUK had been conducting survey.

Admittedly, gains a notice dated 30.04.2007 issued by RAJUK for vacating the land from unauthorized occupation, the respondents filed Writ Petition No.4609 of 2007 in which Rule Nisi was issued. On 03.02.2009, Rule was discharged with a clear finding that C.S. Plot No.77 measuring 2.12 acres of land stood totally acquired by L.A. Case No.02 of 1987-88 and that the respondents received compensation money for .70 acre of land from the Deputy Commissioner, Dhaka and that the rest of the compensation of the portion measuring 1.42 acres of land was received by Abid Khan. Challenging this judgment, the respondents filed Civil Petition for Leave to Appeal No. 1016 of 2009 and upon hearing the parties; this Division dismissed the same on 24.11.2009. Even then the High Court Division held that the suit land was not the acquired land in L.A. Case No.02 of 1987-88 but is situated outside that L.A. Case. Such a glaring erroneous finding contrary to admitted fact cannot sustain in law.

As soon as L. A. Case has been initiated for acquiring the suit land along with other lands, Title Suit No.464 of 1985 should not have proceeded with ads there is a clear bar in respect of such suit under section 44 of Acquisition and Requisition of Immoveable Property Ordinance, 1982 (in short, the Ordinance). Section 44 of the Ordinance is quoted below:

"44.Save as otherwise expressly provided in this Ordinance, no Court shall entertain any suit or application against any order passed or any action taken under this Ordinance, and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance. Of any power conferred by or under this Ordinance. "

From the section quoted above, it appears that no Court shall entertain any suit or application against any order passed or action taken under the Ordinance in respect of any action taken or to be taken or under this Ordinance.
In view of the clear bar in section 44 of the Ordinance, the decree passed in Title Suit No.464 of 1985 is a nullity.

The High Court Division came to a finding that after the ex prate, decree RAJUK did not take any step for setting it aside before the Court as per provision of law and that RAJUK failed to prefer an application under Order IX Rule 13 of the Code of Civil Procedure against the ex parte decree and therefore, RAJUK had no locus standi to file the instant civil revision by passing the appellate forum.

Admittedly, the suit land along with other lands was acquired in L.A. Case No.02 of 1987-88 and RAJUK is the requiring body thereof. Since RAJUK has got direct interest in the suit land it was quite competent to bring it to the notice of the Court that a decree which is a nullity was passed against it. In such a case of special nature, delay and procedural defect shall not stand in the way of getting the desired relief. Therefore, the revisional application filed by RAJUK before the High Court Division was quite competent to right the wrong.

The findings arrived at and the decisions made by the High Court Division are not based on proper appreciation of laws and facts and as such can not sustain in law.

Accordingly, the appeal is allowed as the decree obtained in Title Suit No.464 of 1985 was a nullity and consequently, the impugned judgment is set aside without any order as to costs.

Ed.

Ram Chandra Das & others Vs. Md. Khalilur Rahman & another

Case No: Civil Appeal No. 2 of 1983.

Judge: Fazle Munim ,

Court: Appellate Division ,,

Advocate: Mr. M.H. Khondkar,B.N. Chowdhury,,

Citation: 37 DLR (AD) (1985) 21

Case Year: 1985

Appellant: Ram Chandra Das & others

Respondent: Md. Khalilur Rahman & another

Subject: Law of Contract,

Delivery Date: 1984-02-05

Ram Chandra Das & others Vs. Md. Khalilur Rahman & another
37 DLR (AD) (1985) 21

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Chowdhry ATM Masud J
Syed Md. Mohsen Ali J

Ram Chandra Das & ors. ...................................Appellants
Vs.
Md. Khalilur Rahman & another........................ Respondents

Judgment
February 5, 1984.

Contract – specific performance of contract

Grant of decree for specific performance is discretionary with the Court. The Court is not bound to grant such relief merely because it is lawful to do so. Specific performance of contract is not to be granted as a matter of course………….(11)

When time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would, therefore, be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed……….(13)

In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved…….(13)

As the plaintiff-respondents have successfully proved their readiness and willingness to pay the balance of the consideration money within the stipulated period of time, there being no controversy regarding the failure of the defendant-appellants to perform their obligations within such period, the suit for specific performance cannot fail ………….(15)

Decree of specific performance of the contract passed by the trial Court, affirmed by the High Court Division was confirmed with modification of granting solatium of Tk. 15000.00 in addition to the balance consideration money in favour of the defendant appellants considering special circumstance of the case………..(17)

Cases Referred to:
Jadu Nath Gupta vs. Chandra Bhusan (1931)36 CWN 28 5; Protab Chandra Koyal vs. Kali Chandra (1951) 55 CWN 557; Maharaj Bahadur Singh vs. Suresh Chandra Roy, 34 CLJ 364; Jogesh Chandra Das vs. Farida Hasan (1983) BLD 225 (AD); Gomathinayagam Pillai vs. Palahiswami. AIR (1967) SC 868.

Lawyers Involved:
M.H Khondker, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record—For the appellants.
B.N. Chowdhury, Advocate instructed by Kazi Ebadul Hague, Advocate-on-Record.

Civil Appeal No. 2 of 1983.
(From the Judgment and Order dated March 25, 1982 passed by the High Court Division, Dhaka in F.A. No. 55 of 1978.)

Judgment

Fazle Munim CJ.— This appeal arises from First Appeal No. 55 of 1978 passed by the High Court Division on 25 March 1982.

2. Plaintiff who is the respondent instituted Title Suit No.3 of 1976 in the 5th court of Subordinate Judge, Dhaka for specific performance of contract to sell the suit lands. Plaintiff's case was that the defendants entered into an agreement with him on November 2, 1970 to sell the suit land being a tank with banks and adjoining agricultural lands at a consideration of Tk. 28,500/-. Defendants accepted Tk. 6,000/- as earnest money. Stipulations between them were that the plaintiff would offer the balance of the consideration money to the defendants within one month upon which they would execute and register .the sale deed. It was further agreed that if the plaintiff failed to do so-the earnest money would be forfeited but if the defendants refused to accept the balance amount and failed to execute and register the sale deed within the aforesaid period the plaintiff should be entitled to specific performance of the contract through Court. On November 25, 1970 the plaintiff offered the balance consideration money but the defendants refused to accept it on the plea of their failure to procure Income tax and gain tax clearance certificates and Nationality certificate but assured the plaintiff that they would complete the transaction after obtaining these certificates. Plaintiff made several offers since then but the defendants deferred the matter. Ultimately defendants refused to sell the land on October 7, 1973 unless the plaintiff agreed to pay 15,000/- in additions to the balance consideration money.

3. Defendant Nos.1-3 contested the suit by filing a joint written statement wherein it was contended that the suit was barred by limitation, that the time was the essence of the contract, that defendants agreed to sell the suit land situated at a distant village from the residence to raise money to purchase agricultural lands and also to invest capital in fish business, that they entered into an agreement with one Pagali Mondal for purchasing 2.94 acres of agricultural land, that as the plaintiff failed to pay the balance consideration the defendants could not purchase the said land and earnest money paid by them was forfeited, that defendants had no obligation to' obtain income tax clearance certificates etc. which was the responsibility of the plaintiff and that the price of land in the locality had increased in the mean time.

4. By its judgment on December 31, 1977 the trial Court decreed the suit holding inter alia that the suit was not barred by limitation, that the plaintiff tendered the balance consideration money to defendants who refused to accept the same and to execute and register the sale deed on the plea that they failed to Obtain the requisite certificates, that the agree to purchase land by defendants from Pagali Mondal was not genuine and that time was not the essence of the contract. Appeal preferred, by the defendants against the judgment and decree of the trial court was dismissed by the High Court Division on 23 March 1982. It was held that in the absence of any contract to the contrary defendants had the responsibility to obtain the required certificates that the plaintiff was ready and willing to pay the balance consideration money, time was not of the essence of the contract as the parties did not intend it to be so and. that specific performance would not cause undue hardships to defendants.

5. Being aggrieved, defendants moved this Court and obtained leave to consider whether the findings of the trial Court as affirmed by the High Court Division that time was not the essence of the contract was justified by the evidence led in the case. Defendants' contentions were that one of the reasons for not accepting their case that time was the essence of the contract was that it was the responsibility of the defendants to procure the certificates etc. and since they failed to show that they have been duty procured by them within the stipulated time, it could not be held that time, was made the essence of the contract. Appellants were permitted to add the following grounds:
"For that in view of plaintiff's own case that "the cause of action for the suit arose at first on 1-12-70 when the stipulated period of the agreement for sale expired" (showing time was the essence of the contract) and thereafter lastly on 7-10-73 when the defendants ultimately refused to sell the schedule land to the plaintiff unless he agrees to pay the enhanced amount of Tk. 15,000/- in addition to the balance consideration money the learned Judges of the High Court Division misdirected themselves in not refusing specific performance of contract in exercising Court's discretion under Section 22 of the Special Relief Act as there has been a change in the status quo of the matters at the time, the suit was filed on 16-11-73 and the plaintiff is guilty of delay and latches.
For that in the facts and circumstances of the case the claim of specific performance of the contract for sale ought to have been dismissed as the same would impose great hardship on the defendants who being illiterate and poor could not foresee the same."

6. Mr. M. H. Khondker, Counsel for the defendant-appellants, referred to the terms of the contract Ext. 1, to establish his contention that the parties intended that time should be of the essence of the contract. In support of the proposition that where time is made the essence of the contract it must be performed within the 'time stipulated in the contract failing which the Court will not grant specific performance of the contract, he cited a few decisions. Before considering the decisions, it would be better to have a look at the conditions embodied in the contract itself.

7. So far as the conditions as to the time limit for the performance of contract are concerned, there cannot be any doubt about the intention of the parties. There is no ambiguity whatsoever in the language employed for indicating their true intention as to time within which the parties were to fulfill their respective obligation under the contract.

8. Mr. Khondker referred to the case of Jadu Nath Gupta Vs. Chandra Bhusan Sur, (1931) 36 CWN 285 in support of the proposition that ''where the plaintiff is guilty of laches, the Court would not grant any relief to him even though time may not be of the essence of the contract". It is seen that the plaintiff did not pay the balance within the specified time though sometime later; he offered a sum of money to the defendant who refused to accept the same. Plaintiff did not do anything further. Facts of the case are distinguishable from the present case before us which rather finds support indirectly from the observations made in the judgment of the aforesaid decision:
''Absence of proof of plaintiff's readiness and earnestness to perform his part of the contract will entitle the Court to exercise its discretion and refuse relief to him."
Further, it held that
''the grant of specific performance of a contract is discretionary, but the discretion is to be exercised according the facts and circumstances of a particular case".

9.The next case cited by the appellants’ counsel is Protab Chandra Koyal vs. Kali charan Acharya, (1951) 55 CWN 557 which does not relate to a contract for sale of land but concerning an option to repurchase contained in an agreement. It was held that "the option must be exercised strictly within the time limited in the contract".

10. The point involved in Maharaj Bahadur Singh Vs. Suresh Chandra Roy, (1921) CLJ 364 relates to delay in filing a suit for specific performance of a contract to grant to he plaintiff putni lease, though actually limitation was saved by filing the suit three days before the time specified under Article 113, Schedule I, of the Limitation Act, the delay caused a material alteration in the value of the property because it led the tenants to hope that the lease would never be given and to agree to pay enhanced rent in order to prevent it from ever being given. Facts here are distinguishable from those in the case before us.

11. Referring to the case of Jogesh Chandra Das Vs. Farida Hasan 1983 BLD 225 (AD) where it was observed that "under section 22 of the Specific Relief Act a decree for specific performance of contract is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. Specific performance of contract is not to be granted as a matter of course".

12. Mr. Khondker urged us to consider these principles for refusing to grant relief to the plaintiff-respondent. Facts of that case show that consideration money for the contract was quite low and it was executed at a time when there was a civil disturbance in the country and members of the minority community were contemplating to migrate from this country. Other facts and circumstances showing the plaintiff's conduct were also considered in refusing specific performance of the contract. This case is, therefore, distinguishable.

13. The question, however, arises that if time was intended to be the essence of the contract, for whose default to honour his obligations under the contract the same could not be performed? When time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would, therefore, be necessary to find whose failure to carry out his obligations Within the time mentioned in the contract the same could not be performed. Judging the conduct of the parties from this view-point it appears that the plaintiff-respondent had established his readiness and willingness to perform his obligation within the time stipulated in the contract. Evidence shows that the plaintiff-respondent offered the balance consideration money to the defendant-appellants within one month as agreed under the contract. Defendant-appellants did not, however, perform their obligations in obtaining the required certificates in time, further, on the pretext of their failure to obtain the certificates they refused to accept the balance consideration money. Not only they failed to honour their commitment to obtain the certificates in time and execute the sale deed on accepting the balance consideration money, the defendant-appellants expressed their intention to execute the same after obtaining the necessary certificates though one month's time had already elapsed. It is further seen that the plaintiff-respondents went on repeating their offer to pay the balance consideration money and demanding the execution of the sale deed until the defendant-appellants finally expressed their refusal to perform their part of the contract. Where in any contract time is intended to be of the essence of the contract, it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved. This proposition finds support from the following decision.

14. As to when time is to be considered the essence of contract, the case of Gomathinayagam Pillai Vs Palaniswami Nadar, AIR 1967 SC 868 was cited by Mr. B.N. Chowdhury, Counsel for the plaintiff-respondent. Facts involved in this case show that A agreed to sell his land to R. Subsequently, A addressed a letter to R stating that the agreement of sale was subject to a specific undertaking that time was of the essence of the agreement and since R had failed to carry out the agreement, it stood cancelled. R subsequently instituted a suit against A for a decree for specific performance of the agreement, alleging that he was at all material times ready and willing to perform his part of the contract and to obtain the sale deed and. A had committed breach of the contract. Trial Judge dismissed the suit holding that under the agreement time was of the essence that even if it be held otherwise R's default in not performing his part of the agreement within reasonable time after the date fixed in the agreement evidenced that R was never ready and willing to perform his part of the contract. On appeal the High Court held that time was not of the essence of the agreement, that there was no delay on part of R to perform his part of the agreement and decreed the suit. The High Court did not consider the effect of trial court's finding that R was not ready and willing to perform his part of the agreement. It was held by the Supreme Court by a majority decision that mere default by R would not have entitled him to decree if he had proved that he was ready and willing to perform his part of the contract.

15. As the plaintiff-respondents have successfully proved their readiness and willingness to pay the balance of the consideration money within the stipulated period of time, there being no controversy regarding the failure of the defendant-appellants to perform their obligations within such period, the suit for specific performance cannot fail.

16. As there has been a time lapse -between the date of execution of the sale -deed and the date of the decree and it appears from evidence that one of the reasons of the defendant-appellants' refusal to execute the kabala unless Tk. 15.000/- is paid over and above the balance consideration money, some consideration may be made for ordering the payment of a reasonable sum of money to the defendant-appellants as solatium. The contention that it would cause hardship to the defendant-appellants if specific performance is ordered after the lapse of so many years, particularly when the prices of land have gone up considerably since the date of contract, cannot be accepted for the simple reason that the Court in such cases is to give effect to the bargain struck off between the parties. The intention of the parties to a contract cannot be nullified by holding to the contrary, because the sanctity of contract would then vanish. All formal transactions like a contract of sale of property are solemnly entered and cannot, therefore, be trifled with. Moreover, the contention that it was a part of the homestead of the defendant-appellants could not be substantiated, as it was found that they resided in a different village in their homestead measuring .48 acres of land. Their purpose to sell the suit land was to do fish business and also to buy more profitable land with the money obtained by sales

17. For the reasons stated above, the appeal is dismissed. The judgment and decree of the High Court Division affirming those of the trial court are affirmed with following modification, that the plaintiff-respondent No. 1 will pay to the defendant-appellants a sum of Tk. 15,000/- as solatium in addition to the balance consideration money.
There will be no order as to costs.
Ed.

Ramani Marak and another Vs. Jamini Marak and others

Case No: Civil Appeal No. 78 of 1980 from Civil Rule 886 (F) of 1977.

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Miah Abdul Gafur,,

Citation: 46 DLR (AD) (1994) 51

Case Year: 1994

Appellant: Ramani Marak and another

Respondent: Jamini Marak and others

Subject: Property Law,

Delivery Date: 1980-11-05

Ramani Marak and another Vs. Jamini Marak and others
46 DLR (AD) (1994) 51

Supreme Court
Appellate Division
(Civil)

Present:
Kemaluddin Hossain CJ
Ruhul Islam J
Badrul Haider Chowdhury J

Ramani Marak and another …………Appellants
Vs.
Jamini Marak and others................Respondents

Judgment
November 5th, 1980.

Code of Civil Procedure (V of 1908)
Order XXXIX rule 2

Temporary Injunction— Question of issuing such injunction in a suit for declaration simpliciter. If the suit is otherwise maintainable and it is found that the defendant without being in possession wants to disturb the plaintiff’s possession, the Court cannot be powerless to grant temporary injunction in an appropriate case. An order granting injunction must be a speaking order.

Lawyers Involved:
Miah Abdul Gafur, Advocate-on-Record - For the Appellants.
Md. Aftab Hossain, Advocate-on-Record - For the Respondents 3‑20.

Civil Appeal No. 78 of 1980 from Civil Rule 886 (F) of 1977.

Judgment

Kemaluddin Hussain CJ.- Leave was granted to consider whether the learned Judges of the High Court were justified in granting temporary injunction during the pendency of the first appeal in the High Court Division, arising from a suit which was only for declaration of title without any prayer for consequential relief.

2. Facts are that Respondents 1, 2 and 20 filed OC Suit No. 336 of 1975 in the Court of the Subordinate Judge, Tangail for declaration of their title in the suit properties, claiming that the property originally belonged to one Ifrimoni Garoani and they were her great grand daughters through her daughter Midong. The suit was contested by the first appellant saying that the suit property was self-acquired properties of Ramjan Garo and it was so recorded in his name in CS Khatian. Ramjan Garo died leaving his wife (defendant No. 1) as the legal heir who has been enjoying the suit properties being in possession for more than 12 years. First appellant as plaint at filed OC Suit No. 66 of 1975 in the same Court for declaration in respect of the self same properties making the plaintiffs of the other suit as the defendants along (sic) with others. Both the suits were tried analogously and dismissed by the same judgment on December 31, 1976. Against the judgment and decree passed in OC Suit No. 335 of 1975 two plaintiffs, namely, Respondents I and 2 filed an appeal in the High Court Division being FAT No. 363 of 1977 and the same is still pending. In the said appeal Respondents 1 and 2 filed an application for temporary injunction restraining the appellant from interfering with their possession in the suit land. Prayer for injunction was opposed, saying that the respondents could not legally make a prayer for temporary injunction in the suit for declaration simpliciter. It was further contended that the respondents' possession in the suit property was not accepted by the learned Subordinate Judge. The learned Judges of the High Court Division, however, accepting the case of the respondents found it a fit case for restraining the appellants and so issued the order of temporary injunction.

3. Leave was granted to consider whether in view of the decision in the case of Kanti Ram Shil Vs. Sumitra Devi 16 DLR 272 and in the case of Mosharraf Hossain Vs. Bangladesh Jute Industries Corporation 29 DLR (SC) 168 the injunction granted by the High Court Division was done on correct principles.

4. So far as the case of Mosharraf Hossain is concerned, it is to be observed, that the matter related to service, and it was observed that where the question of smooth working of public administration or national economy is involved, the rule of balance of convenience is to refuse the prayer for temporary injunction. The relevance of this decision, though of importance, is not attracted to the distinguishing facts of this case.

5. Mr. Miah A Gafur, learned Advocate‑on Record, of course, gives emphasis on the authority of Kanti Ram Shil's case, where it has been held that in a suit for declaration of title to lands simpliciter without any prayer for consequential relief, the plaintiff is not entitled to ask for temporary injunction against the defendants restraining them from interfering with plaintiffs' alleged possession of the suit land. In that suit, it was found that the plaintiffs had not merely failed to make out a prima facie case of title to and possession of the suit land, but on their own averment the prima facie case is in favour of the defendants. On such finding the temporary injunction was refused. The decision on the finding, therefore, was correct. It is to be observed that the principle is generally applicable to case where in a suit for title relating to immovable roperty is filed, and consequential prayer ought to have been made, but has not been made, and an injunction is sought for. Normally this rule is to be observed, but it cannot be taken as an absolute rule, because if the suit is otherwise maintainable, and if it is found that the defendant without being in possession, wants to disturb the possession, the Court cannot be powerless to grant temporary injunction in an appropriate case. The order granting injunction must be a speaking order.

6. The facts have already been set out earlier. If we now turn to the findings of the learned Judges of the High Court Division on the basis of which the injunction has been granted we find that it has been clearly found by them by referring to the evidence of defendant that
"She was not in possession of the suit land but the petitioners were in possession thereof. In the circumstances, we think it is a fit case for restraining the opposite parties from interfering with the petitioners' possession."

7. After making this finding the injunction was granted in the following terms:
"The opposite parties are restrained by an order of temporary injunction from interfering with the petitioners' possession of the suit land excepting the homestead portion thereof till disposal of the appeal."

8. The finding of possession by the High Court Division and the consequential order of injunction made by it are fully consistent with the principle for the grant of temporary injunction, and also reveals the utmost care taken by them in making an order which calls for no interference.
This appeal is, therefore, dismissed with costs.
Ed.

Ramesh Chandra Adhikari Vs. Bulbuli, 3 LNJ (AD) (2014) 49

Case No: Civil Petition For Leave To Appeal No. 431 of 2009

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abul Kalam Mainuddin,,

Citation: 3 LNJ (AD) (2014) 49

Case Year: 2014

Appellant: Ramesh Chandra Adhikari

Respondent: Bulbuli

Subject: Hindu Law,

Delivery Date: 2016-02-04

Ramesh Chandra Adhikari Vs. Bulbuli
3 LNJ (AD) (2014) 49
APPELLATE DIVISION
(CIVIL)

A. B. M. Khairul Haque, C. J.
Md. Muzammel Hossain, J.
S. K. Sinha, J.

Judgment on
06.01.2011

Ramesh Chandra Adhikari
. . . Petitioner
-Versus-
Bulbuli
. . . Respondent

Hindu Law—How marriage in the Hindu Shastriya Law can be proved—In the instant case from the material evidence on record we find that there was evidence of compromise by the plaintiff and the defendant in presence of P.W. 4; that voter list Exhibit-1 shows that the defendant is the husband of the plaintiff and there was also evidence of joint photograph as husband and wife. All these evidences support the case of the plaintiff-respondent that there was a valid marriage between the petitioner and the respondent. . . . (11)

Hindu Law—Marriage in the Brahma Form—Marriage in Asura Form—There are two ceremonies essential to the validity of a marriage whether the marriage be in the Brahma form or the Asura form. The ceremonies are (1) invocation before the sacred fire and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire. In the instant case marriage was performed in fact and therefore we can safely presume that marriage is valid in law and all the necessary ceremonies have been performed. There is no evidence to the contrary to show that no marriage ceremony was solemnized according to Hindu Shastra. In the instant case the respondent proved that the ceremonies prescribed by the Shastra were performed. The defendant-petitioner as D.W.1 did not depose that no “Saptapadi” was performed before the sacred fire. Therefore, the petitioner having not raised the plea of invalidity of marriage because of non-perfor-mance of an essential rite any plea to the effect that the marriage is bad in law for want of any essential ceremony such as Saptapadi is not tenable in law. . . . (20 and 21)

Marriage under Hindu Law is treated as sacrament not a contract-But it requires some change in view of the very many problems being faced by the Hindu Community—Marriage under the traditional Hindu Law is a holy union for the performance of religious duties. It is a sacrament for the purification of the body from inherited taint. It is not a contract. Of course the marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations—In view of the modern social dimensions the Hindu Community in this Country in respect of marriage, divorce and inheritance faces multifarious problems. In many cases the alleged husband does not recognize marriage or deny the existence of marriage with the female partner and the female partner also faces difficulty in respect of her right to inheritance and the issues of the marriage are also sometime disowned by the male partner to be the legitimate offspring of their wed-lock and as such, the children sometimes find difficulty to get recognition and their right of inheritance. In consequence of these varying problems being faced by the Hindu Community in this Country where the society has advanced and the women are also very much conscious about their rights and status in respect of marriage, divorce, inheritance, we believe time has come to think about the social needs and the demand of different Hindu Women right activists and other social and non-government organizations for codification of the Hindu Law of marriage and succession. . . . (23)

Chellammal and others Vs. Ranganatham Pillai and others, (1911) ILR 34 Mad 277; Mrs. Valsamma Paul Vs. Cochin University and others, AIR 1996 SC 1011; Swarajya Lakshmi Vs. Dr. G. G. Padma Rao, AIR 1974 SC 165; V. Tulasamma and others Vs. V. Sesha Reddi (Dead) By L. Rs, AIR 1977 SC 1944; A. L. V. R. S. T. Veerappa Chettiar Vs. S. Michael Etc, AIR 1963 SC 933; Utpal Kanti Das Vs. Monju Rani Das, 17 BLD (AD) 289; Bhaurao Shankar Lokhande and another Vs. State of Maharashtra and another, AIR 1965 SC 1564 ref.

For the Petitioner: Mr. Abul Kalam Mainuddin, Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent: None Represented

Civil Petition For Leave To Appeal No. 431 of 2009
(From the judgment and order dated 29.10.2008 passed by the High Court Division in Civil Revision No. 2325 of 2005)

JUDGMENT

Md. Muzammel Hossain, J.

This petition for leave to appeal under Article 103 of the Constitution of Peoples’ Republic of Bangladesh is directed against the judgment and decree dated 29.10.2008 passed by a Single Bench of the High Court Division in Civil Revision No. 2325 of 2005 discharging the Rule and affirming the judgment and decree dated 02.10.2004 passed by the learned District Judge, Narail in Family Appeal No. 03 of 2004 dismissing the appeal and affirming those dated 20.01.2004 passed by the learned Senior Assistant Judge and Family Court, Narail in Family Suit No. 87 of 2000 decreeing the suit.

The present respondent as plaintiff instituted Family Case No.87 of 2000 in the Court of Senior Assistant Judge and Family Court, Narail for maintenance against the defendant petitioner stating, interalia, that the plaintiff and the defendant being neighbours knew each other since their childhood; that during their study in Rajshahi University they came in close contact and fell in love with each other and subsequently, according to Hindu Shastra the defendant-petitioner married the plaintiff-respondent in the Rajshahi Kali Mondir in the month of December,1989 in presence of witnesses; that marriage ceremony was solemnized by the Puruhit and Shayamol, brother of the petitioner offered him and Maharaj Biswas (P.W.3), uncle of the respondent offered her to each other in the marriage. Thereafter, they lived together as husband and wife. After completion of their education from Rajshahi University both of them joined as lecturers in two different colleges. From the very beginning the petitioner demanded dowry and started to torture the plaintiff-respondent both physically and mentally as a result of which the plaintiff lodged complaint before the superintendent of police who on 15.03.1998 compromised the matter by a written agreement and again the defendant demanded dowry on 21.01.2000 and drove away the plaintiff from the house and refused to give maintenance on 20.10.2002 and hence the suit.

The present petitioner as defendant contested the suit by filing written statement, stating, interalia that he had not married the plaintiff-respondent and he has no relationship with her; that the plaintiff-respondent being influenced by superintendent of police forcibly entered into the house of the defendant-petitioner and managed to have a signature from him on blank stamp paper and thereafter filed the Suit.

The learned Assistant Judge and Family Court, Narail by the judgment and decree dated 20.01.2004 decreed the suit.

The defendant being aggrieved by the aforesaid judgment and decree dated 20.01.2004 preferred an appeal being Family Appeal No.03 of 2004 in the Court of District Judge, Narail who by the judgment and decree dated 02.10.2004 dismissed the appeal.

Being aggrieved by the aforesaid judgment and decree dated 02.10.2004 passed by the learned District Judge, Narail the defendant-petitioner moved the High Court Division in Civil Revision No.2325 of 2005 and a Single Bench of the High Court Division by the impugned judgment and decree dated 29.10.2008 discharged the Rule affirming those passed by the learned District Judge.

Thereafter the defendant-petitioner being aggrieved by the impugned judgment and decree passed by a Single Bench of the High Court Division moved the instant civil petition for leave to appeal before this Division.

Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the defendant-petitioner submits that the High Court Division failed to notice that there is no single evidence showing valid marriage under the Hindu Law by invocation before sacred fire and saptapadi performed by the couple and as such the impugned judgment and decree is liable to be set aside. He then submits that the plaintiff-respondent did not adduce any evidence of wedding ceremony but the courts below failed to consider this aspect of the matter and as such the impugned judgment and decree is liable to be set aside. Mr. Mainuddin finally submits that since the defendant-petitioner denied the marriage the onus lies upon the plaintiff-respondent to prove marriage between them but the plaintiff-respondent failed to prove their marriage and as such the impugned judgment and decree passed by the High Court Division is liable to be set aside.

We have heard the learned Advocate appearing for the petitioner, perused the impugned judgment and decree of the High Court Division and other materials on record.

The pertinent question in this case is whether the defendant-petitioner had married the plaintiff-respondent according to Hindu Law. It appears that the plaintiff-respondent as P.W.1 deposed in support of her case stating that she having fallen in love with the defendant-petitioner married him according to the ceremonies prescribed by the Hindu “Shastras” in presence of the brother of the petitioner; that she cannot say whether the ‘Brahmin’ who solemanized the ceremonies of the marriage is alive or not; that she stated the photograph which was taken during marriage; that she wore “Shakha and Sindur”; that she lived with him in a house as husband and wife and she left her husband’s house because of his torture and demand of dowry; that she lodged complaint to the superintendent of police; that there was a conciliation by local superintendent of police when the petitioner gave an undertaking to take her in his house where she stayed with him. The plaintiff-respondent also proved that marriage took place in the Rajshahi Kali Mondir in presence of the witnesses and brother of defendant-petitioner. The plaintiff-respondent’s neighbour Nirmal Kumar Gupta as P.W.2 corroborated the evidence of the plaintiff P.W.1 stating that the defendant married the plaintiff in Rajshahi in his presence; that the puruhit solemnized the marriage in Kalibari Rajshahi according to Hindu Shastra and the defendant-petitioner’s brother offered him; that a cameraman of Rajshahi took photograph of the marriage ceremony. The plaintiff-respondent’s uncle Maharaj Biswas as P.W.3 also corroborated the evidence of P.W.l and P.W.2 stating that he offered her niece in marriage to the defendant-petitioner and the Puruhit solemnized the marriage by reciting “mantra” in the Kalibari Rajshahi in his presence and Nirmal went to Rajshahi with him. P.W.1 to P.W.3 by their evidence proved that after the marriage both the plaintiff and the defendant lived together in the same house in Rajshahi as husband and wife. P.W.4-Tarafdar Rezaul Islam, a resident of the locality and common friend of both of them deposed that he has no enmity with the defendant-petitioner and P.W.4 also corroborated the plaintiff-respondent’s statement in respect of compromise agreement in the Office of the Superintendent of Police where the defendant and other witnesses were present. The defendant did not deny the fact of this compromise in the presence of P.W.4. Exhibit-l-voter-list shows that the defendant has been shown as the husband of the plaintiff and they have also joint photograph as husband and wife marked as Exhibit-3. Both the trial court and the court of appeal below as the final court of facts on consideration of both oral and documentary evidence on record found that they united in marriage and there is a relationship of husband and wife between them.

According to Mulla there is an extreme strong presumption of the validity of marriage and the legitimacy of children born out of the lawful marriage if from the time of the alleged marriage both the parties are recognized by all persons concerned as man and wife and also described in important documents and on important occasions. It has been held in the case of Chellammal and others –Vs- Ranganatham Pillai and others, (1911) ILR 34 Mad 277 that the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children arises strong presumption that she is the wife of that man. But the same presumption can be rebutted showing that no marriage could have taken place. In the instant case from the material evidence on record we find that there was evidence of compromise by the plaintiff and the defendant in presence of P.W.4; that voter list Exhibit-1 shows that the defendant is the husband of the plaintiff and there was also evidence of joint photograph as husband and wife. All these evidences support the case of the plaintiff-respondent that there was a valid marriage between the petitioner and the respondent. However, there is also an argument in the modern society that recognition by family of both the parties or community is not a pre-condition for a valid marriage. While considering this aspect of marriage Supreme Court of India in the case of Mrs. Valsamma Paul vs Cochin University and Others, AIR 1996 SC 1011, observed as under:

“Though it was consistently held that recognition is a circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light of the constitutional philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India, on marriage of a man and a woman, they become members of the family and entitled to the social status as married couple, recognition per se is not a pre-condition but entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status.”

The concept of marriage in Hindu Law has been propounded in several cases decided by the Indian Supreme Court. In the case of Swarajya Lakshmi vs Dr. G.G. Padma Rao, AIR 1974 SC 165, it was observed, “Marriage according to Hindu Law, is a sacrament and a holy union for the performance of religious duties.”

In the same way in the case of V. Tulasamma & Others vs V. Sesha Reddi (Dead) By L. Rs, AIR 1977 SC 1944, it was observed, “Under the Shastric Hindu Law, a marriage, unlike a marriage under the Mohammadan Law which is purely contractual in nature, is a sacrament – a religious seremony which results in a sacred and a holy union of man and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth as a partner of her husband becoming a part and parcel of the body of the husband.”

The Hindu Shasrya Law enjoins all men to marry for the purpose of procreating a son necessary for the continuation of line of paternal ancestors and for the spiritual benefit of their soul. It is known to all that the ancient Hindu law recognized eight forms of marriage, of which four were approved forms and the others were unapproved forms. The approved forms were Brahma, Daiva, Araha and Prajapatya and the unapproved forms were Asura, Gandharva, Rakshasa and Paisacha. Presently two forms of marriage are recognized, namely, (i) the Brahma form, which is one of the approved forms; and (ii) the Asura form, which is one of the unapproved forms. In the case of A.L.V.R.S.T. Veerappa Chettiar vs S. Michael Etc, AIR 1963 SC 933, the essence of the Asura marriage was discussed by the Supreme Court of India in following terms:

“The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride’s father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride’s father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A’sura marriage.”

The distinction between the approved and unapproved forms of marriage is that wife married in a approved form becomes ‘Patni’ but in an disapproved form she does not become ‘Patni’. In this modern days the distinction between ‘Brahma’ or ‘Asura’ form of marriage is immaterial. In above mentioned case (AIR 1963 SC 933) it was held that whenever a question arises whether a marriage is a Brahma or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the contrary to prove that the marriage was either an Asura or any other form.

According to the Principles of Hindu Law by Mulla 21^st Edition (2010) when a question arises as to whether a marriage was in the ‘Brahma’ form or the ‘Asura’ form, the court would presume, even where the parties are Shudras; that it is in the ‘Brahma’ form i.e. no consideration for the marriage passed from the bridegroom to the father or other guardian of the bride. But this presumption may be rebutted by showing that the marriage was in the ‘Asura’ form. The Apex Courts of the Sub-continent including this Court in a number of cases held that where a question arises as to whether a marriage was in approved or in unapproved form, the presumption is that it was in approved form unless the contrary is proved. If the celebration of marriage in fact is established then there shall be a presumption of there being a marriage in law and the observance of the essential ceremonies. Generally there are two ceremonies essential to the validity of a marriage either in the Brahma form or in the Asura form, namely, (i) invocation before the sacred fire, and (ii) saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.

The marriage becomes completed when the seventh step is taken. Before that step it is imperfect and revocable. (Chunilal –Vs- Surajram (1909) 33 Bom. 433). In the case of Kally Churn –Vs- Dukhee (1880) ILR 5 Cal.692 it has been held that apart from the complete performance of the two ceremonies a marriage may be completed when custom of the caste allows otherwise. The essential requisite for recognition of such a custom is that it must be sufficiently ancient and definite and the members of the caste or sub-caste or family must recognise it as obligatory. But those customs cannot be altered by the will and pleasure of the caste or sub-caste to whom the parties belong. When the caste has been able to establish its usage regulating the form and the requisites of a valid marriage, such a usage being transcendent law is obligatory and is binding upon the parties. The Courts are bound to recognise the usage giving effect to the same. In the case of Utpal Kanti Das –Vs- Monju Rani Das reported in 17 BLD (AD) 289, this Division enumerated the usual ceremonies of Hindu Marriage which are as follows:

(a)     On the forenoon of the day fixed for marriage “Nandimukha” or “Vriddhi Sraddha” is performed. The bride’s father or other male relation invokes the departed souls of the ancestors and make offerings to them to get their blessings.
(b)     In the evening when the bridegroom comes in a procession to the bride’s place the bridal party is received with great hospitality and the bridegroom is given a ceremonious reception by the near relations of the bride, making over to him new wearing apparels.
(c)     The bridegroom dressed up in new clothings is then circled by the bride seven times, at the end of which the bride and the bridegroom exchange garlands of flowers.
(d)     Then follows ‘sampradana’ or gift of the bride to the bridegroom.”

This Division further observed as under:

“17. It is obvious that nuptial rites in Hindu Shastra are so complicated that an exact observance of their details is not easy and is beyond the comprehension of the ordinary participants or the attendants of the ceremony. But once the celebration of a marriage in fact is established there shall be a presumption of there being a marriage in law and observance of the essential ceremonies.” [17 BLD (AD) 289 at page 292]

In the same judgment [17 BLD (AD) 289) at paragraph 8 his Lordship referred to the submission of the learned counsel for the appellant wherein it was argued that on paragraph 437 of Mulla’s “Principles of Hindu Law” (eleventh edition) and also on “A Treatise of Hindu Law” by Golapchandra Sarkar Sastri (sixth edition), chapter III on marriage, two essential ceremonies to the validity of a Hindu marriage have been categorically enumerated. They are, namely, (1) invocation before the sacred fire, and (2) steps by the bridegroom and the bride jointly before the sacred fire which is known as saptapadi.

Supreme Court of India in the case of Bhaurao Shankar Lokhande & Anr vs State of Maharashtra & Anr, AIR 1965 SC 1564 while determining what the essential ceremonies for a valid marriage are, cited Mullas Hindu Law, 12^th Edition as authority where in it has been stated as under:

“(1) There are two ceremonies essential to the validity of a marriage, whether the marriage be in the Brahma form or the Asura form, namely-

invocation before the sacred fire, and
saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.

(2) A marriage may be completed by the performance of ceremonies other than those referred to in subsection (1), where it is allowed by the custom of the caste to which the parties belong.”

From the above discussion it is abundantly clear that there are two ceremonies essential to the validity of a marriage whether the marriage be in the Brahma form or the Asura form. The ceremonies are (1) invocation before the sacred fire and (2) saptapadi, that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire.

On meticulous scrutiny of the evidence of the witnesses and other materials on record it has been proved that in the instant case marriage was performed in fact and therefore we can safely presume that marriage is valid in law and all the necessary ceremonies have been performed. There is no evidence to the contrary to show that no marriage ceremony was solemnized according to Hindu Shastra. In the instant case the respondent proved that the ceremonies prescribed by the Shastra were performed. The defendant-petitioner as D.W.1 did not depose that no “Saptapadi” was performed before the sacred fire. Therefore, the petitioner having not raised the plea of invalidity of marriage because of non-performance of an essential rite any plea to the effect that the marriage is bad in law for want of any essential ceremony such as Saptapadi is not tenable in law.

It is well established that the marriage between man and woman is inseparable under Hindu Law. In Shastriya Hindu Law marriage is treated as sacrament not a contract. It appears that the trial court having considered the material evidence on record rightly found that the marriage between the plaintiff-respondent and the defendant-petitioner was duly completed by the performance of the essential ceremonies which have made the marriage valid in law; that they lived together as husband and wife till she was driven out from the house of her husband and the court of appeal below as the final court of facts made concurrent findings of facts and rightly affirmed the judgment and decree passed by the trial Court and the High Court Division being the revisional Court having considered the evidence of the witnesses and findings of the courts below found that there are concurrent findings of facts by both the trial court and the court of appeal below and as such there is no illegality in the impugned judgment and decree passed by the High Court Division.

Marriage under the traditional Hindu Law is a holy union for the performance of religious duties. It is a sacrament for the purification of the body from inherited taint. It is not a contract. Of course the marriage is necessarily the basis of social organization and the foundation of important legal rights and obligations. In view of the modern social dimensions the Hindu Community in this Country in respect of marriage, divorce and inheritance faces multifarious problems. In many cases the alleged husband does not recognize marriage or deny the existence of marriage with the female partner and the female partner also faces difficulty in respect of her right to inheritance and the issues of the marriage are also sometime disowned by the male partner to be the legitimate offspring of their wed-lock and as such, the children sometimes find difficulty to get recognition and their right of inheritance. In consequence of these varying problems being faced by the Hindu Community in this Country where the society has advanced and the women are also very much conscious about their rights and status in respect of marriage, divorce, inheritance, we believe time has come to think about the social needs and the demand of different Hindu Women right activists and other social and non-government organizations for codification of the Hindu Law of marriage and succession. We are not unmindful about the other fractions of the society, who are not in favour of any codification of the Hindu Law in this Country. We are very much conscious about the extreme sensitive issue involved in this particular matter. But our view is that far reaching and fundam-ental changes could be achieved and we   shall be able to have fair and equitable solution to some of the most difficult questions relating to the law of marriage and succession in consequent thereof. It is our earnest desire and belief that an uniform and comprehensive system governing all Hindus containing a series of coherent provisions carefully considered after having gone through by eminent pundits and researc-hers and law commission a codification of Hindu Law of marriage and succession should be enacted. We have seen that our closest neighbour India has enacted Hindu Marriage Act, 1955 which embodied all the necessary provisions of Hindu Law and thereby promu-lgated all rules of the law of marriage or custom or usage having the force of law in respect of all these matters which are properly dealt with in the Act of 1955. The Hindu Marriage Act, 1955 supersedes any other law contained in any central or state legislation in force immediately before the enactment of the Act. We are of the view that enactment of codified Hindu Law is not only a pious desire of a section of the Hindu rights activists or some of the NGOs of this country but also majority people of the country. In our deep anxiety we have noticed that time has come for the legislators to think about the codification of the Hindu Law of Marriage and Succession in Bangladesh. Sometimes, Female Partners and the children are being deprived of their rights.

To our utter dismay some-times we find that the male partner disowned the very existence of the marriage including the children born out of the wed-lock. In the instant case we have also found that both the plaintiff-respondent and the defendant-petitioner having fallen in love with each other during their university days ultimately united in marriage at Rajshahi Kali Mandir in presence of witnesses and relations of both the parties. The High Court Division rightly found that the Trial Court and the Court of appeal below made concurrent findings of facts that there was a valid marriage in law between the parties. But to our utter surprise the defendant-petitioner, the husband of the plaintiff-respondent denied the very existence and validity of the marriage between them which is very unfortunate. Had there been proper codification of Hindu Law of marriage and succession with a provision for registration of marriage definitely the male partner could not have denied the solemnization of marriage ceremony between the parties. However, time has come for the legislature to think about this burning issue to find out correct solution to the problem by proper enactment or codification of Hindu Law of marriage and succession. If the codification of the Hindu Law is made, it is our considered view that most of the matrimonial problems now being faced by both the parties can be resolved or minimized with least trouble.

Since there is no misreading or non-consideration of any material evidence on record, the High Court Division rightly passed the impugned judgment and decree in discharging the Rule and affirming the judgment and degree passed by the learned District Judge, Narail. In view of the above findings and observations we do not find any merit in the leave petition.

Accordingly, the leave petition is dismissed with cost of Tk. 5,000/- (five thousand).

Ed.

Rana Surong Vs. Government of Bangladesh and others, (Hasan Foez Siddique, J.)

Case No: CIVIL APPEAL NO.458 OF 2017

Judge: Hasan Foez Siddique, J Zinat Ara, J And Md. Nuruzzaman, J

Court: Appellate Division ,

Advocate: Mr. A.M. Aminuddin, Senior Advocate instructed by Mr. Md. Helal Amin, Advocate-on-Record,

Citation: 2020(1) LNJ (AD)

Case Year: 2019

Appellant: Rana Surong

Respondent: Government of Bangladesh and others

Subject: Constitutions of Bangladesh, 1972

Delivery Date: 2020-07-13

The

Lawyers & Jurists

Volume-9

2020(1)

Report of the Decisions of the Appellate Division of the Supreme Court of Bangladesh.

APPELLATE DIVISION

(CIVIL)

Hasan Foez Siddique, J

Zinat Ara, J

And

Md. Nuruzzaman, J

Judgment on

05.02.2019

}

Rana Surong

. . . Appellants

-Versus-

Government of Bangladesh and others

...Respondent

Constitutions of Bangladesh, 1972

Article 18A

The State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, biodiversity, wetlands, forests and wild life for the present and future citizens. The Court is bound to bear in mind article 18A which enjoins that the State shall endeavour to protect and improve the environment. It is our constitutional duty to safeguard the forests and wildlife of the country. The Constitution proclaims it to be fundamental duty of every citizen of Bangladesh to protect and improve the natural environment including forests. Depletion of forests would lead to ecological imbalance. The culmination of a well defined divine scheme. Since earth is divinely gifted abode for man and man is its the divinely appointed custodian, it is his divinely assigned duty to protect, guard and nurture the planet which is his and his fellow creatures’ sole habital. Just like men, nature is the creation of Allah. Nobody has the right to exploit the resources of nature at his will and pleasure never minding the consequences of their action. The preservation of ecology and environment, based on the principle of sustainable development to reconcile the conflicting interest of development with the preservation of healthy environment has been recognized as a facet of right of life. The principle adopted is that ecology and environment are not objects of ownership but are nature’s gift intended to be preserved in trust for future generation. 12 to 20

Constitutions of Bangladesh, 1972

Article 102

Submission of the learned Advocates of respondent regarding locus-standi of the appellant to file writ petition it is to be mentioned that in order to have locus-standi to file a writ petition, the petitioner should be an ‘aggrieved person’. The expression ‘aggrieved person’ has not been defined anywhere. The term, however, denotes an elastic, and to some extent, and elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive formula. Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary of otherwise or cause him some prejudice in one form or other. In this case the appellant has a genuine grievance because the order passed may prejudicially affects his interests as well as the interest of his community. 17

Constitutions of Bangladesh, 1972

Article 102

For the purpose of sustainable development as well as to protect the environment, Writ Respondent No.7 may be permitted to cut down the trees for which permission has been given to it by the concerned authorities subject to certain terms and conditions as mentioned hereinafter:

(1) Immature trees cannot be cut down.

(2) Before cutting down each trees, two saplings are to be planted in suitable places of Jhemai Punjee area.

(3) After nourishing newly planted saplings for at least three years, the leave respondent No.7 would be entitled to chop down old and matured trees only from Jhemai Punjee under the supervision of the Local Officials of the Department of Environment and the Department of Forest.

With the observation made above, the appeal is disposed of. 18 and 19

For the Appellants: Mr. A.M. Aminuddin, Senior Advocate instructed by Mr. Md. Helal Amin, Advocate-on-Record..

For the Respondent No.1: Mr. Murad Reza, Additional Attorney General(with Mr. Sheik Saifuzzaman, Deputy Attorney General) instructed by Mr. Haridas Paul, Advocate-on-Record.

For the Respondent No.7: Mr. Asaduzzaman, Advocate instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record.

For the Respondent No.5: Mr. Nihat Kabir, Advocate instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record.

For the Respondent No.2-4 & 6: Not represented.

JUDGMENT

Hasan Foez Siddique, J.: This appeal is directed against the judgment and order dated 30.03.2017 passed by the High Court Division in Writ Petition No.2001 of 2015 discharging the Rule.

2. The relevant facts, for the disposal of this appeal, are that the appellant filed aforesaid writ petition in the High Court Division challenging the order communicated under Memo No.22.01.0000.672.21.030.14/6156 dated 22.12.2014 issued by the writ respondent No.3 according permission to the writ respondent No.7 for chopping down trees from Jhemai Punjee of Jhemai Tea Estate, Kulaura, Moulvibazar.

3. In the writ petition, it was, inter alia, stated that the writ petitioner is the Headman (Minister) of Jhemai Punjee. Their ancestors and other members of the tribe had/have been living in Jhemai Punjee area from more than hundred years peacefully. The Deputy Director (Planning), Bangladesh Tea Board, issued a letter to the Assistant Director(in charge), Jhemai Tea Estate on 05.08.2010 giving permission for chopping down 2096 standing trees in Jhemai Tea Estate and, thereafter, the Assistant Director (in charge), Jhemai Tea Estate issued a letter on 16.08.2010 to the writ respondent No.2 seeking permission for chopping those trees down. Assistant Commissioner (Land), Kulaura submitted a report on 14.12.2010 to writ respondent No.2 stating that there would be no harm in chopping those trees down from the said Tea Estate. The Deputy Director, Directorate of Environment, Sylhet Division, by a letter dated 03.01.2011, issued a no objection certificate regarding the decision of chopping those trees down. The Additional Deputy Commissioner (Revenue), Moulavibazar, by a letter dated 09.01.2011, forwarded the relevant papers to the Divisional Forest Officer, Sylhet requesting him to consider the application for chopping those trees down as per the lease agreement. The writ respondent No.3, by an order dated 12.01.2011, accorded permission to writ respondent No.5 to chop down the trees from Jhemai Tea Estate. Lastly, the writ respondent No.3, by an order dated 22.12.2014, accorded permission to the writ respondent No.5 for chopping down the trees from Jhemai Punjee/Jhemai Tea Estate without considering the ecological and environmental situation of the area. Thus, the writ petitioner, filing the instant writ petition, obtained Rule.

4. The writ respondent No.7 Jhemai Tea Estate contested the Rule by filing an affidavit-inopposition contending that the original owner of the property, in question, was Zaminder of Prittim Pasha who transferred the said property to Nawab Ali Hyder Khan. Thereafter, Nawab Ali Asgar Khan leased out the Jhemai Tea Estate to Fazlul Karim by registered lease deed dated 28.03.1929. In S.A. operation, the same was recorded in the name of Fazlul Karim. Ahmadul Kabir, in order to purchase the same in his name and in the name of writ respondent No.7 from said Fazlul Karim, entered into an agreement with Fazlul Karim on 23.05.1968. After demise of Fazlul Karim, Ahmadul Kabir and the writ respondent No.7 requested his heirs to execute and register sale deed but they did not pay any heed. Thus, Ahmadul Kabir and writ respondent No.7 filed Title Suit No.5 of 1977 in the Court of the then Additional Subordinate Judge, Sylhet for specific performance of contract and got decree on 30.11.1977. Pursuant to the said decree, the heirs of Fazlul Karim executed and registered sale deed on 26.04.1979 in favour of the writ respondent No.7. The writ respondent No.7 Jhemai Tea Estate (Kedarpur Tea Company Limited) mutated its name and paid rent. As per provision of P.O.No.98 of 1972 Jhemai Tea Estate was acquired by the Government and the Government executed and registered lease deed dated 09.09.1993 leasing out 661.08 acres of land to writ respondent No.7 giving retrospective effect for 20 years, that is, from 15.08.1972 to 14.08.1992. Subsequently, the same was renewed on 19.03.2000 for a period from 15.08.1992 to 14.08.2012 by another registered lease deed. Lastly, the lease was again extended by executing another lease deed on 04.10.2012 for a further period from 15.08.2012 to 14.08.2052. The trees, in question, are part of Jhemai Tea Estate and those are either pre-existing and/or planted by the writ respondent No.7 who have been maintaining those trees. Now chopping down those 2096 trees are required for expansion of the Tea Estate as per terms of the lease agreement and so, this writ respondent approached the authority concerned for according permission for chopping down the trees as per law. Thus, the Rule should be discharged.

5. The High Court Division, by the impugned judgment and order, discharged the Rule. Thus, the writ petitioner has preferred this appeal upon getting leave to appeal.

6. Mr. A.M. Aminuddin, learned Senior Counsel appearing for the appellant, submits that the tribal people earn their livelihood by growing betel leaf using the trees, in question, from their ancestors time and so, the High Court Division erred in law in discharging the rule. He further submits that the appellant and other tribal people and their predecessors had /have been leaving in the said area for more than hundred years upon getting settlement from the original owners. The trees, in question, mostly were grown naturally and the rest of them were planted by their predecessors to maintain the ecological and environmental balance of the locality and the Directorate of environment, without taking notice of the environmental aspects of the area, has accorded permission to chop down the trees from the said Jhemai Tea Estate, the High Court Division erred in law in discharging the Rule.

7. Mr. Murad Reza, Additional Attorney General appearing for the respondent No.1 and Mr. Asaduzzaman, learned Advocate for respondent No.7, submit that it is apparent on the face of the impugned order itself that it has been issued by the writ respondent No.3 upon keeping the environment protection issue in primacy as such the High Court Division rightly upheld the impugned order. They further submit that the appellant has relied upon and came to the Court to enforce Article 18 of the Constitution, which is one of the basic principles of state policy and so, is not enforceable under article 102 of the Constitution and, as such, the appeal is liable to be dismissed. They further submit that a civil suit has been filed by the appellant and others, being Title Suit No.36 of 2011 in the First Court of Joint District Judge, Moulvibazar and the same is still pending for determination of the title of the appellant and others, therefore, filing of the writ petition upon suppressing the said facts in ne hand is a commission of fraud upon the Court and on the other hand due to availing the said alternative remedy, the appeal is liable to be dismissed. They further submit that the appellant has obtained Rule in the writ petition for establishing the right of the tribal people being their headman, which does not qualify him as an aggrieved person under article 102 of the Constitution and he cannot represent the said community and that he has not claimed that he has filed this writ petition as a public interest litigation on the ground of his heart bleeding or for an indefinite number of people or for the common cause or common injury and as such the appeal is liable to be dismissed.

8. It appears from Annexure-B to the writ petition that Jhemai Tea Estate Authority approached the Bangladesh Tea Board on 19.05.2010 seeking permission for chopping down 2096 trees and, on 05.01.2010, Bangladesh Tea Board, considering the prayer of Jhemai Tea Estate, opined that trees may be chopped down with certain terms and conditions and same may be permitted in respect of the trees standing in the land of plot Nos.3,4,6,7,8,9,10,11,12,21, 22, 402, 403, 404 and 406 of Khatian Nos.2 and 3. On 16.08.2010, Jhemai Tea Estate Authority filed an application addressing the Deputy Commissioner, Moulvibazar for according permission for chopping down 2096 trees from the land measuring an area of 40 hectors of plot No.406 for extension of the Tea Estate. From Annexure-D, it appears that the Assistant Commissioner (Land), Kulaura, Moulvibazar submitted a report to the Deputy Commissioner, Moulvibazar wherein it was, inter alia, stated, Ò6| evMvb KZ…©cÿ MvQ KZ©b K‡i bZzb Mv‡Qi Pviv †ivcb Ki‡eb g‡g© D‡jøL K‡ib|Ó It was further stated that, Ò8| MvQ KZ©‡bi d‡j cwi‡e‡ki †Kvb ÿwZi KviY †bB g‡g© cªwZqgvb nq | KviY KZ©„cÿ cybt Mv‡Qi Pviv †ivcb Ki‡eb e‡j Rvbvb|Ó The Deputy Director of Environment Directorate, Sylhet Division issued a letter dated 03.09.2011(Annexure-E) addressing the Deputy Commissioner, Moulvibazar stating, inter alia, that, Ò1| Acwic° MvQ KZ©b Kiv hv‡e bv| 6| evMv‡bi eq¯‹ MvQ KZ©‡bi ci †kW wU« wn‡m‡e †`kxq cªRvZxi ch©vß msL¨K MvQ jvMv‡Z n‡e| 7| wefv‡Mi cªPwjZ wbqgbxwZ cvjb K‡i eb wefvM n‡Z MvQ KZ©b I Acmvi‡bi AbygwZ cÎ cªvwßi ci cÖv_©xZ ebR m¤ú` KZ©b/AcmviY Ki‡Z n‡e| eb wefvM KZ…©K wba©vwiZ Mv‡Qi RvZ, NbdzU I msL¨v PzovšÍ e‡j we‡ewPZ n‡e| 9|evMvbwUi c~e© cv‡k¡© ebwefv‡Mi wiRvf© d‡ió _vKvq mZK©Zv Aej¤^b Ki‡Z n‡e| G wel‡q eb wefv‡Mi cªwZwbwai Dcw¯nZ Ges KZ©„c‡ÿi wm×všÍ P~ovšÍ n‡e|Ó (underlined by us). In the aforesaid letters, it was specially mentioned that immatured trees would not be cut down and sufficient number of trees must be planted. But unfortunately, it was mentioned that due to chopping down the trees the environment would not be affected.

9. Annexure-E(1) shows that the Additional Deputy Commissioner (Rev), Moulvibazar issued a letter addressing the Divisional Forest Officer, Sylhet Division, inter alia, stated, ÒM) cwi‡ek Awa`ß‡ii mKj kZ© Avek¨K cvjb Ki‡Z n‡e| †Kvb Ae¯nv‡Z cwi‡ek ÿwZmvab K‡i MvQ KZ©b Kiv hv‡e bv|Ó

10. Thereafter, the Division Forest Officer issued the impugned letter (Annexure-F to the writ petition). Contents of which are as follows:

ÒMbcªRvZš¿x evsjv‡`k miKvi

wefvMxq eb Kg©KZ©vi Kvh©vjq

wm‡jU eb wefvM|

wm‡jU

¯gviK bs-22.01.0000.672.21.030.14.6156 ZvwiL-22/12/2014Bs

cªvcK,

‡iÄ Kg©KZ©v,

KzjvDov †iÄ|

welq- KzjvDov Dc‡Rjvaxb wSgvB Pv evMv‡bi f~wg nB‡Z MvQ KZ©b Ges ¯’vbvšÍi cªm‡½|

m~Ît †Rjv cÖkvmK †gŠjfx evRvi Gi ¯gviK bs-05.00.5800.024.01.056.14-163(2)

ZvwiL-07/12/2014Bs|

wel‡q ewY©Z Pv evMv‡bi MvQ ¯’vbvšÍ‡ii wbwg‡Ë g¨v‡bRvi wSgvB Pv evMvb KZ©„K †Rjv cÖkvmK, †gŠjfx evRvi Gi gva¨‡g Ô7Õ di‡g `vwLjK…Z Av‡e`b c‡Îi g~jKwc Ges D³ Pv evMv‡bi MvQ KZ©‡bi wbwg‡Ë evsjv‡`k Pv †ev‡W©i AbygwZ I Zrmshy³ KvMR c‡Îi Av‡jvKQvc GZ`ms‡M †cÖiY Kiv nBj| Av‡e`bc‡Îi ewY©Z `vM mg~‡ni mwnZ evsjv‡`k Pv †ev‡W©i AbygwZ c‡Îi ewY©Z `vM Ges wbR `wj‡j we`¨gvb †h mg¯Z `v‡Mi Mv‡Qi cÖRvwZ, †kªYx msL¨v I cwigvb (NbwgUvi) D‡jøLc~e©K gvwK©s ZvwjKv I †kªYx wfwËK mvi ms‡ÿcmn we¯ÍvwiZ Z`šÍ cÖwZ‡e`b mnKvix eb msiÿbK, kªxg½j Gi gva¨‡g Gi Kvh©vj‡q †cªiY Kivi Rb¨ wb‡`©k †`Iqv nBj| gvwK©s ZvwjKvi cªwZ cvZvq †bvU ewn c„óv bs I ¯^vÿi _vwK‡Z nB‡e|

cª¯ÍvweZ cviwgUfz³ msiwÿZ e‡bi mxgvbv msjMoe nB‡Z †hŠ_ Rixc KiZt †hŠ_ Rixc cªwZ‡e`b I †hŠ_ ¯^vÿwiZ g¨vc g~j cªwZ‡e`‡bi mwnZ `vwLj Kwi‡Z nB‡e| D³ g¨v‡c †Rjv cªkvm‡Ki c‡ÿ f~wg msμvšÍ GKRb Dchy³ Kg©KZ©vi ¯^ÿi _vwK‡Z nB‡e| Bnv Qvov GZ`ms‡M IqvwK© cøvb dig ÔweÕ h_vh_ cyiY KiZt f~wgi ceU mxU g¨vcmn mxUg¨v‡ci Dci Av‡e`b K…Z `vM bs †`LvBqv I cvk¡©eZ©x ebf~wgi Ae¯’vb cª`k©bx c~e©K 16Ó-1 gvBj wnmv‡e 2 cª¯n †U«m g¨vc `vwLj Kwi‡Z nB‡e|

D‡jøL¨ †h, wSgvB Pv evMv‡bi KZ©b †hvM¨ Mv‡Qi g‡a¨ evMvb KZ…©K †ivwcZ Mv‡Qi msL¨ †kªYx I cwigvb (NbwgUvi) D‡jøL Kwi‡Z nB‡e| Bnv Qvov D³ PvevMvb nB‡Z msiwÿZ eb f~wgi `yiZ¡ I mvwU©wd‡KU gvgjv Av‡Q wKbv cªvK…wZK fv‡e Rb¥v‡bv †Kvb MvQ Pv evMv‡‡bi ‡Kvb MvQ, cvwL, eb¨cªvbx Avevm¯’j wnmv‡e wPwnæZ nB‡j ev cªK…wZ msiÿb/f~wg ÿq‡iv‡ai Rb¨ we‡ewPZ †Kvb MvQ eb¨c«vYx (msi¶b I wbivcËv) AvBb 2012 I D‡jøwLZ i¶Z MvQ 3Ó-0 dzU Gi Kg †e‡o m¤úboe †Kvb MvQ gvK©v Kiv hvB‡e bv Ges cªwZ‡e`‡b D³ welqvw` D‡jøL Kwi‡Z nBe| m‡e©vcwi †Rjv cªkvmK, KZ©„K cª`Ë cªwZ‡e`b I dig Ô7Õ G D‡jøwLZ `vM I f~wgi cwigvb hvPvB evQvB Kwiqv hveZxq Kvh©vw` m¤úboe Kwi‡Z nB‡e|

¯^vÿi-A¯úó

‡gvt †`‡jvqvi †nv‡mb

wefvMxq eb Kg©KZ©v

wm‡jU eb wefvM

wm‡jU Ó

11. Whole attempt, as it appears from the materials on record, was that the writ respondent No.7 decided to convert the land with trees for tea garden purposes. Since environment issue is very important aspect today, the matter deserves meticulous consideration. Environmental deterioration and ecological imbalance have been affecting the humanity seriously. Most important ecological problem is wide spread disappearance of forest. Many species depend almost entirely on trees for shelter, safety, food and for reproduction.

12. When our constitution was adopted in 1972, the framers had not foreseen the importance of environmental preservation. This aspect did receive attention later and, in 2011, 15th amendment of the Constitution incorporated protection the natural resources, biodiversity, wetlands, forests and wildlife. Article 18A of the Constitution provides that the State shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, biodiversity, wetlands, forests and wild life for the present and future citizens. In the case where the problem of ecology is brought before the Court, the Court is bound to bear in mind article 18A which enjoins that the State shall endeavour to protect and improve the environment. It is our constitutional duty to safeguard the forests and wildlife of the country. The Constitution proclaims it to be fundamental duty of every citizen of Bangladesh to protect and improve the natural environment including forests. Depletion of forests would lead to ecological imbalance.

13. Accordingly to the Holly Quran the creation of man is, as a matter of fact, the culmination of a well defined divine scheme. Since earth is divinely gifted abode for man and man is its the divinely appointed custodian, it is his divinely assigned duty to protect, guard and nurture the planet which is his and his fellow creatures’ sole habital. Just like men, nature is the creation of Allah. Nobody has the right to exploit the resources of nature at his will and pleasure never minding the consequences of their action. According to the Holly Quran man is accountable to Allah for his actions. Man has no absolute freedom on nature. Our Prophet (peace be upon him) encouraged cultivation and plantation. He said, “When a Muslim plants a tree or cultivate a crop, and birds and animals eat from them, he will be rewarded for charity. Even if the crops are stolen he will be rewarded.”

14. The preservation of ecology and environment, based on the principle of sustainable development to reconcile the conflicting interest of development with the preservation of healthy environment has been recognized as a facet of right of life. The principle adopted is that ecology and environment are not objects of ownership but are nature’s gift intended to be preserved in trust for future generation. The main motto of social life is to live in harmony with nature. Ongoing environmental degradation that is going must now come to a stop. For balancing our environment, massive tree plantation in the country has become vital. The adverse impacts of climate change and now acutely felt all over the country. Global warming is a worrying issue for us all. The increase of CO2 in the levels of atmospheric is a significant contributory factor in global warming. Trees play a vital role in absorbing CO2 and releasing Oxygen in day time. Trees absorb harmful gases and emit oxygen resulting in increase of oxygen supply. It is said that on an average, a single tree emits 260 pounds of oxygen annually. Similarly, a fully-grown tree is sufficient for 18 human beings in one acre of land in one year stressing the importance of tree plantation for mankind (source-wikipedia). Number one problem caused by deforestation is the impact on the global carbon cycle. Gas molecules that absorb thermal inferred radiation which are called greenhouse gases. It is our duty to plant trees as a top priority to save the country from natural disasters.

15. The public has a right to expect certain lands and natural areas to retain their natural characteristic in finding its way into the law of the land. Professor Barbara Ward has written of this ecological imperative in language:

“We can forget moral imperatives. But today the morals of respect and care and modesty come to us in a form we cannot evade. We can not cheat on DNA. We can not get round photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary life. To say we do not care is to say in the most literal sense that “we choose death.”

16. It is to be regarded as a sacred duty of every one to protect forests, trees, flora and fauna. When trees are cut the natural balance is upset and the important functions that trees perform such as holding the soil in place, protecting ground water, and providing food and shelter for plants and animals cannot take place. Overcutting forests and the disruption of the forest ecosystem are causing erosion of soil, loss of biodiversity, loss of soil fertility etc. Where the process continues for a long period of time or over a large area there can be total environmental collapse. The trees provide oxygen, reduce air pollution, and provide shade from the sum and shelter from harsh weather.

17. Submission of the learned Advocates of respondent regarding locus-standi of the appellant to file writ petition it is to be mentioned that in order to have locus-standi to file a writ petition, the petitioner should be an ‘aggrieved person’. The expression ‘aggrieved person’ has not been defined anywhere. The term, however, denotes an elastic, and to some extent, and elusive concept. It cannot be confined within the bounds of rigid, exact and comprehensive formula. Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary of otherwise or cause him some prejudice in one form or other. In this case the appellant has a genuine grievance because the order passed may prejudicially affects his interests as well as the interest of his community.

18. Be that as it may, it is also to be considered that the agreement of lease between the Government and the writ petitioner provides a clause for extension/ expansion of tea garden on the lease hold land. Moreover, tea is one of our exportable item earning foreign currency as well as fulfilling the local demand of tea, which is increasing day by day.

CIVIL APPEAL NO.458 OF 2017.

(From the judgment and order dated 30.03.2017 passed by the High Court Division in Writ Petition No.2001 of 2015.)

Rani Bilkis Banu Chowdhury Vs. Commissioner of Taxes, Dhaka, XV BLT (AD) (2007) 84

Case No: Civil Petition for leave to Appeal No. 793 of 2003

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. A.K.M. Fakrul Islam,,

Citation: XV BLT (AD) (2007) 84

Case Year: 2007

Appellant: Rani Bilkis Banu Chowdhury

Respondent: Commissioner of Taxes

Subject: Income Tax, Fiscal Law,

Delivery Date: 2005-7-17

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J

Mrs. Rani Bilkis Banu Chowdhury
…………………Petitioner
Vs.
The Commissioner of Taxes, Circle -88, Zone-8, Dhaka
…………………..Respondent

Judgment
July 17, 2005.

The Income Tax Ordinance, 1984
Section 160
In taxation matter reference is to be made out of final decision/judgment passed by the Taxes Appellate Tribunal. Since in the instant case, the Appellate Tribunal rejected the appeal on the ground of limitation and the reference having not been made on point of limitation, the High Court Division rightly refused to answer the question raised. …. (8)

Lawyers Involved:
Fakrul Islam, Advocate-on-Record - For the Petitioner.
Not represented-the Respondents.

Civil Petition for leave to Appeal No. 793 of 2003.
(From the judgment and order dated 21.04.2003 passed by the High Court Division in Reference Application No.57 of 2000).

JUDGMENT

M. M. Ruhul Amin, J.

This petition for leave to appeal is directed against the judgment and order dated 21.04.2003 passed by a Division Bench of the High Court Division in Reference Application No.57 of 2000 under section 27 of the Wealth Tax Act, 1963 which arose out of an order dated 22.03.2000 in Wealth Tax Appeal No.72 of 1999-2000 for the assessment year 1995-96 passed by the Taxes Appellate Tribunal Dhaka, Division Bench-1, Dhaka.

2. Short facts are that in the present reference application the petitioner Mrs. Rani Bilkis Banu Chowdhury submitted return for the Wealth Tax for the respective assessment years as aforesaid and the Assistant Commissioner of Taxes estimated the value of land and building at Tk. 72,00,000/- for the assessment year 1994-95. The said Assistant Commissioner of Taxes Dhaka Circle estimated the value of land and building at Tk. 79,50,000/- for the assessment year 1995-96 and estimated the value of the land and building at Tk. 90,00,000/- for the assessment year 1996-97 and also estimated the value of land and building of the applicant at Tk. 90,00,000/- for the assessment year 1996-98.

3. Being dissatisfied with the order of assessment the applicant preferred appeal before the Appellate Joint Commissioner of Taxes and the Appellate Joint Commissioner of Taxes rejected the appeal and affirmed the order of the Assistant Commissioner of Taxes. The applicant then preferred second appeal before the Wealth Tax Appellate Tribunal and the Appellate Tribunal by an order dated 22.03.2000 dismissed the appeal on the ground that the appeal made before the Joint Commissioner of Taxes was time barred.

4. In the circumstances, the applicant before the High Court Division formulated the following point of law which is said to arise from the impugned order dated 22.03.2000.

5. Whether on the facts and in the circumstances of the case, the Assistant Commissioner of Taxes was justified in making valuation of land and building and that whether the Appellate Tribunal was right in upholding the order of Appellate Joint Commissioner of Taxes on the facts and under Rule 8(3) of the Wealth Tax Act, 1963 as the capital value of the property has been assessed by the Deputy Commissioner of Taxes as local authority for the purpose of the property tax.

6. The High Court Division on consideration the submissions made by the learned Advocate for the petitioner and the learned Deputy Attorney General held that from the impugned order dated 22.03.2000 passed by the Taxes Appellate Tribunal it is clear that the Tribunal only decided the question of limitation and found that the appeal preferred before the Appellate Joint Commissioner of Taxes was time barred and accordingly held that the Appellate Joint Commissioner of Taxes rightly rejected the appeal. The High Court Division, therefore, held that the question as formulated by the present petitioner in the reference application had not arisen from the impugned order passed by the Taxes Appellate Tribunal and hence the High Court Division cannot give any answer to the question raised.

7. We have heard Mr. Fakhrul Islam, the learned Advocate-on-Record for the petitioner and perused the judgment of the High Court Division and other connected papers.

8. In taxation matter reference is to be made out of final decision/judgment passed by the Taxes Appellate Tribunal. Since in the instant case, the Appellate Tribunal rejected the appeal on the ground of limitation and the reference having not been made on point of limitation, the High Court Division rightly refused to answer the question raised.
In the facts and circumstances, there is no cogent reason to interfere with the judgment of the High Court Division.

Accordingly, the leave petition is dismissed.

Ed.

Ranjit Kumar Bal and another Vs. Gopal Chandra Bal and others

Case No: Civil Petition for Leave to Appeal No.1026 of 2007.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,,

Citation: VI ADC (2009) 525

Case Year: 2009

Appellant: Ranjit Kumar Bal and another

Respondent: Gopal Chandra Bal and others

Subject: Property Law,

Delivery Date: 2008-10-13

Ranjit Kumar Bal and another Vs. Gopal Chandra Bal and others
VI ADC (2009) 525

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J

Ranjit Kumar Bal and another……………………………...Petitioners
Vs.
Gopal Chandra Bal and others………………………......Respondents

Judgment
October 13, 2008.

As it appears the High Court Division discharged the Rule holding that the plaintiff No.1, who himself was examined as P.W.1, in his deposition admitted that Ram Ratan Bal went to India during liberation war and returned back after liberation of Bangladesh and P.W.2 also admitted the said fact that Ram Ratan Bal went to India during Pakistan Regime and returned back to Bangladesh after liberation and it is the case of the plaintiff that they purchased the suit land by a kabala dated 9.10.1971 and the evidence of P.Ws.1 and 2, transpires the said deed has not been executed and registered by the Ram Ratan Bal and moreover the witnesses of the defendants proved the possession of the defendants in the suit land and the courts below believing the same held that the plaintiff failed to prove his case and moreover so far the second declaration sought by the plaintiff there is no material on record by which the compromise decree passed in Title Suit No.68 of 1977 could be declared illegal or void. …. (6)

Lawyers Involved:
Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No.1026 of 2007.
(From the judgment and order dated 22.3.2007 passed by the High Court Division in Civil Revision No.5361 of 1998).

Judgment

Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 22.3.2007 of the High Court Division passed in Civil Revision No. 5361 of 1998 discharging the Rule obtained against the judgment and decree dated 30.9.98 of the learned Additional District Judge Jhalakati passed in Title Appeal No.10 of 93 dismissing the appeal filed against those of dated 31.10.92 of the learned Subordinate Judge (now Joint District Judge), Jhalakati passed in Title Suit No.49 of 1990 declaring that the plaintiffs have no right title and interest in the suit land.

2. Facts, in brief, are that the petitioners, as plaintiffs, filed the above suit for declaration of their title on 3.781½ acres of land described in schedule Ka of the plaint and also for declaration that the compromise decree dated 17.6.77 passed in Title Suit No.68 of 1997 in respect of the above Ka schedule property, being obtained fraudulently, is not binding upon them on the averments that the Ram Ratan Bal, the defendant No. 2, was the original owner of the suit land and he on 9.10.71 sold the same to them at a consideration of Tk.3000/- and since then they had been in possession of the same by mutating their names and that the defendant No.1 is the son of Shamvu Nath Bal, a co-sharer of the suit land and due to insolvency they were not in a position to purchase the suit land or to file an application and during liberation war the defendant No.1 left for India and he then succeeded in obtaining the above compromise decree on 17.6.77 by showing that he obtained the suit land in the year 1354 B.S. by pattan but at that time the defendant No.1 was not born and in fact the alleged decree was obtained collusively by suppressing summons.

3. The defendant No.1 contested the suit and filed written statement denying all the material allegations and contending that the suit land originally belonged to Ram Ratan Bal and Sarada Charan Bal and he took pattan of the said land in 1354 B.S. at a rent of Tk.35/- and since then he is in possession in the suit land and he filed Title Suit No.68 of 1977 for declaration of his title in the suit land which was decreed on compromise on 17.6.1977.

4. The learned Subordinate Judge (now Joint District Judge), after hearing, decreed the suit in part reject the prayer for declaration of the title of the plaintiff in the suit property but setting aside the compromise decree dated 17.6.19977 passed in Title Suit No.68 of 1977. Being aggrieved, the plaintiffs filed Title Appeal No.10 of 1993 and the defendants filed Title Appeal No.202 of 1992 and the learned Additional District Judge, Jhalakati who heard both the appeals analogously dismissed Title Appeal No.10 of 1993 and allowed Title Appeal No.202 of 1992. On revision the High Court Division discharged the Rule.

5. The learned counsel for the petitioner submitted that the plaintiffs purchased the suit land on 9.10.1971 from Ramratan Bal and since then they are in possession by mutating their name and they also proved the true copy of kabala deed, Ext. 4, order for mutation Ext.1 and the concerned rent receipts Ext. 3 series and further the witnesses of the plaintiffs categorically stated that the plaintiffs are in possession of the suit land and defendant No.1 is not in possession of the same and that P.W.3 is the Head Master of Kathalia Pilot High School, who used to know the signature of defendant No.1 issued a certificate Ext.5 wherein the date of birth of Gopal Chandra the defendant No.1 was shown on 30.4.1950 and so the trial Court disbelieved the taking of pattan by the defendant No.1 in the year 1354 B.S, as in the year 1354 B.S, defendant No.1 was not even born and the High Court Division did not at all controvert the above findings of the learned Trial Court as to taking pattan of the suit land by the defendant No.1.

6. As it appears the High Court Division discharged the Rule holding that the plaintiff No.1, who himself was examined as P.W.1, in his deposition admitted that Ram Ratan Bal went to India during liberation war and returned back after liberation of Bangladesh and P.W.2 also admitted the said fact that Ram Ratan Bal went to India during Pakistan Regime and returned back to Bangladesh after liberation and it is the case of the plaintiff that they purchased the suit land by a kabala dated 9.10.1971 and the evidence of P.Ws.1 and 2, transpires the said deed has not been executed and registered by the Ram Ratan Bal and moreover the witnesses of the defendants proved the possession of the defendants in the suit land and the courts below believing the same held that the plaintiff failed to prove his case and moreover so far the second declaration sought by the plaintiff there is no material on record by which the compromise decree passed in Title Suit No.68 of 1977 could be declared illegal or void.

7. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infirmity in the above decision so as to call for any interference.
The petition is dismissed.
Ed.

Ranjit Sarker and others. Vs. Sree Sukhendu Bikash Biswas & others

Case No: Civil Appeal No. 51 of 1994.

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,S. R. Pal ,,

Citation: II ADC (2005) 581

Case Year: 2005

Appellant: Ranjit Sarker and others.

Respondent: Sree Sukhendu Bikash Biswas & others

Subject: Property Law,

Delivery Date: 1996-06-13

Ranjit Sarker and others. Vs. Sree Sukhendu Bikash Biswas & others

II ADC (2005) 581

Supreme Court
Appellate Division

(Civil)

Present:

ATM Afzal CJ
Mustafa Kamal J
Latifur Rhman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Ranjit Sarker and ors..................Defendant-Appellants.

Vs.

Sree Sukhendu Bikash Biswas & ors.........Plaintiff-Respondents

Judgment
June13, 1996.

The gross omission made by the said court is in respect of the clear findings that the deed of agreement for reconveyance (Ext. D), the deeds of reconveyance and the subsequent deeds of sale were genuine. This goes to the root of the merit of the case since no relief could be granted to the plaintiff without coming to any finding that any of the said deeds other than the deeds of sale under pre-emption were sham.….(10)

Lawyers Involved:
Khandaker Mahabubuddin Ahmed, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record – For the Appellants
S.R. Pal, Senior Advocate, instructed by Md. Aftab Hossain, Advocate on Record - For the Respondents
Not Represented - Respondent Nos. 2-6.

Civil Appeal No. 51 of 1994.
(From the Judgment and Order dated 27 April, 1994 passed by the High Court Division Dhaka in F.A. No. 11 of 1984 (Chittagong) F.A. No. 323 of 1991 (Dhaka).

Judgment

Bimalendu Bikash Roy Choudhury J. - This appeal by leave has been preferred by defendant Nos. 6(ka) - 6 (uma) against the judgment and decree dated 27April 1994 of a Division Bench of the High Court Division in F.A. No. 11 of 1984 (Chittagong), subsequently renumbered 323 of 1991 (Dhaka), which, reversing those of the Subordinate Judge, Patiya, decreed the plaintiff's suit, Other Suit No. 163 of 1981 in part.

2. The patent facts are that the suit homestead with its adjuncts and adjoining thank, ditch etc. originally belonged to Kailash Dey. Kailash was survived by his two sons Krishna Chandra and Kshetra Mohan. Krishna Chandra at his death left behind his three sons, plaintiff Sudhendu, defendant No. 3 Nirmalendu, Ardhendu and Purnendu, besides his widow, defendant No. 4 Kiron Bala. Ardhendu and Purnendu died unmarried to be succeeded by his two surviving brothers- the plaintiff and defendant No. 3. Krishan died leaving behind one son defendant No. 2 Kanu and his widow. Defendant No. 5 Kanu executed a deed of sale (Ext.4) on 1 August 1979 which was registered on 12 September 1980 in favour of defendant No. 1 Chandra Shekhar Mallick who was a stranger to the holdings to which the suit property appertains for a consideration of Tk. 8,000/=. On 23 November 1979 when the deed of sale dated 1 August 1979 was presented for registration a deed of agreement for reconveyance of the property under sale (Ext. D) was executed by defendant No. 1 on stamp purchased by him on 19 October 1979 stipulating that he would recovery the property whenever he received back the consideration money. On 28 July 1980 defendant No.1 executed and registered two deeds of reconveyance in respect of the property in favour of defendant No.2 who in his turn on the same date executed and registered two deeds of sale in favour of defendant No.6 Suresh and his mother defendant No. 7.
2. On 29 September 1980 the plaintiff brought the suit in the Court of Munsif at Patiya which was subsequently transferred to the Court of Subordinate Judge of that place for pre-empting the suit property and also for declaring that the two registered deeds of reconveyance executed by defendant No.1 in favour of defendant No.2 on 28 July 1980 as well as the two deeds of sale executed by defendant No. 2 in favour of defendant No.7 on the same date were colourable deeds without consideration. The plaintiff claimed that the deed of sale dated 1 August 1979 was a deed of out and out sale and that he was a co-sharer in the suit holdings and defendant No. 1 was a stranger thereto.

3. In course of the proceedings of the suit defendant No. 6 died and his heirs were substituted in his place as defendant Nos.6 (ka) 6(uma).
Defendant No.1 filed a written statement supporting the case of the plaintiff while defendant No.2 and defendant Nos. 6 (ka) - 6(uma) and defendant No. 7 contested the suit. Their contention was that the deed of sale under pre-emption was in fact a deed of mortgage to secure a loan of Tk. 8,000/-on repayment of which defendant No.1 had reconveyed the suit property to defendant No.2 by the two deeds of reconveyance. Again defendant No. 2 sold the suit property to defendant No.6 (since deceased) and his mother defendant No.7 on receipt of the consideration of Tk.72,000/-. In substance the defence case was that the deeds assailed by the plaintiff were not colourable deeds but genuine deeds.

4. On consideration of the facts and circumstances of the case and the evidence on record the trial court dismissed the suit. The unsuccessful plaintiff then took an appeal there form to the High Court Division which, by the impugned judgment, reversed the decision of the trial court and decreed the suit in part allowing preemption.

5. In terms of the leave granted by this Court the only question involved in the appeal is whether the judgement of the High Court Division is a proper judgment of reversal.

6. Appearing in support of the defendant-appellants Khandaker Mahbubuddin Ahmed, learned Counsel submits that the learned Judges of the High Court Division did not consider all the material facts and circumstances and the evidence taken into consideration by the trial Court and advert to its reasoning nor did they reverse all the material findings of the said Court. He also maintains that the recoveyance having already taken place before the institution of the suit by the plaintiff and there being no finding that the reconveyance to the vendor, defendant No.2 was sham the suit was to fail, and there was also no scope for passing a part decree.

7. In reply Mr. S.R. Pal, learned Counsel has attempted to argue that in view of section 47 of the Registration Act the agreement for reconveyance was subsequent to the kabala under pre-emption and so the learned Judges of the High Court Division rightly decreed the suit allowing pre-emption.

8. It appears that the trial court came to the findings that agreement Ext. D dated 23.11.79 executed by defendant No.1 in favour of defendant No.2 was a genuine document, that the kabala dated 1.8.79 was subject to an agreement for reconveyance, that the said kabala was never an out and our sale deed and that the suit was not maintainable. In coming to the above conclusion the said court took into consideration, besides the oral evidence of the witnesses and the attending circumstances, the utterly low price shown in the kabala under preemption and the execution of the deed of agreement on the date of presentation of the kabala in question as indicative that the kabala under pre-emption was in fact a deed of mortgage to secure a loan. With regard to the evidence of D. W.1 and D. W.2 the court observed: The evidence of D.W. 1 appears to be against the contents of Ext. 4 and D. It appears that the suit was instituted on 29.9.80 but defendant No.1 filed the written statement on 21.7.83 i.e. after fixation of the peremptory hearing. I am of view that defendant No. 1 having been gained over by the plaintiff filed the written statement contending false and baseless allegations and that he has given perjured evidence'. The trial court further found that the two deeds of reconveyance as well as the two subsequent deeds of sale were genuine documents. In arriving at this finding as well the trial court considered the internal evidence of the documents and also the oral evidence of the witnesses adduced by the parties. On consideration of the oral evidence the trial court found further that defendant Nos. 6 (ka) – 6 (uma) and defendant No.7 were in possession of the suit property by virtue of the aforesaid deeds of reconveyance and the deeds of sale dated 28 July 1980. The said court relied on the evidence of D. W. 2- D. W. 6 besides series of dakhilas (Ext. C. series) showing payment of rent for the suit property and disbelieved the evidence of the P.Ws. in coming to its conclusion. Accordingly the trial Court came to the conclusion that the plaintiff failed to prove that the aforesaid deeds of reconveyance and the subsequent deeds of sale, all dated 28 July 1980, were collusive and colourable.

9. The appellate court set aside the judgment of the trial court and decreed the suit in part allowing pre-emption. In arriving at its decision the appellate court was of the view that since the deed of agreement for reconveyance was not contemporaneous to the execution of the kabala under pre-emption, the deeds of reconveyance being subsequent to the said kabala could not defeat the right of pre-emption of the plaintiff. The said court referred to the agreement for reconveyance (Ext. D) and observed that there was a mention in the same about oral agreement for reconveyance from the date of execution of the said deed and that this would be treated as a subsequent agreement which could not take away the character of the deed of sale under pre-emption, but did not at all advert to the reasoning of the trial court in this respect. It is also patent that the appellate court did not reverse the finding of the trial court that the plaintiff failed to prove that the agreement for reconveyance (Ext. D), the disputed deeds of reconveyance and subsequent sales were collusive, fraudulent etc. The appellate Court observed: It is not necessary, therefore, for us to decide whether other four sale deeds in question are sham or invalid deeds in view of the legal position that second, sixth and seventh defendants took the property with the infirmity attaching to the title of the first defendant's title so that from the date of pre-emption their title also would be destroyed".

10. The facts narrated here above clearly indicate that the appellate court failed to advert to the specific reasoning of the trial court nor has it discussed all the material evidence taken into consideration by the trial court. The gross omission made by the said court is in respect of the clear findings that the deed of agreement for reconveyance (Ext. D), the deeds of reconveyance and the subsequent deeds of sale were genuine. This goes to the root of the merit of the case since no relief could be granted to the plaintiff without coming to any finding that any of the said deeds other than the deeds of sale under pre-emption were sham. In the circumstances the contention of the learned Counsel for the respondent fails.

11. In the result, the appeal be allowed, the judgment and decree of the High Court Division be set aside and the case be sent back to that court for fresh disposal in accordance with law and in the light of the observations made here in above. There will be no order as to costs. The appeal may be heard by any Division Bench of the High Court Division other than the one which heard the matter earlier.
Ed.

Ranju Roy and other Vs. Jibesh Ranjan Roy and others

Case No: Civil Petition for Leave to Appeal No. 545 of 2006.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,,

Citation: VI ADC (2009) 223

Case Year: 2009

Appellant: Ranju Roy and other

Respondent: Jibesh Ranjan Roy and others

Subject: Property Law,

Delivery Date: 2007-11-18

Ranju Roy and other Vs. Jibesh Ranjan Roy and others
VI ADC (2009) 223

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J

Ranju Roy and other…….............Petitioners
Vs.
Jibesh Ranjan Roy and others….......Respondents

Judgment
November 18, 2007.

As it appears the High Court Division found that Mohan Bashi Roy, the plaintiff, without filing the kabala deed dated 23.6.1985 allegedly executed by Arun Chandra Shill in his favour which is the basic document of his title, merely submitted a certified copy of the same and also took no steps to prove the transfer of title in his favour and the records of the appellate Court did not show that the original kabala deed dated 23.6.1985 was ever submitted before the learned Additional District Judge nor any prayer was made by the plaintiff to enable him to prove the fact of said transfer; further the trial Court decreed the suit assuming that the plaintiff having proved his possession in the suit land for more than the statutory period of limitation acquired title by adverse possession although the plaintiff, in 'the plaint, did not seek declaration of title in the suit land on the basis of adverse possession; moreover the plaintiff, who examined him as P.W.1, in his cross-examination admitted that he started to reside in the suit homestead as a licensee under Manindra; further the plaintiff had set up his claim of possession firstly as a licensee under Manindra and thereafter on the strength of the kabala deed dated 23.6.1985 executed by Arun Chandra Shil in his favour, the subsequent claim of the plaintiff on the basis of kabala dated 23.6.1986 has no basis at all because admittedly the suit land is situated within the territorial jurisdiction of Derai Sub-registry Office but the plaintiffs kabala dated 23.06.86 allegedly executed by Arun Chandra Shil was registered at the Sunamganj Sub-registry Office on including fictitious land only to attract the jurisdiction of Sunamganj Sub-registry Office and further the plaintiff had failed to produce any document at the trial to show that the land included in the kabala belonged to Arun Chandra Shil nor any evidence is available on recorded to show that the said land belonged to Arun Chandra Shil; in view of the above the kabala dated 23.06.85, if any, being registered offending the provision of section 28 of the Registration Act is nothing but a void deed. Further in the case of Abdus Samad Mohammad vs. Deputy Commissioner and Custodian of Vested Property and others reported in 52 DLR (AD) 121 it has "been held that possession for more than the statutory period of limitation as a licensee does not create any title. …. (6)

Case Referred To-
Abdus Samad Mohammad vs. Deputy Commissioner and Custodian of Vested Property and others, 52 DLR (AD) 121.

Lawyers Involved:
Mrs. Sufia Khatoon, Advocate-on-Record-For the Petitioners.
Not represented- the Respondent.

Civil Petition for Leave to Appeal No. 545 of 2006.
(From the judgment and order dated 24.1. 2006 passed by the High Court Division in Civil Revision No. 3898 of 1997).

Judgment

Md. Tafazzul Islam J. - This petition for leave to appeal is directed against the judgment and order dated 24.1.2006 of the High Court Division passed in Civil Revision No. 3898 of 1997 discharging the Rule.

2. Facts, in brief, are that Mohen Bashi Roy, the predecessor of the petitioners, filed Title Suit No.36 of 1985 in the Court of the then Munsif (now Assistant Judge), Derai, Sunamganj for declaration of his right, title and interest in the suit land and for further declaration that the ex parte decree dated 27.5.1985 of the same very Court passed in Title Suit No. 30 of 1985 is illegal, void and not binding upon him on the averments that the suit land belonged to Raj Chandra who died leaving behind three sons namely Mukunda, Bipin and Manindra and after the death of Mukunda and Bipin the entire property devolved up Manindra; in the year 1972 Manindra who was ailing due to his old age brought the plaintiff to his own house and since then the plaintiff had been residing with Manindra; Manindra having died without any issue, the entire property devolved upon Arun Chandra Shil, the heir of Manindra; the plaintiff continued his possession in the suit homestead with the permission of Arun Chandra Shil who on 23.6.1985, at a consideration of Tk.15,000/-, along with other lands, also sold the suit land to the plaintiff by a registered kabala; the defendant No.1 in June 1985 for the first time, claimed the suit land on the basis of a managed ex parte judgment and decree dated 27.5.1985 passed in Title Suit No.30 of 1985 in which only the Government was impleaded as a party and further the averments made in the plaint of Title Suit No.30 of 1985 are not correct and that the alleged kabala dated 15.12.1936 as mentioned in the above plaint was an outcome of forgery and the said kabala was never acted upon.

3. The defendant No.1 contested the suit by filing written statement contending that Jadhunath was the original owner of the suit land and Raj Chandra, who was his under raiyat, took a loan of Tk. 172/- from Jadhunath and being unable to the pay that loan Raj Chandra, by kabala dated 15.12.1936, sold the suit land along with other land to Jadhunath and after the above transfer Raj Chandra, having no other land of his own for his living, started living in the suit land with his family members with the permission of Jadhunath and after the death of Raj Chandra, his three sons Mukunda, Bipin and Manindra, with the permission of Jadhunath, resided therein; Jadhunath having died leaving his son Jogesh Chandra the father of the defendant No.1 and then Mukunda, Bipin and Manindra with the permission of Jogesh Chandra, resided therein; Mukunda, Bipin and Manindra and Mukunda having died without leaving any issue, Jogesh Chandra transferred the suit land to the defendant No. 1 by a registered will on the basis of which he owned and possessed the suit land and since he had been possessing the suit land physically, the preparation of the S.A. record in the name of Bipin and others was wrong; the defendant No.1 after coming to know about the wrong recording of S.A. record, filed Title Suit No.30 of 1985 in Falgun 1391 which was decreed on 25.5.1985. The plaintiff having requested the defendant No.1 to accommodate him in the suit premises for same period, he out of sympathy, allowed the plaintiff to stay in the suit premises and the alleged deed on the basis of which the 'plaintiff claimed title is fraudulent and the plaintiff had not title in the suit land.

4. The learned Assistant Judge, after hearing, decreed the suit. Being aggrieved the defendant No.1 preferred Title Appeal No.43 of 1986 and the learned Additional District Judge Sunamganj, after hearing, by judgment and decree dated 6.8.1997 allowed the appeal and thereby dismissed the suit. On revision the High Court Division in Civil Revision No.3839 of 1987, after hearing, discharged the Rule.

5. We have heard the learned advocate-on-record for the petitioner and perused the impugned judgment and order and the connected papers.

6. As it appears the High Court Division found that Mohan Bashi Roy, the plaintiff, without filing the kabala deed dated 23.6.1985 allegedly executed by Arun Chandra Shill in his favour which is the basic document of his title, merely submitted a certified copy of the same and also took no steps to prove the transfer of title in his favour and the records of the appellate Court did not show that the original kabala deed dated 23.6.1985 was ever submitted before the learned Additional District Judge nor any prayer was made by the plaintiff to enable him to prove the fact of said transfer; further the trial Court decreed the suit assuming that the plaintiff having proved his possession in the suit land for more than the statutory period of limitation acquired title by adverse possession although the plaintiff, in 'the plaint, did not seek declaration of title in the suit land on the basis of adverse possession; moreover the plaintiff, who examined him as P.W.1, in his cross-examination admitted that he started to reside in the suit homestead as a licensee under Manindra; further the plaintiff had set up his claim of possession firstly as a licensee under Manindra and thereafter on the strength of the kabala deed dated 23.6.1985 executed by Arun Chandra Shil in his favour, the subsequent claim of the plaintiff on the basis of kabala dated 23.6.1986 has no basis at all because admittedly the suit land is situated within the territorial jurisdiction of Derai Sub-registry Office but the plaintiffs kabala dated 23.06.86 allegedly executed by Arun Chandra Shil was registered at the Sunamganj Sub-registry Office on including fictitious land only to attract the jurisdiction of Sunamganj Sub-registry Office and further the plaintiff had failed to produce any document at the trial to show that the land included in the kabala belonged to Arun Chandra Shil nor any evidence is available on recorded to show that the said land belonged to Arun Chandra Shil; in view of the above the kabala dated 23.06.85, if any, being registered offending the provision of section 28 of the Registration Act is nothing but a void deed. Further in the case of Abdus Samad Mohammad vs. Deputy Commissioner and Custodian of Vested Property and others reported in 52 DLR (AD) 121 it has "been held that possession for more than the statutory period of limitation as a licensee does not create any title.

7. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference.
The petition is dismissed.
Ed.

Ranu Begum and another Vs. Kazi Liakat Ali and others, 50 DLR (AD) (1998) 142

Case No: Civil Petition for Leave to Appeal No. 629 of 1997

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 50 DLR (AD) (1998) 142

Case Year: 1998

Appellant: Ranu Begum and another

Respondent: Kazi Liakat Ali and others

Subject: Revisional Jurisdiction,

Delivery Date: 1997-7-23

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Ranu Begum and another
............................. Petitioners
Vs.
Kazi Liakat Ali and others
............................. Respondents

Judgment
July 23, 1997.

The Code of Civil Procedure, 1908 (V of 1908)
Section 115
The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Where alternative remedy is available, discretionary power is not to be exercised…..(3)
The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Where alternative remedy is available, discretionary power is not to be exercised…..(3)

Lawyers Involved:
SK Afzalur Rahman, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
Shamsul Haque Siddique, Advocate-on-Record-For the Respondents Nos. 1 & 2.
Not represented— Respondent Nos. 3-5.

Civil Petition for Leave to Appeal No. 629 of 1997.

JUDGMENT

Bimalendu Bikash Roy Choudhury J.

The plaintiffs are the petitioners before us. They brought in the Fourth Court of Assistant Judge, Dhaka a suit being Title Suit No. 234 of 1996 against defendant Nos. 1 and 2 and others to have it declared that stamp paper purporting to be a receipt given by them for a sum of Taka 10,00,000 was forged fraudulent and not binding on them. After the institution of the suit they made an application for temporary injunction restraining defendant Nos. 1 and 2 from taking any step to realise the said amount from them. The learned Assistant Judge thereupon issued a shoe cause notice to the said defendants. In pursuance thereof, the defendants entered appearance and filed a written objection thereto. As no step was taken by the plaintiffs on 12 February 1997, the date fixed for hearing of the matter the application was rejected by the learned Assistant Judge after hearing the learned Advocate for the defendants in support of the written objection, The plaintiffs moved the High Court Division with an application under section 115 of the Code of Civil Procedure, being Civil Revision No. 1216 of 1997 against the said order. A learned Single Judge of the said Court discharged the Rule, by his order dated May 1997, on the view that the revision case was incompetent, as the plaintiffs not availed themselves of the remedy provided in Order 43, rule 1(r) of the Code of Civil Procedure.

2. The plaintiffs have now presented this petition seeking leave to appeal therefrom. They contend, that having regard to the facts of the case, the High Court Division was not justified in discharging the Rule.

3. The exercise of the revisional power under section 115 of the Civil Procedure Code is a discretionary one. Ordinarily it is not to be exercised where there is an alternative remedy open to a party.

4. In the instant case the order of rejection of the application for temporary injunction was appealable under Order 43, rule 1(r) of the Code. The plaintiffs not having pursued the said course, the High Court Division was right in discharging Rule. The order of the learned Assistant Judge itself was a discretionary one and the circumstance of the case indicate that the said discretion was properly exercised by him.

This petition is, therefore, dismissed.

Ed.

Ratan Chandra Dey and others Vs. Jinnator Nahar and others

Case No: Civil Petition for leave to Appeal No. 1187 of 2004

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Abdul Wadud Bhuiyan,,

Citation: 61 DLR (AD) (2009) 116

Case Year: 2009

Appellant: Ratan Chandra Dey and others

Respondent: Jinnator Nahar and others

Subject: Property Law,

Delivery Date: 2007-07-29

Ratan Chandra Dey and others Vs. Jinnator Nahar and others
61 DLR (AD) (2009) 116

Supreme Court
Appellate Division
(Civil)

Present:
Mohommad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J

Ratan Chandra Dey and others ..........Petitioners
Vs.
Jinnator Nahar and others………….... Respondents

Judgment
29 July, 2007.

Specific Relief Act (I of 1877)
Section 42

The plaintiff is not entitled to a simple declaration that the appellant’s kabala is false and fraudulent without first establishing his title to the suit land.

Cases Referred To-
Md. Jashimuddin (Kanchan) Vs. Md. Ali Ashraf, 11 BLD (AD) 101; Munsur Ali Mallik Vs. Md. Nurul Hoque Mallik and others, 6 BCR 1986 (AD) 58; Most Sahara Khatun and another Vs. Mrs. Anowara Khatun and others, 1 BCR (1981) 126.

Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record- For the Petitioners.
Md. Nawab Ali, Advocate-on-Record- For Respondent No. 1.
Not represented- Respondent Nos. 2-28.

Civil Petition for leave to Appeal No. 1187 of 2004
(From the Judgment and order dated 21st May, 2003 passed by the High Court Division in Civil Revision No. 3728 of 1994)

Judgment

Md. Tafazzul Islam J. - This petition for leave to appeal arises out of the judgment and order dated 21.5.2003 of the High Court Division passed in Civil Revision No.3728 of 1994 discharging the Rule obtained against the judgment and decree dated 1.11.94 of the Subordinate Judge (now Joint District Judge), 2nd Court, Noakhali passed in Title Appeal No.14 of 1991 reversing those of dated 29.11.1990 of the Assistant Judge, 3rd Additional Court, Sadar, Noakhali passed in Title Suit No.515 of 1983 decreeing the suit.

2. The plaintiff-petitioners, along with others, filed the above Title Suit No.515 of 1983 for declaration that the two ewaznama deeds as described in the Kha schedule to the plaint are forged, fraudulent, void and not binding upon them on the averments that Golak Sarder and Ramgati Sarder were the owners in possession of the suit property to the extent of 12 annas and 4 annas respectively covering an area of 5061/4 acres and 168% acres of land in schedule K of the plaint; Golak died leaving wife named Gunamala and Ramgati died leaving only son Gobinda and D.S record of rights was rightly prepared in the names of Gunamala and Gobinda; after the death of Gunamala, Mahanti Bala and Basanti Kumari became her heirs as Ujjalmani and Kara Kumari, two other daughters of Golak, died issueless; the successors of Mahanti Bala and- Basanti Kumari are the plaintiffs who sold some of their lands to the defendants and vice versa; the petitioners after demarcation are now the owners in possession of 394 3/16 acres of land in 'Ka' schedule property and in the remaining portion the proforma defendant Nos.2-22 are the owners in possession; Enamul Hoque, the husband of defendant respondent No.1, concocted two ewaznama deeds collusively and fraudulently showing Monoranjan Dey and Chitta Ranjan Dey, who are fictitious and nonexistent persons, as the heirs of Gunamala; Gunamala had no such heirs named Monoranjan and Chittaranjan and they were also never in possession of the suit land; the two ewaznama deed are forged, fraudulent and collusive deeds and were made to grab the properties of the petitioners.

3. The defendant respondent No.1 contested the suit by filing written statement denying the material allegations made in the plaint contending, inter alia, that Golak Sardar being the owner of 12 annas share of the suit property died leaving wife Gunamala and 4 daughters namely Basanta Bala Dey. Harkumari Dey, Mohanta Bala Dey and Hemanta Bala Dey; Gunamala died leaving behind the above four daughters to inherit her property; Basanta Bala Dey had four sons namely Parbatti Charan Dey, Har Gobinda, Haralal and Motilal; Har Kumari died leaving two sons namely Monoranjan and Chitta Ranjan; Mahanta Bala had 4 sons; thus in all Gunamala had ten grand sons by three daughters to inherit her 5.06 acres of land each inheriting 50 5/8 decimals of land; Har Kumari was married to Hara Mohan t Dey and Chittan Ranjan and Monoranjan are their sons who used to work in Maitri Allumuniun Works at Maijdee; both of them executed and registered ewaznama deeds on 18.12.1981 and 22.12.1981 and delivered possession in exchange of 1.50 acres of land of defendant respondent No.1 at Char Manasha and she had been owning and possessing the suit land and those deeds are real and genuine. The learned Assistant Judge, after hearing, decreed the suit holding that Monoranjan and Chittaranjan are not the grand sons of Gunamala through her three daughters and the existence of Monoranjan and Chittaranjan has also not been established and accordingly the impugned ewazdeeds are forged, fraudulent and collusive. The defendant respondent No.1 then preferred Title Appeal No. 14 of 1991 and after hearing the learned Subordinate Judge (Now Joint District Judge) allowed the appeal. The plaintiff/petitioners then moved the High Court Division and obtained Rule and, after hearing, the High Court Division discharged the Rule.

4. We have heard the learned counsel and perused the records.

5. As it appears the High Court Division discharged the Rule holding that the plaintiff/ petitioners instituted the suit for a mere declaration that the disputed ewaznama deeds in favour of the defendant respondent No.1 is fraudulent and void whereas the respondent No.1 contested the suit contending that the suit as framed was not maintainable and the petitioners had no title and possession in the land covered by the alleged exchange deeds; in the case of Md. Jashimuddin (Kanchan) Vs. Md. Ali Ashraf reported in 11 BLD (AD) 101 it has been held that the plaintiff is not entitled to a simple declaration that the appellant's kabala is false and fraudulent without first establishing his title to the suit land; in the case of Munsur Ali Mallik Vs. Md. Nurul Hoque Mallik and others reported in 6 BCR, 1986 (AD) 58 the High Court Division dismissed the suit on the ground that the defendant in the suit having challenged the possession of the plaintiff, it was incumbent upon the plaintiff to file regular suit for declaration of title and confirmation of possession and the suit not maintainable. for his failure to ask consequential relief and in the case of Most Sahara Khatun and another Vs. Mrs. Anowara Khatun and others reported in 1 BCR (1981) 126 it has been held that before the plaintiff can be given a declaration that a decree or kabala is fraudulent and not binding upon her, it is not enough for her just to make out a prima facie case that she has right title and interest in the suit property but she has to prove that she had the legal character or the right to property she claimed and unless she could prove such legal character or right to property she could not be given any such declaratory relief and the facts and circumstances of the above reported cases being similar to the facts and circumstances of the present case, the principle laid down therein are applicable in the present case and accordingly the petitioners ought to have filed a suit for declaration of title and partition of the suit land.

6. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference.
7. The petition is dismissed.
Ed.

Raushan Akhter @ Moharaji Bibi and others Vs. Khandakar Mosharraf Hossian & Others

Case No: Civil Appeal No. 190 of 2000.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Ahsanullah Patwary,,

Citation: 1 ADC (2004) 100

Case Year: 2004

Appellant: Raushan Akhter @ Moharaji Bibi and others

Respondent: Khandakar Mosharraf Hossian & Others

Subject: Property Law,

Delivery Date: 2004-01-20

Raushan Akhter @ Moharaji Bibi and others Vs. Khandakar Mosharraf Hossian & Others
1 ADC (2004) 100

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J

Raushan Akhter @ Moharaji Bibi and others........Appellants
Vs.
Khandakar Mosharraf Hossian & Others .......Respondents

Judgment
January 20, 2004.

State Acquisition and Tenancy Act (XXVIII of 1951)
Section 89(4)

Thus a notice under section 89 of the State Acquisition and Tenancy Act has to be issued in the prescribed form intimating the transfer of a portion or share of such holding to the co sharer tenets to which the provisions of section 96 apply, giving particulars of the transfer in the prescribed form and under sub-section (5) there of the court, Revenue authority or the Registrar as the case may be shall serve the notice as aforesaid on the co sharer tenants. Section 96 (1) of the State Acquisition and Tenancy Act provides that if a portion of a holding of a raiyat is transferred, one or more co-sharer tenants of the holding may, within four months of the service of the notice given under section 89, or, if no notice has been served under section 89, with in four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves. …..(7)

A co sharer by purchase was entitled to pre-empt the transferred land by either filing an application under section 96 (1) of the State Acquisition and Tenancy Act within 4 months of the service of notice given under section 89 of the State Acquisition and Tenancy Act or if no notice has been served as aforesaid, within 4 months of the date of knowledge of the transfer. …. (8)

Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellants.
Ahsanullah Patwary, Advocate-on-Record-For the Respondents No. 1.
Not represented-Respondent Nos. 2-12.

Civil Appeal No. 190 of 2000.
(From the judgment and order dated 11th June 1998 passed by the High Court Division in Civil Revision No. 2588 of 1993).

Judgment

Mohammad Fazlul Karim J. - This appeal by leave at the instance of the pre-emptee is directed against the judgment and order of the High Court Division passed on 11.6.1998 in Civil Revision No. 2588 of 1993 making the rule absolute setting aside those dated 20.6.1993 of the Court of appeal below passed in Miscellaneous Appeal No.12 of 1989 affirming those dated 28.2.1989 passed by the Court of Subordinate Judge, Narsingdi in Preemption Miscellaneous Case No.28 of 1985.
2. The facts leading to the present appeal briefly are that the respondent No.1 as pre-emptor filed the above pre-emption case No. 28 of 1985 for preempting the land described in the schedule to the plaint on the allegations, inter alia, that one Abdul Gafur was the owner of the land of the case jute who sold some land to one Akram Uddin on 26.2.1949 who in turn sold 21 decimals of land to the appellants and his two brothers on 4.5.1949 and thus the appellants became a co sharer by purchase in the case jute. The said Akramuddin sold some other land of the case jote to one Habib Bhuiyan predecessor of Mizanur Rahman, Sukri Bibi an Akmulennessa and the heirs of the Akramuddin sold 21 decimals of land to Khandakar and the heirs of the Akramuddin sold 21 decimals of land to Khandakar Anwar Hossain, predecessor of the appellants by a deed of sale dated 12.3.1975. Further case of the respondent No.1 is that after completion of the registration of the said deed under section 60 of the Registration Act a notice under section 89 of the Date Acquisition and Tenancy Act was served on him on 28.1.1981 and that Khandakar Anwar Hossain being a stranger-purchaser to the case jute. Respondent No.1 as a co sharer by purchase, is entitled to pre-empt the said land.
3. The appellants contested the case by filing a joint written objection denying the material allegations. Their case is that the pre-emptor is not a co-sharer of the case jute and the case is bad for defect of parties and that the case is barred by limitation. Their further case is that the suit land is adjacent to the house of pre-emptor-respondent No.1 and from the very date of purchase the pre-emptee purchaser entered into possession of the case land and since then they are possessing the same by cultivating the case land openly and to the knowledge of others including the pre-emptor. Their further case is that pre-emptor knows about the transfer from the very beginning and he did not exercise his right of pre-emption within the prescribed period of limitation and as such preemption case is liable to be dismissed.
The learned Subordinate Court dismissed the case on ground of limitation. The Court of appeal below affirmed the same. The High Court Division made the rule absolute allowing the Miscellaneous Case.
4. Leave was granted in the appeal to consider that:
"the learned judge of the High Court Division Committed serious error in disturbing the concurrent finding of facts relating to limitation of filing preemption case since both the courts below with specific observations held that the pre-emption case was barred by limitation and the sale was within the knowledge of the pre-emptor and hence in exercise of revisional jurisdiction illegally interfered with the concurrent finding of the Courts below by the High Court Division. He further submits that both the Courts below gave specific observation and finding that the notice under section 89 (4) of the State Acquisition and Tenancy Act shown to have served is a subsequent creation for the purpose of filing pre-emption case and there remains variations in the document filed before the Court and both the Courts below held the same as fraudulent document but the said finding of facts have been interfered with by the High Court Division in revisional Jurisdiction which is not sustainable in law."
Mr. Mahbubey Alam, the learned counsel appearing for appellants submitted that the learned judge of the High Court Division committed serious error in disturbing the concurrent finding of fact relating to limitation of filing pre-emption case since both the Courts below with specific observations held that the preemption case was barred by limitation and the sale was with in the knowledge of the pre-emptor and hence in exercise of revisional jurisdiction interfering with the concurrent finding the High Court Division committed error in the decision. The learned Counsel further submits that the learned Judge of the High Court Division failed to consider that trial court and the court of appeal below gave specific observation finding that the notice under section 89 (4) of the State Acquisition and Tenancy Act shown to have served is a subsequent creation for the purpose of filing pre-emption case and there remains variation in the documents filed before the Court and both the Courts below held that same as fraudulent document but the said finding of facts have been interfered with by the High Court Division in revisional jurisdiction which is not sustainable in law.
5. It appears form the impugned judgment of the trial Court that the trial Court held the case to be barred by limitation disbelieving the knowledge of the pre-emptor, as according to it, it found discrepancy as to date bearing in the notice under section 89 (4) of the State Acquisition and Tenancy Act with the date of service of service thereon. The Court appeal below, however, concurred with the finding as to limitation but illegally relied upon the statement of the learned Advocate in Court at the time of argument together with the fact that the respondent No.1 had filed an application under order 59 rule 1 and 2 of the code of the Civil Procedure against the appellant not to change he nature and character of the suit land and not to dispose of the suit pending disposal of the case. Thus erroneously arrived at a finding that he respondent No.1 had knowledge of the transfer together with the notice under section 89 (4) of the State Acquisition and Tenancy Act. The High Court Division, however, allowed the pre-emption case holding that the notice under section 89 (4) of the State Acquisition and Tenancy Act was issued on 11.1.1981 and the respondent No.1 filed the Miscellaneous Case on 24.3.1981 which is within the period of limitation prescribed under lection 96(1) of the State Acquisition and tenancy Act and that though the purchase was dated 2.5.1975 but the same was entered into volume under section 60 of the Registration Act on 24.3.1981 and as such the case is not barred by limitation under section 89 (4) of the State Acquisition and Tenancy Act.
Section 89 (4) of the Act reads as under:
89(4). If the transfer of a portion or share of such a holding be one to which the provisions of section 96 apply, there shall be filed notices giving particulars of the transfer in the Described form together with process fees prescribed for the service there of on all the co-sharer tenants of the said holding who are not parties to the transfer and for affixing a copy here of in the office of the Registering Officer or the Court house or the Office of the Revenue Authority, as the case may be."
6. Thus every transfer of a holding or a portion or share of it belonging to a Raiyat shall be made by a registered document under the Registration Act and the deed of transfer must be accompanied by a notice giving particulars of the transfer together with deposit of the process fee for dispatch of the notice to the Revenue Officer and in case of transfer of a portion of a share or share of a holding having co-sharers, there must be filed in the Registration office notices bearing particulars of the transfer together with the process fee for service of such notices on all co-sharers who are not parties to he transfer and also for affixing copy of notice to the Registration office and the Registering officer shall not accept the document for registration unless the above condition are fulfilled.
7. Thus a notice under section 89 of the State Acquisition and Tenancy Act has to be issued in the prescribed form intimating the transfer of a portion or share of such holding to the co sharer tenets to which the provisions of section 96 apply, giving particulars of the transfer in the prescribed form and under sub-section (5) there of the court, Revenue authority or the Registrar as the case may be shall serve the notice as aforesaid on the co sharer tenants. Section 96 (1) of the State Acquisition and Tenancy Act provides that if a portion of a holding of a raiyat is transferred, one or more co-sharer tenants of the holding may, within four months of the service of the notice given under section 89, or, if no notice has been served under section 89, with in four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves.
8. In the instant case, admittedly, the respondent No. 1 being "a co sharer by purchase was entitled to pre-empt the transferred land by either filing an application under section 96 (1) of the State Acquisition and Tenancy Act within 4 months of the service of notice given under section 89 of the State Acquisition and Tenancy Act or if no notice has been served as aforesaid, with in 4 months of the date of knowledge of the transfer."
9. In view of the above, the respondent having filed the case within 4 month from the date of issuance of the notice dated 21.1.1981 was entitled to the pre-empt case land inasmuch as the issuance of the notice dated 21.1.1981 having the presumption that the official has been done regularly in the absence of any evidence to the contrary carry a presumption of regularity to hold that the notice was issued on 21.1.1981.
On scrutiny there being no substance in the submissions of the learned Counsel for the appellants for the ground on which the leave was granted this appeal is accordingly dismissed without any order as to costs.
Ed.

Rawshan Ali and ors Vs. Judge, Survey Tribunal, Dhaka and ors

Case No: WRIT PETITION NO 12043 OF 2015

Judge: Naima Haider, J

Court: High Court Division,

Advocate: Mr. Tajul Islam Miajee, Advocate,

Citation: 2019(2) LNJ

Case Year: 2017

Appellant: Rawshan Ali and others

Respondent: Judge, Survey Tribunal, Dhaka Metropolitan City, Dhaka and others

Subject: State Acquisition and Tenancy Act,1990

Delivery Date: 2020-03-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Naima Haider, J

And

Abu Taher Md. Saifur Rahman,J

Judgment on

18.10.2017

}

Rawshan Ali and others

. . . Petitioners

-Versus-

Judge, Survey Tribunal, Dhaka Metropolitan City, Dhaka and others

. . . Respondents

State Acquisition and Tenancy Act,1990 (XXVIII of 1951)

Section 145 D

Section 145 D of the SAT Act sets out the powers that can be exercised by Land Survey Tribunal. Under Section 145D of the SAT Act, the Land Survey Tribunal shall exercise the powers and procedure under the Code of Civil Procedure, 1908. A Land Survey Tribunal, therefore, can exercise extensive powers in determining the issue(s) before it. .....(14)

State Acquisition and Tenancy Act, 1990 (XXVIII of 1951)

Section 145 D

For the Land Survey Tribunal to declare any particular record of right to be incorrect, it must be satisfied that the person initiating the proceeding for correction of the record-of-right has a right to the land in question. If the person initiating the proceeding has a right to the land, then the person in whose favour the land was recorded, does not have a right to the land. If Land Survey Tribunal does not have the power to review the title deeds, just the way a competent Civil Court does in a suit for declaration of title, then Land Survey Tribunal cannot hold that a particular record of right is incorrect and direct the concerned authorities to correct the record of rights. To hold otherwise would be to negative the powers conferred by the SAT Act. .....(16)

Constitution of Bangladesh, 1972

Article 102

This Division is adjudicating over the instant matter in exercise of powers under Article 102 of the Constitution. This Division is not adjudicating the matter under any statutory power. While exercising the powers under Article 102 of the Constitution, High Court Division has certain restrictions/limitations. For instance, High Court Division cannot adjudicate factual disputes. However, when this Division exercises appellate power conferred by a statute, this Division presides as an appellate Court and in such cases, this Division is required to review all factual issues, disputed or otherwise. For instance, when this Division hears Customs Appeals under the Customs Act 1969, this Division can call for the records to review the authenticity of documents. However, when this Division hears writ petitions arising out of Customs Act 1969, this Division cannot exercise such powers. If the High Court Division is to act as an appellate Court, the statue must expressly provide; this is because appeals are statutory rights. In the instant case, the matter before this Division is not in the form of appeal. The SAT Act does not contain any provision which empowers the High Court Division to act as an appellate Court. The matter before this Division is in the form of writ petition. That being the position, we are of the view that in exercising the powers under Article 102 of the Constitution, this Division cannot automatically become an appellate Court and exercise all powers that can be exercised by an appellate Court. This Division must adjudicate the matter under Article 102 of the Constitution and the adjudication process is subject to certain limitations. This Division, in writ petitions arising from the judgments passed by the Land Survey Tribunal, cannot deal with disputed questions of facts; this Division will adjudicate the matter to understand whether there has been any violation of law or whether there is an error on the face of the record. There are disputed questions of facts in the instant writ petition. Furthermore, there was finding of forgery by a competent Court. Such finding was certainly adverse to the petitioners’ position. This Division also takes the view that the judgment passed, impugned by the petitioners, was not legally erroneous. Accordingly, this Division takes the view that there is no merit in the Rule. .....(20 and 21)

Mr. Tajul Islam Miajee, Advocate

. . . for the Petitioners

Mr. Md. Ahia, Advocate

. . . for the Respondents

JUDGMENT

Naima Haider, J. In this Application under Article 102 of the Constitution, Rule Nisi was issued in the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned judgment and decree dated 26.10.2015 (decree signed on 01.11.2015) passed by the learned Judge of the Land Survey Tribunal, Dhaka Metropolitan City in Land Survey Tribunal Case No. 2012 of 2010 (Annexure-B & B-1) should not be declared to have been passed without any lawful authority and is of no legal effect and/ or pass such other or further order or orders as to this Court may seem fit and proper.

2. This writ petition invites us to primarily deal with question of law. The facts, leading to filing of the instant writ petition are summarized very briefly since these are not strictly relevant for disposal of the instant writ.

3. The relevant facts, in brief, are as follows: the dispute arose in relation to land measuring 0.1744 acres pertaining to C.S. Khatian No. 15307, Plot No. 370 (“the Land”). The petitioners contend that the Land belongs to them. The petitioners provide elaborate details regarding the devolution of the Land in their favour. The record of right of the Land has been prepared in favour of the petitioners. The respondent Nos. 2-8 initiated a proceeding before the Land Survey Tribunal, Dhaka Metropolitan City for correction of the record of right. The Land Survey Tribunal, Dhaka Metropolitan City- respondent No.1 passed judgment and decree in favour of the writ respondent Nos. 2-8. The respondent Nos.2-8 tried to dispossess the petitioners from the Land after obtaining the judgment and decree from the respondent No.1. Being aggrieved, the petitioners moved this Division and obtained the instant Rule.

4. The petitioners filed a Supplementary Affidavit annexing certain documents, which were not annexed to the writ petition.

5. Affidavit in Opposition was not filed. However, the respondent Nos. 2-8 filed an application for vacating the interim order passed at the time of issuance of the Rule. The said application is comprehensive and controverts the contentions made in the writ petition. We are thus inclined to treat the said application as an Affidavit in Opposition.

6. The learned Counsel for the petitioners, taking us through the writ petition, the Supplementary Affidavit and the documents annexed, submits that the respondent No.1, without examining the documents filed by the writ petitioners passed the impugned decree and therefore, the same is liable to be set aside. The learned Counsel further submits that the respondent No.1 did not find that the title of the Land belongs to the respondent Nos. 2-8 and without such findings, passed the impugned judgment and decree. The learned Counsel further submits that the respondent Nos. 2-8 filed a Suit being Other Class Suit No. 126 of 2011 for declaration of the title of the Land; the respondent No.1 ought not to have proceeded with the matter till disposal of the said proceeding and therefore, the impugned judgment and decree is without lawful authority and of no legal effect. The learned Counsel also submits that it was not proper for the respondent No.1 to comment on whether the title deeds were fraudulent and pass the judgment on that basis; the respondent No.1 in doing so committed illegality for which the instant Rule should be made absolute. On these counts, among others, the learned Counsel submits that the Rule should be made absolute.

7. The learned Counsel for the respondent Nos. 2-8 opposes the Rule. He submits that the Other Class Suit No. 126 of 2011 was not filed seeking declaration of title of the Land. The learned Counsel submits that the judgment and decree, impugned by the petitioners, was passed by a competent Court, after examining the evidence and therefore, this Division should not interfere. On these, among other counts, the learned Counsel submits that the Rule should be discharged.

8. We have perused the pleadings and the documents annexed therein. We have also heard the submissions of the learned Counsels at length.

9. The respondent No.1 passed the judgment and decree primarily on the ground that the documents were forged. The relevant part of the impugned judgment is set out below for ease of reference:

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10. The respondent No.1 did not merely state that there was forgery. The respondent No.1 gave elaborate explanation for the conclusion. It was very well reasoned. The issue raised by the learned Counsel for the petitioners is that the respondent No.1 is not empowered to review the deeds. The question is whether the learned Counsel is correct.

11. Under State Acquisition and Tenancy Act 1950 (“the SAT Act”), the Land Survey Tribunals have been empowered to deal with very specific issues/cases. Section 145A (4) of the SAT Act provides:

No suit other than the suits arising out of the final publication of the last revised record of rights prepared under section 144 shall lie in the Land Survey Tribunal.

12. Land Survey Tribunals have curtailed the powers of civil Courts. This is because of Section 145A(5) of the SAT Act which provides: “If any suit arising out of the final publication of the last revised record-of-rights prepared under section 144 is instituted in any civil court before the establishment of the Land Survey Tribunal under this section, such suit shall stand transferred to the Tribunal as soon as it is established.”

13. Therefore, from the reading of Sections 145A(4) and 145A(5) of the SAT Act, it is clear that Land Survey Tribunals are special Courts entrusted to deal with very specific issues/cases.

14. Section 145D of the SAT Act sets out the powers that can be exercised by Land Survey Tribunal. Under Section 145D of the SAT Act, the Land Survey Tribunal shall exercise the powers and procedure under the Code of Civil Procedure, 1908. A Land Survey Tribunal, therefore, can exercise extensive powers in determining the issue(s) before it.

15. After adjudication, the Land Survey Tribunal can, under Section 145A(8) of the SAT Act “declare the impugned record-of-rights to be incorrect and further direct the concerned office to correct the record-of-rights in accordance with its decision, and may also pass such other order as may be necessary” (emphasis added by us)

16. Now, for the Land Survey Tribunal to declare any particular record of right to be incorrect, it must be satisfied that the person initiating the proceeding for correction of the record-of-right has a right to the land in question. If the person initiating the proceeding has a right to the land, then the person in whose favour the land was recorded, does not have a right to the land. If Land Survey Tribunal does not have the power to review the title deeds, just the way a competent Civil Court does in a suit for declaration of title, then Land Survey Tribunal cannot hold that a particular record of right is incorrect and direct the concerned authorities to correct the record of rights. To hold otherwise would be to negative the powers conferred by the SAT Act. Therefore, we are unable to agree with the submission of the learned Counsel for the petitioner that the respondent No.1 lacks jurisdiction to comment/conclude that deeds were fraudulent.

17. We have perused the impugned judgment passed by the respondent No.1 in Land Survey Tribunal Case No. 2012 of 2010. We have noted that the respondent No.1 in passing the judgment took account of the depositions, the documents exhibited and the pleadings filed by the parties. Therefore, do not agree with the submission of the learned Counsel for the petitioners that the respondent No.1 passed the judgment without considering the documents filed.

18. The learned Counsel for the petitioners points out that the respondent No.1 passed the impugned judgment without “properly examining the S.A and R.S. Khatian and the Kabala Deeds”. The allegation is completely vague. The learned Counsel for the petitioners could not clarify what is actually meant by “properly examining”.

19. The learned Counsel for the petitioners submits that the petitioners filed the instant writ petition because there is no forum to file appeal against the impugned judgment. That being the position, this Division should, in dealing with writ petitions arising from the judgments passed by Land Survey Tribunal, act as appellate Court. According to the learned Counsel, this Division should examine all the documents/records afresh. We beg to disagree with the learned Counsel.

21. This Division is adjudicating over the instant matter in exercise of powers under Article 102 of the Constitution. This Division is not adjudicating the matter under any statutory power. While exercising the powers under Article 102 of the Constitution, High Court Division has certain restrictions/limitations. For instance, High Court Division cannot adjudicate factual disputes. However, when this Division exercises appellate power conferred by a statute, this Division presides as an appellate Court and in such cases, this Division is required to review all factual issues, disputed or otherwise. For instance, when this Division hears Customs Appeals under the Customs Act 1969, this Division can call for the records to review the authenticity of documents. However, when this Division hears writ petitions arising out of Customs Act 1969, this Division cannot exercise such powers. If the High Court Division is to act as an appellate Court, the statue must expressly provide; this is because appeals are statutory rights. In the instant case, the matter before this Division is not in the form of appeal. The SAT Act does not contain any provision which empowers the High Court Division to act as an appellate Court. The matter before this Division is in the form of writ petition. That being the position, we are of the view that in exercising the powers under Article 102 of the Constitution, this Division cannot automatically become an appellate Court and exercise all powers that can be exercised by an appellate Court. This Division must adjudicate the matter under Article 102 of the Constitution and the adjudication process is subject to certain limitations. This Division, in writ petitions arising from the judgments passed by the Land Survey Tribunal, cannot deal with disputed questions of facts; this Division will adjudicate the matter to understand whether there has been any violation of law or whether there is an error on the face of the record.

22. Having gone through the pleadings, documents annexed and after hearing the submissions of the learned Counsels at length, this Division is of the view that there are disputed questions of facts in the instant writ petition. Furthermore, there was finding of forgery by a competent Court. Such finding was certainly adverse to the petitioners’ position. This Division also takes the view that the judgment passed, impugned by the petitioners, was not legally erroneous. Accordingly, this Division takes the view that there is no merit in the Rule.

23. The Rule is thus discharged, without any order as to costs.

24. Communicate the Judgment and Order at once for immediate compliance.

Ed.

WRIT PETITION NO 12043 OF 2015

Rayna Begum and others Vs. Md. Marufuddin Ahmed and others

Case No: Civil Petition for Leave to Appeal No.1500 of 2007.

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Abdul Wadud Bhuiyan,,

Citation: VI ADC (2009) 785

Case Year: 2009

Appellant: Rayna Begum and others

Respondent: Md. Marufuddin Ahmed and others

Subject: Property Law,

Delivery Date: 2008-06-17

Rayna Begum and others Vs. Md. Marufuddin Ahmed and others
VI ADC (2009) 785

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J

Rayna Begum and others............Petitioners
Vs.
Md. Marufuddin Ahmed and others ..........Respondents

Judgment
June 17, 2008.

For permanent injunction restraining the defendant-respondent No. 1 from evicting the plaintiff-petitioners from any part of the suit land. ….. (2)

It appears that the respondent filed a pre-emption case which was allowed ex parte against the present petitioners who fought upto Appellate Division and lost. Thereafter the present petitioners have filed the suit for declaration that the ex parte judgment and order dated 06.09.1999 obtained in the pre-emption case is illegal, null, void, inoperative, fraudulent and not binding upon them. In that suit they made the prayer for temporary injunction. The petitioners are yet to get the declaration. Admittedly they challenged the selfsame judgment and order earlier and lost upto the Appellate Division. Therefore, the High Court Division has rightly set aside the judgment and order of the courts below as the petitioners are not entitled to such and order in a suit so framed. …. (13)

Lawyers involved:
Abdul Wadud Bhuiyan, Senior Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioners.
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For Respondents No. 1.
Not represented-Respondent Nos. 2-15.

Civil Petition for Leave to Appeal No.1500 of 2007.
(From the judgment and order dated 02.08.2007 passed by the High Court Division in Civil Revision No. 4795 of 2005).

Judgment

Md. Abdul Matin J. - This petition for leave to appeal is directed against the judgment and order dated 02.08.2007 passed by the High Court Division in Civil Revision No. 4795 of 2005 making the Rule absolute and setting aside the judgment and order dated 05.09.2005 passed by the learned Joint District Judge, 3rd Court, Sylhet in Miscellaneous Appeal No. 84 of 2004 dismissing the appeal and affirming the judgment and order dated 21.08.2004 passed by the learned Senior Assistant Judge, Beanibazar, Sylhet in Title Suit No.51 of 2004 granting and order of temporary injunction under order 39 Rule 1 of the Code of Civil Procedure.
2. The facts, in short, are that the plaintiff-petitioner Nos.1-4 filed Title Suit No. 51 of 2004 along with an application for temporary injunction against the defendant-respondent No.1 on 06.06.2004. The suit was for declaration that the judgment and order dated 06.09.1999 obtained by the defendant-respondent in Miscellaneous (Pre-emption) Case No. 21 of 1998 is illegal, null and void, inoperative, fraudulent, unexecutable and liable to be set aside and the plaintiffs-petitioner Nos.1-4 and pro-forma-respondent No.15 are not bound by that judgment and also for permanent injunction restraining the defendant-resplendent No.1 from evicting the plaintiff- petitioners from any part of suit land by putting the said judgment and order in execution.

3. The averments made in the plaint of the suit as well as the application for temporary injunction in brief was that though the defendant-respondent No.1 is a stranger yet he obtained an ex parte judgment and order in Miscellaneous (Pre-emption) Case No.21 of 1998 on 06.09.1999 challenging a deed of gift dated 04.01.1998 which was not maintainable under section 96(10) (a) of the State Acquisition and Tenancy Act, 1950. When the plaintiff-petitioner Nos.1-4 and pro forma respondent No.15 came to learn about the said ex parte order they filed Miscellaneous Case No. 27 of 1999 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said order and to restore the case to its original file and number but the same was rejected. They pursued the matter upto the Appellate Division but could not succeed and the said order was upheld upto the Appellate Division by judgment and order dated 17.04.2004 passed in Civil Petition for Leave to Appeal No.1040 of 2003 and then the defendant respondent was taking step hurriedly to take over possession of suit land in execution and as such the plaintiff-petitioners were constrained to file the application for granting temporary injunction to restrain the defendant-respondent No.1 from evicting the plaintiff-petitioners from any part of the suit land by putting the illegal ex-parte judgment and order in execution.

4. In the plaint it was stated, inter alia, that the ex parte judgment and order dated 06.09.1999 obtained by defendant No.1 in Misc. (Pre) Case No. 21 of 1998 in respect of the land described in the schedule to the plaint, which is situated in Mouza Kunagram, under P.S. Beanibazar, Dist.- Sylhet, is against the provision of the sec. 96(10) (a) of the E.B.S.A. and T. Act and as such illegal, null and void, inoperative, fraudulent unexecutable and liable to be set aside and the plaintiffs are not bound by the said illegal ex parte order. The plaintiffs also prayed for permanent injunction restraining defendant No.1 from evicting the plaintiffs from any part of the suit land by putting the illegal ex parte order in execution.

5. It was also stated that the land described in schedule to the plaint belonged to defendant No.2 Dr. Shafar Uddin Ahmed, his mother Mosina Bibi and Kamar Uddin (father of the plaintiffs and proforma-defendant No.16 Sufia Begum) on the basis of settlement, purchase and gifts. During the last survey settlement operation the suit land was recorded in their names jointly and was finally published without any objection from any quarter. The item No.1 of the suit land i.e. S.S. Plot No.1121 comprises an area of 0.56 decimals of land which is the paternal homestead of the plaintiff-proforma defendant Nos.2 and 16 and was recorded in the names of proforma-defendant No.2 Dr. Shafar Uddin Ahamed, his mother Mosina Bibi and Kamar Uddin in equal share in final khatian No.414 of Mouza Kunagram. Similarly item No.2 of the suit land i.e. S.S. plot No.1128 was recorded in their names in equal share as bagan (orchard land) in the final khatian No.200 of Mouza Kunagram. Thereafter Mosina Bibi died leaving son proforma-defendant No.2 and he became the owner of 2/3rd share and the remaining 1/3rd share belonged to Kamar Uddin, father of the plaintiffs and proforma-defendant No.16. Karam Uddin was the foster brother of defendant No.2 Dr. Shafar Uddin Ahmed and they were in joint mess and Kamar Uddin was managing the ejmali family property as proforma defendant No.2, Dr. Shafar Uddin Ahmed has been residing in Sylhet town by purchasing a Bashabari for the sake of his profession.

6. It was also stated that Dr. Safar Uddin Ahmed and Kamar Uddin were very much close and affectionate to each other, just like full brothers. Dr. Shafar Uddin Ahmed is permanently residing in Sylhet town and in case of any necessity and social functions he visits the village home. The entire homestead and all other family properties were under the control and management of Kamar Uddin and Dr. Shafar Uddin Ahmed was not at all conversant with the family properties. Although Kamar Uddin was in specific possession of the suit land and other lands but after the death of their mother Mosina Bibi both the brothers decided to partition the suit land amicably for further convenience. Accordingly a registered partition deed was executed on 19.03.1988. As the share of Kamar Uddin in the homestead is only 0.18 decimals Dr. Shafar Uddin Ahmed out of love and affection gave another 0.06 decimals land from his share to Kamar Uddin for his convenience. Thus according to the partition deed the share of Dr. Shafar Uddin Ahmed is 0.32 decimals and that of Kamar Uddin is 0.24 decimal in the homestead land. Although a formal deed of partition was executed between the, two brothers but the suit land was never demarcated or divided on the spot according to the said partition deed and remained as it is and Kamar Uddin was is actual possession of the homestead land and other lands as before.

7. It was further stated that Kamar Uddin died in the year 1993 leaving one son Mostaqur Rahman and 5 daughters plaintiffs and proforma-defendant No.16 as his legal heirs. After the death of Kamar Uddin his son and daughters have been possession the entire homestead like their father and Dr. Shafar Uddin Ahmed is residing in Sylhet town, Dr. Shafar Uddin Ahmed had no issue and he had no other near relatives except the heirs of Kamar Uddin. So he loved the plaintiffs and pro-forma-defendant No. 16 as his full brother's daughters and out of love and affection Dr. Shafar Uddin Ahmed gifted the suit land to the plaintiffs and proforma-defendant No.16 by a registered deed of gift dated 21st Poush 1404 B.S. corresponding to 04.01.1998 and delivered formal possession of the suit land as the plaintiffs and proforma-defendant No. 16 and their brother Mostaqur Rahman were in physical possession of the suit land. As the Suit land was never demarcated and separated on the spot and as there was no specific boundary of the share of Dr. Shafar Uddin Ahmed, so in the deed of gift he described the boundaries of both the plots and identified the gifted land stating that excluding your share my share 0.32 decimal in plot No. 1121 and 0.12 decimal in plot No. 1128 is gifted.

8. It was also stated that the defendant No.1 is a stranger, he is not a co-sharer in the holding Nos. 414 or 200. But after execution and registration of the gift deed dated 14.01.1998, the defendant No.1 Md. Maruf Uddin Ahmed filed the aforesaid Misc. (Pre) Case No. 21 of 1998 falsely claiming that although the suit land was transferred by a deed of gift but actually it is a sale deed and as co-sharer he is entitled to pre-empt the suit land and by suppressing notice managed to obtain an ex parte judgment and order on 06.09.1999. But as a matter of fact defendant No. 1 is not a co-sharer in the khatians which stand in the names of Dr. Shafar Uddin Ahmed, Mosina Bibi and Kamar Uddin (father of the plaintiff and proforma-defendant No. 16). Moreover as the plaintiffs and proforma-defendant No.16 are co-sharers by inheritance in the tenancy the said preemption case No.21 of 1996 was barred under section 96(10) (a) of the E.B.S.A & T. Act. But the defendant No.1 suppressing all those facts and making false statements in the court obtained the said ex-parte judgment and order. As the Misc. (Pre) Case No. 21 of 1998 was barred by law the said ex-pare judgment and order is illegal and liable to be set aside.

9. It was further stated that in the aforesaid Misc. (Per) No.21 of 1998 the defendant No.1 stated that once upon a time his grandfather Kanu Miah and his brothers Irfan Ali, Nasai Miah and his step brother's son Yakub AH purchased the suit land and other lands. So his grandfather Kanu Miah was a co-sharer in the land purchased by those 4 persons and as the purchasers did not partition their purchased land, so as successive heir of Kanu Miah he is a co-sharer in the suit land. It is beyond imagination that after 2 generations the properties purchased by his grandfather Kanu Miah along with other persons are still joint properties. As a matter of fact during the last survey settlement operation the land purchased by Kanu Miah was duly recorded in the name of his heirs i.e. Shajjad Ali (father of defendant No.1) and others in plot No. 1125 which is their homestead, in plot No.1126 and in D.P. Khatian No.23 of 1972 and final Khatian No. 236 and they have been possessing those land specifically by paying rent to the Government separately and they have no connection with the land of Khatian Nos. 414 and 200 which are in the names of proforma-defendant No. 2 Dr. Shafar Uddin Ahmed, Mosina Bibi and Kamaruddin and they had been holding and possessing the same specifically by paying rent to the Government separately. According to the provision of sec. 96 (1) E.B.S.A. and T. Act, only co-sharer of the holding and not the previous owner whose name is not in the holding can claim preemption as co sharers. As the name of defendant No.1 or his father or grandfather is not in the Khatian the defendant No.1 is not a co-sharer in the holding and he had no locus standi to file the aforesaid Misc. (Pre) Case No. 21 of 1998. Moreover the name of Kamar Uddin was duly recorded in Khatian Nos. 414 and 200. So the plaintiffs and proforma-defendant No.16 who are daughters of Kamar Uddin are co-sharers by inheritance in the tenancy and the aforesaid pre-case was not maintainable against them. But as ill lack would have it the plaintiffs and proforma-defendant No. 16 could not file any written objection in Misc. (Pre) Case No.21 of 1998 stating the actual facts and taking the advantage of the absence of the plaintiffs and proforma-defendant No.11 the defendant No.1 had obtained the ex-parte judgment and order dated 06.09.1999 by practicing fraud upon the court.

10. The defendant-respondent contested the same by filing a written objection contending, inter-alia, that the suit as well as the application for temporary injunction is not maintainable and that the plaintiffs-petitioners is not maintainable and that the plaintiffs-petitioners are strangers in the suit jote and the defendant-respondent No.1 is a co-sharer by inheritance in the case jote, and that the deed in question dated 04.01.1998 is an not and out sale deed in the garb of deed of gift as there was no relation between the doner and donee. It was also stated that the predecessor of plaintiffs, Kamaruddin had no right, title and interest in the case land and that the defendant-respondent No.1 had filed Miscellaneous (Preemption) Case No. 21 of 1998 against the plaintiff-petitioners and the same allowed by judgment and order dated 06.09.1999 within their knowledge against which a Miscellaneous Case No. 27 of 1999 was filed under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said order and to restore the pre-emption case in its original umber but the same was rejected on contest on 18.07.2001 against which the plaintiff-opposite parties preferred Miscellaneous Appeal No.47 of 2001 which was also disallowed on contest on 03.06.2002 and thereafter the plaintiffs-petitioners filed Civil Revision No. 3438 of 2002 in the High Court Division against the order dated 03.06.2002 and after hearing both the parties the Rule was discharged on 12.03.2003 upholding the judgments and orders given by the courts below. Thereafter, the present plaintiff-petitioners preferred Civil Petition for Leave to Appeal No. 1040 of 2003 in the Appellate Division Against the judgment and order dated 12.03.2003 passed by the High Court Division and after hearing both the parties in contest the same was dismissed on 17.04.2004 upholding the ex parte judgment and order dated 06.09.1999 of the trial court. It was also stated that in that way when the plaintiff-petitioners have lost upto Appellate Division on contest then they filed the present suit for setting aside the judgment and order dated 06.09.1999 and to stop the execution process by was of temporary injunction only to deprive the defendant No.1 from getting the fruit of his case. It was further stated that the plaintiffs have no legal right to challenge the said judgment and order and no judicial proceeding can be stopped or restrain by was of temporary injunction when the same was upheld on contest by the apex court of the country and as such the application for temporary injunction is liable to be rejected.

11. The trial Court allowed the prayer for temporary injunction and the same was affirmed by the appellate court but on revision the High Court Division set aside the judgment and order of both the courts below and hence this petition for lave to appeal.

12. Heard the learned Counsel and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

13. It appears that the respondent filed a pre-emption case which was allowed ex parte against the present petitioners who fought upto Appellate Division and lost. Thereafter the present petitioners have filed the suit for declaration that the ex parte judgment and order dated 06.09.1999 obtained in the pre-emption case is illegal, null, void, inoperative, fraudulent and not binding upon them. In that suit they made the prayer for temporary injunction. The petitioners are yet to get the declaration. Admittedly they challenged the selfsame judgment and order earlier and lost upto the Appellate Division. Therefore, the High Court Division has rightly set aside the judgment and order of the courts below as the petitioners are not entitled to such and order in a suit so framed.

We find no merit in this petition which is accordingly dismissed.
Ed.

Razia Sultana and others Vs. Mir Shahinul Islam and others 2016 (2) LNJ 151

Case No: Civil Revision No. 1558 of 2014

Judge: Soumendra Sarker,

Court: High Court Division,,

Advocate: Mr. M.G.H. Ruhullah,Mr. N. A. M. Abdur Razzaque,Mr. Azam Khan,,

Citation: 2016 (2) LNJ 151

Case Year: 2016

Appellant: Razia Sultana and others

Respondent: Mir Shahinul Islam and others

Subject: Civil Law,

Delivery Date: 2016-05-26

Razia Sultana and others Vs. Mir Shahinul Islam and others 2016 (2) LNJ 151

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J
And
Md. Ashraful Kamal, J.
Judgment on
26.05.2016

}
}
}
}
}

Razia Sultana and another
. . . Petitioner
-Versus-
Mir Shahinul Islam and others
. . . Opposite Parties

Code of Civil Procedure (V of 1908)
Section 11
Order VII, Rule 11

It is apparent from the face of the papers that the matter in issues are not at all identical with the former suit and it is not directly or substantially in issues which has been heard and decided finally by a competent court of law. Apart from this; it transpires that the parties to the suits are not same. Beside this; it is a decided matter that the question of res-judicata as well as the question of limitation is a mixed question of facts and laws which is required to be adjudicated and decided during trial of the original suit. The learned trial Judge with regard to this; relying upon the decision of our Apex Court reported in 20 BLD(AD) 82 rightly held that there is no scope at the present stage to entertain such application under Order VII, rule 11 of the Code of Civil Procedure. . . . (17)

Civil Revision No. 1558 of 2014
Mr. M.G.H. Ruhullah, Advocate
. . . For the Petitioners
Mr. N. A. M. Abdur Razzaque with
Mr. Azam Khan, Advocate
. . . For the Opposite Parties

JUDGMENT

Soumendra Sarker, J:
The Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 18.11.2013 passed by the learned Joint District Judge, 5^th Court, Dhaka, in Title Suit No.201 of 2013 rejecting the application filed by the defendants No. 1-3 under Order VII, rule 11 of the Code of Civil Procedure should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

The facts leading to the issuance of the Rule in a nutshell can be stated thus that the present opposite party No.1 as plaintiff instituted the original Title Suit being No.201 of 2013 in the Court of learned Joint District Judge, 5^th Court, Dhaka for declaration of title and recovery of khash possession in the suit property contending inter alia that the disputed property had been owned and possessed by the plaintiff in his exclusive 16 annas share. In the disputed land there exist 04(four) shops of the plaintiff in which the tenants are one Md. Shafiullah in shop No. 1 and in shop No.2 the other tenant was one Monjur Mia and the shops No.3 and 4 respectively were possessed by the plaintiff’s tenants Manju Mia and Rafique Mia. The defendants No. 1-3 claiming the property as of their own from their predecessor-in-interest Dr. Sirajul Islam. The remaining defendants No. 4-8 are also claiming title in the disputed property on the basis of their papers. The further case of the plaintiff is such that the defendants to the suit denying the plaintiff’s title dispossessed the plaintiff from the suit property including his shops on 03.12.2009. The defendant’s claim in the disputed property on the basis of waqf is baseless, at which the title of the plaintiff has been clouded. To dispel that cloud the plaintiff instituted the original suit for declaration of the title and recovery of khash possession.
The contrary case of the defendants No.1-3 in short is thus that the plaintiff to the suit having no manner of right, title, interest and possession in the disputed property on the basis of false allegation filed the original suit and the defendants had been owning and possessing the disputed properties including the shops therein in their own interest and knowledge of all from the very beginning. The further case of the defendants is such that the plaintiff’s suit is barred by the principle of res-judicata as for the same suit-premises earlier a Title Suit being No.158 of 2010 have been filed against the same parties and the earlier suit have been dismissed on contest vide judgment and decree dated 31.07.2012.
During pendency of this suit the defendant-petitioners filed an application under Order VII, rule 11 of the Code of Civil Procedure before the trial court for rejection of the plaint on the ground that in respect of the self-same suit properties earlier the plaintiff in the 3^rd court of Assistant Judge, Dhaka filed a Title Suit being No.158 of 2010 and in that suit the plaintiff have failed to establish his case and also failed to prove his right, title and possession in the disputed premises. As a result of which the learned Assistant Judge, 3^rd Court, Dhaka by his judgment and dismissal decree dated 31.07.2012 dismissed the suit on contest and as such the present suit is not tenable in the eye of law which is barred by the principle of res-judicata.
Against the aforesaid application for rejection of the plaint the plaintiff-opposite party filed a written objection on the ground that the application for rejection of the plaint is liable to be rejected inasmuch as there is no scope to entertain the said application under VII, rule 11 of the Code of Civil Procedure. The plaintiff-opposite parties in their written objection specifically contended that the principle of res-judicata is not applicable in the instant case and the defendants out of ill-motive only to harass the plaintiff have preferred such application for rejection of plaint.
The learned trial court viz. the learned Joint District Judge, 5^th Court, Dhaka by the impugned judgment and order dated 18.11.2013 hearing the parties to the suit rejected the application under Order VII, rule 11 of the Code of Civil Procedure.
Being aggrieved by and dissatisfied with the impugned judgment and order the defendant-petitioners have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.
Mr. M.G.H. Ruhullah the learned Advocate appeared on behalf of the petitioners while Mr. N.A.M. Abdur Razzaque the learned Advocate appeared on behalf of the plaintiff-opposite-party No. 1.
The learned Advocate appearing on behalf of the petitioners submits that in passing the impugned judgment and order dated 18.11.2013 the learned trial court committed an error of law resulting in an error in the decision in not considering that the plaintiff to the suit prior to the present suit for declaration of title filed a Title Suit being No.158 of 2010 and in that suit the plaintiff prayed for eviction of the defendants from the suit land on the ground that the plaintiff is the owner of the suit land but the learned Senior Assistant Judge, 3^rd Court, Dhaka dismissed the suit on contest on 31.07.2012 and thus the present suit is barred by the principle of res-judicata as provided in section 11 of the Code of Civil Procedure. The learned Advocate further submits that the learned Joint District Judge, 5^th Court, Dhaka having failed to appreciate the actual proposition of law arrived at an erroneous view that the provision of law as incorporated in Order VII, rule 11 of the Code of Civil Procedure is not applicable in the instant suit and it is a matter of evidence by virtue of which the matter agitated from the side of the defendants can be adjudicated and finally settled. The learned Advocate lastly submits that the learned trial court erred in law as well as in facts resulting in an error in the decision occasioning failure of justice and as such the impugned judgment and order is not sustainable.
As against the aforesaid submissions of the learned counsel of the petitioners the learned counsel appearing on behalf of the plaintiff-opposite party opposing the Rule controverted the arguments advanced from the side of the learned Advocate of the petitioners and submits that the trial Judge, viz. the learned Joint District Judge, 5^th Court, Dhaka during passing the impugned judgment and order committed no illegality or irregularity. The learned Advocate further submits that in the instant suit at the present moment there is no scope to entertain such application under Order VII rule 11 of the Code of Civil Procedure and it is apparent from the face of the papers that the earlier suit which was filed by the plaintiff in the third court of learned Assistant Judge, Dhaka being Title Suit No.158 of 2010 was not between the same parties and the matter-in-issues are quite different and the points for determination on which that suit was disposed of are different with that of the present suit. The learned Advocate also submits that the earlier suit was not a suit for declaration of title and recovery of khash possession. Hence; the provision laid down in section 11 of the Code of Civil Procedure is very much inconsistent for it’s application in the instant suit as the principle of Resjudicata itself provides that, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.”
Therefore, the former suit being Title Suit No.158 of 2010 was quite different and the matter for adjudication therein is not identical with the present suit being Title Suit No.201 of 2013. The learned Advocate lastly submits that the learned trial Judge rightly held that at this stage; there is no scope for rejection of the plaint as the matter of res-judicata and the point of limitation is a mixed question of facts and law.
We have considered the submissions of the learned Advocates and have perused the impugned judgment and order passed by the learned trial Court i.e. the learned Joint District Judge, 5^th Court, Dhaka in Title Suit No.201 of 2013 including the judgment and dismissal decree passed in the earlier suit being No.`158 of 2010 along with the connected papers as well as the application filed under Order VII rule 11 of the Code of Civil Procedure.
Having gone through the connected papers it transpires that the former suit i.e. the Title Suit No.158 of 2010 was instituted by the present plaintiff-opposite party No. 1 for eviction of tenant from the suit premises and the subsequent suit which is Title Suit No.201 of 2013 is a suit for declaration of title and recovery of khash possession. It further transpires from the connected papers that the learned trial Judge in the former suit framed four issues for decisions and those were as follows:

“ক) অত্র মোকদ্দমাটি বর্তমান আকারে ও প্রকারে চলতে পারে কিনা?
খ) অত্র মোকদ্দমার নালিশী সম্পত্তির সংশ্লিষ্টতায় বাদী বিবাদীদের মধ্যে মালিক ভাড়াটিয়ার সম্পর্ক বিদ্যমান ছিল বা আছে কি না ?
গ) বাদী মালিক মর্মে অত্র মোকদ্দমা আনয়ন করার কষদয়ড় জঢ়তশধভ আছে কি না এবং বিবাদীগণ খেলাপী ভাড়াটিয়া গণ্যে উচ্ছেদযোগ্য কি না ?
ঘ) অত্র মোকদ্দমা প্রার্থিত মতে বাদী প্রতিকার পেতে পারে কিনা?’’

On the aforesaid four issues for determination the learned trial Court decided the fate of that suit and dismissed the suit for want of necessary proof.
We have come across from the instant Title Suit being No.201 of 2013 that this suit is a suit for declaration of title and recovery of khash possession. In the said suit the proposed issues from the side of the plaintiff were as follows:

১z অত্র মোকদ্দমা বর্তমান আকারে ও প্রকারে চলিতে পারে কি না?
২z অত্র মোকদ্দমা পক্ষদোষে দুষ্ট কিনা ?
৩z অত্র মোকদ্দমা তামাদি আইনে বারিত কি না ?
৪z অত্র মোকদ্দমা রেস জুডিকেটা দ্বারা বারিত কি না ?
৫z নালিশী সম্পত্তি ওয়াকÚফকৃত সম্পত্তি কি না ?
৬z বাদী স্বত্ব সাব্যসÛত্র্রমে খাস দখল পাইতে পারে কি না ?

Obviously, in view of the nature of the present suit the issues which have been proposed from the side of the plaintiff deserve consideration of the trial Judge inasmuch as the matter of controversy between the parties to the suit is encircled within the right, title, interest and the matter of possession and dispossession of the concerned parties. Besides this; the provision laid down in section 11 of the Code of Civil Procedure provides as many as five conditions, which are necessary to constitute res-judicata. These are : (i) “The matter directly and substantially in issue” in the former suit must be the same in the subsequent suit. (ii) The former suit must have been between the same parties or between parties under whom they or any of them claim. (iii) The parties in the subsequent suit must have litigated under the same title in the former suit. (iv) The Court which decided the former suit must have been competent to try the subsequent suit. (v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided in the former suit.
On meticulous consideration of the application for rejection of the plaint in connection with the former suit and the present Suit being No.201 of 2013 it is apparent from the face of the papers that the matter in issues are not at all identical with the former suit and it is not directly or substantially in issues which has been heard and decided finally by a competent court of law. Apart from this; it transpires that the parties to the suits are not same. Beside this; it is a decided matter that the question of res-judicata as well as the question of limitation is a mixed question of facts and laws which is required to be adjudicated and decided during trial of the original suit. The learned trial Judge with regard to this; relying upon the decision of our Apex Court reported in 20 BLD(AD) 82 rightly held that there is no scope at the present stage to entertain such application under Order VII, rule 11 of the Code of Civil Procedure.
Having regard to the facts, circumstances and proposition of law we have every reason to inclined such a view that the learned Joint District Judge, 5^th Court, Dhaka committed no illegality in disallowing the application for rejection of the plaint, rather; he was quite justified in holding the view that this provision of law is not applicable in the instant suit. Hence; we find no substance in the Rule.
In the result, the Rule is discharged. The impugned judgment and order dated 18.11.2013 passed by the learned Joint District Judge, 5^th Court, Dhaka, in Title Suit No.201 of 2013 rejecting the application filed by the defendants No. 1-3 under Order VII, rule 11 of the Code of Civil Procedure stands good.
Let the order of stay granted earlier by this Court at the time of issuance of the Rule be vacated.
However; there will be no order as to costs.

Communicate the judgment and order immediately.
Ed.

Raziul Hasan Vs. Badiuzzaman Khan and others

Case No: Civil Appeal No. 88 of 1994

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: KZ Alam,Dr. Rafiqur Rahman,,

Citation: 48 DLR (AD) (1996) 71

Case Year: 1996

Appellant: Raziul Hasan

Respondent: Badiuzzaman Khan and others

Subject: Administrative Law,

Delivery Date: 1996-2-1

Raziul Hasan

Vs.

Badiuzzaman Khan and others, 1996,

48 DLR (AD) (1996) 71

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J

Raziul Hasan.………………………………………….Appellants

Vs

Badiuzzaman Khan and others………………..Respondents*

Judgment
February 1, 1996

Constitution of Bangladesh, 1972
Article 104
          No remedy is available to the appellant though a gross injustice has been done to him for no fault or laches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view it is a most appropriate case for the Court to exercise our jurisdiction under Article 104.

Lawyers Involved:
KZ Alam, Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record —For the Appellant.
Dr. Rafiqur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on- Record— For the Respondent No. 1.
Kazi Shahabuddin Ahmed, Advocate-on-Record— For the Respondent No. 7.
Not represented—Respondent Nos. 2-6.

Civil Appeal No. 88 of 1994
(From the Judgment and order dated 8-11-93 passed by the Appellate Administrative Tribunal in Appeal No. 75 of 1993)

Judgment:
       Latifur Rahman J: This appeal by leave by added respondent No. 6-appellant is against the judgment and order dated 8-11-93 passed by the Appellate Administrative Tribunal dismissing Administrative Appeal No. 75 of 1993 thereby affirming the judgment and order dated 13-4-93 passed by the Member, Administrative Tribunal, Dhaka, in Administrative Tribunal Case No. 264 of 1990.

2. Respondent No. 1 filed Administrative Appellants Tribunal Case No. 264 of 1990 praying for a declaration that he has been the Director/Deputy Secretary with effect from 18-4-81 or in the alternative from 29-6-81 and also for a declaration that the placement of the appellant and respondent No. 7 above him in the seniority list are illegal and void.

3. The case of respondent No. 1, inter alia, is that he joined the then Pakistan Secretarial Service on 24-12-68 as probationer Section Officer being appointed as such on the basis of the result of the CSS Examination of 1967; that in 1973 he opted for Bangladesh and was repatriated to Bangladesh; that thereafter he was appointed Section Officer in the Ministry of Commerce; that he was transferred to the Ministry of Foreign Affairs as Section Officer on 9-5-74 and was posted at the Embassy of Bangladesh in Senegal as Second Secretary on 15-2-1979; that he was then posted in the Ministry of Foreign Affairs of Bangladesh on 11-9-1980 as Senior Scale Section Officer that thereafter he was encadred in the Bangladesh Civil Service (Foreign Affairs) as per Gazette Notification published on 18.4.1981 on his absorption as Deputy Secretary; that he was appointed Deputy Secretary of the Ministry of Education as Member of the Senior Services Pool. After necessary test as per notification dated 29-6-1981 with the status of a Deputy Secretary he was appointed Director of the Directorate of South Asia-2 and that he assumed the charge of the office by Memo, dated 13-7-1981 that he was asked to intimate his option as to whether he was willing to relinquish his lien to the cadre of BCS (Foreign Affairs); that he requested the Secretary of the Establishment Division for his confirmation in the BCS (Foreign Affairs) Cadre as Deputy Secretary; that meanwhile the Ministry of Foreign Affairs by order dated 10-6-82 cancelled the notification relating to his assumption of charge as Director; that the Ministry of Establishment Division cancelled his appointment as Deputy Secretary in the Senior Services Pool by order dated 17-2-83; that he submitted representation for regularization of his appointment but he was informed by order dated 17-8-83 in the negative; that in 1983 a draft seniority list was prepared. At that time he was posted at Islamabad as a Counselor below the rank of Deputy Secretary. Respondent No. 1 submitted representation which was rejected by order dated 12-7-86. On the other hand, the present appellant Raziul Hasan and Mr. SA Jalal (Respondent No. 7) were placed in the gradation list of 1989 above respondent No. 1 who was higher in the gradation list of 1984. In this way the seniority of respondent No. 1 was affected thereby degrading his rank and status. After his return to Bangladesh he submitted representation for restoration of his position and seniority which was rejected on 30-6-90. Thereafter he instituted this case on 29-12-90.

4. The Secretary, Ministry of Foreign Affairs, contested the application before the Administrative Tribunal by filing a written statement denying therein all the material allegations made in the application and contending, inter alia, that respondent No. 1 was a Member of the CSS Cadre and was under the administrative control of the Establishment Ministry; that he was appointed on 9-5-1974 on deputation as Section Officer in the Ministry of Foreign Affairs and was posted as Second Secretary of the Bangladesh Embassy at Senegal; that he along with others applied for absorption in tile BCS (Foreign Affairs) and was absorbed in the ECS (Foreign Affairs) Cadre by notification dated 18-4-81 along with 6 others; that he was absorbed as a Section Officer and not as Deputy Secretary; that he was given option as to whether he would remain in BCS (Secretariat) Cadre and join as Deputy Secretary or be member of BCS (Foreign Affairs) Cadre and in spite of repeated remainders given by the Establishment Division of the Government, he did not exercise his option and letters were issued again and again and on 13th July 1981 and 19th April, 1982 but he never gave any clear reply. Instead he made series of representations and eventually by a letter dated 17th July 1982, he opted not to stay in the Senior Services Pool and exercised his preference to stay in BCS (Foreign Affairs) Cadre; that he never joined as a Deputy Secretary in the Ministry to which he was posted and wanted to have the best of both the cadres including being in the Senior Services Pool without following the rules and procedures; that in such a situation, the order of the Ministry where he was posted as a Deputy Secretary on promotion was cancelled, so also his placement as a Director in the Ministry of Foreign Affairs; that in 1983 the seniority list of the Members of the BCS (Foreign Affairs) was prepared according to the Composition and Cadre Rules, 1980; that he assumed the charge of Director/Deputy Secretary on 13-7-8 1 on the basis of promotion which was subsequently cancelled; that the Gradation list published in 1984 was latter amended from time to time; that Mr. SA Jalal (Respondent No. 7), Mr. Raziul Hasan (Appellant) and Mr. Rafique Ahmed Khan were appointed in 1971 by the Mujib Nagar Government and, as such, they were given seniority from the date of their appointment at Mujib Nagar with the approval of the Council Committee; that the case of respondent No. 1 was considered several times on his representations and he having not fulfilled the requirements for placing him above the appellant, his case was refused; that his last representation was not even forwarded to the Establishment Ministry as it had no good reasons for reconsideration of his case and respondent No. 1 was informed accordingly; that it is absolutely wrong to say that his case was rejected on 30-6-90; that the claim of respondent No. 1 was time-barred and the Administrative Tribunal could neither have admitted his application nor could decision be given in violation of the specific provisions of the statute.

5. Administrative Tribunal case was filed on 29-12-90. In this case, appellant Raziul Hasan and respondent No. 7 SA Jalal were not initially made parties, Subsequently, on 5-8-92 respondent No. 1 filed an application for addition of parties for impleading the appellant and respondent No. 7 as parties in the case as they will be adversely affected by the change of seniority list of 1989. Before the Administrative Tribunal only the Secretary, Ministry of Foreign Affairs contested the case. It further appears that at the time of filing of the case and when the amendment petition was allowed the appellant was serving abroad in Bangladesh Mission. Notices were duly served upon the present appellant through Bangladesh Foreign Office but he was not allowed to come to Dhaka and to defend his case properly and effectively by engaging his Advocate of choice and placing all relevant laws and papers which were necessary and essential for proper disposal of the case. Further, the Ministry of Foreign Affairs always held out that necessary and proper steps were being taken for conducting the case before the Tribunal, Ultimately, the case was allowed by the Administrative Tribunal on 13-4-93 by giving the following reliefs to present respondent No.1:
               “(1) It is hereby declared that the petitioner has been Director/Deputy Secretary on his being duly promoted to the post with effect from 13-7-81; (2) The order of cancellation of the charge of Director held by the petitioner at Annexure-13 is hereby declared to be illegal, void and of no legal effect; (3) It is further declared that the placement of the opposite party Nos. 6-7 in the Gradation List of 1989 at serial Nos. 80 and 81 above the petitioner affecting his seniority is illegal, void and is one not based on any legal foundation.”

6. After the disposal of the Administrative Tribunal case the appellant was informed by the Ministry of Foreign Affair as to the result of the case. The appellant requested the Ministry of Foreign Affairs by phone/telex to file case on his behalf before the Administrative Appellate Tribunal. The Ministry of Foreign Affairs by telex message dated 28th July, 1993 mentioned that it was taking all steps to file the appeal on behalf of the appellant. In the meanwhile, however, the appellant talked to his Advocate at Dhaka over phone and learnt from the learned Advocate that the appeal has already become time-barred. After obtaining the certified copy the appeal was filed before the Administrative Appellate Tribunal. The appeal being barred by 80 days the same was dismissed as time-barred. Thereafter this leave petition was filed by the appellant.

7. Leave was granted primarily to consider the case of the appellants for doing complete justice under Article 104 of the Constitution. When admittedly the appellant was working in Bangladesh Mission abroad and due to his absence from Bangladesh which was beyond his control, the parent Ministry failed to produce the relevant laws, namely, the Mujibnagar Employees (Condition of Service) Rules 1980, the Government Servants (Seniority of Freedom Fighters) Rules, 1979 and the relevant documents giving effect to these rules so far as it relates to the appellant. At the time of granting leave for doing complete justice in the matter we not only noticed the delay of the appellant in filing the Administrative Appellate Tribunal appeal but also found that the question of delay in filing the case itself by respondent No. 1 remained undecided though specifically the bar of section 4(2) of the Administrative Tribunal Act was raised.

8. Mr. KZ Alam, learned Advocate appearing for the appellant, submitted before us that the appellant in fact got the benefit of the Mujibnagar Employees (Conditions of Service) Rules. 1980 and the Freedom Fighters (Seniority) Rules, 1979 as is evident from the resolution of the Council Committee for Senior Service, for promotion and service structure dated 15-2-89 and the Gazette Notification Memo No. SS (A)-10/128/84 dated 7-3-89, but unfortunately, neither the rules nor the papers were produced before the Tribunal through inadvertence by the Ministry of Foreign Affairs, The learned Advocate submits that only if these rules and ‘the subsequent decision given under the rules would have been considered then the fate of the case would have been otherwise on law and fact.

9. Dr. Rafiqur Rahman, the learned Advocate appearing for respondent No. 1, on seeing the relevant rules and the admitted papers filed in the paper book, found it difficult to controvert the submission of the learned Advocate for the appellant, He, however, submitted that the respondent should get an opportunity to controvert the facts and law now raised for the first time by the appellant and the matter may be remanded to the Tribunal for the said purpose.

10. We find from the judgment of the Administrative Tribunal that respondent No. 1 at the time of hearing of the case before the Tribunal produced Notification No. Estt. (1)-6/4/77 dated July 11. 1977 issued from the Ministry of Foreign Affairs with regard to the absorption of appellant and respondent No. 7 as the officers of the Ministry of Foreign Affairs. The relevant portion of the same runs as follows:

Name	Date of first Appointment	Date of Joining.	Remarks
4. Mr. Sheikh Ahmed Jalal	29-1-78	9-2-72	3rd Secretary, Embassy of Bangladesh, Tokyo.
5. Mr. Raziul Hasan	11-6-73	16-6-73	3rd Secretary, Embassy of Bangladesh, Paris.
6. Mr. Rafique Ahmed	16-6-71	15-6-71	3rd Secretary, At Mujib Nagar

11. From the above position the learned Member held in his judgment as under:
              “In the Gradation List published in 1984 nothing is mentioned as to if the opposite party Nos. 6-7 were appointees of Mujib Nagar Government as was noted in the case with Mr. Rafique Ahmed Khan. The dates of first appointment of the opposite Party Nos. 6-7 relate to a period long after the war of liberation. The petitioner also produced photo copy of the first appointment letters of the opposite party Nos. 6-7 dated 29-1-73 and 11-6-73. From these appointment letters it does not appear that the opposite party Nos. 6-7 were absorbed as Mujib Nagar employees. From all these papers it appears that the opposite party Nos. 6-7 were directly appointed on 29-1-73 and 11-6-73 respectively and accordingly, the gradation list was correctly prepared and published in 1984. Subsequently, the opposite party Nos. 6-7 raised the claim to the effect that they were Mujib Nagar employees and accordingly, the Government have decided to give the opposite party Nos. 6-7 seniority as Mujib Nagar employees.
The Ministry of Establishment did not contest the claim of the petitioner. The opposite party No. 1 also did not produce any documents on the basis of which the opposite party Nos. 6-7 have been given also seniority as Mujib Nagar employees. The purported seniority to be given to the opposite party Nos. 6-7 above that of the petitioner appears to be one not based on any valid papers and contrary to their appointment letters. In that view of the matter the placement of the Opposite Party Nos. 6-7 at serial Nos. 80 and 81 in the Gradation List of 1989 cannot be accepted as legal and based on any valid foundation.
             In all fairness of the things the restoration of the position of the gradation list of 1984 will be appropriate.”

12. Thus it is palpable that the gradation list published in 1984 showed that appellant Raziul Hasan did not get his benefits of the seniority as per the existing rules. Whereas the resolution of the Council Committee dated 15-2-89 and the Gazette Notification dated 7-3-89 as mentioned above show a different picture altogether.

13. We now find that no remedy is available to the appellant, though a gross injustice has been done to him for no fault or laches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view of the matter, we thought it to be a most appropriate case to exercise our jurisdiction under Article 104 of the Constitution. It will not be out of place to say that Article 32 (2) of the Constitution of India invests the Supreme Court of India not only with the writ jurisdiction but also with the power to issue directions, orders or writs in any matter. Thus the Indian Supreme Court possesses original jurisdiction. But in the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution. A substantial injustice having been done to the appellant we feel that the jurisdiction under Article 104 of the Constitution should be exercised in the facts and circumstances of this case.

14. Before parting with the case, it may be mentioned that in Government Service the question of due promotion and seniority are very important matter and a person who enters Govt. Service always thinks that if he performs his duty with honesty, sincerity and dedication his promotion and seniority is secured. In doing complete justice in this case we are not unmindful of this important consideration.

Accordingly, the appeal is allowed without cost and Administrative Tribunal Case No. 264 of 1990 is remanded to the Administrative Tribunal to reconsider only the last part of its order as to the Gradation List of 1989 after giving an opportunity to the appellant to file a written statement and hearing respondent No. 1 and the appellant afresh. The other parts of the Tribunal’s order will remain and not be reopened.
Ed.

Reazuddin & others Vs. Jatindra Kishore Malaker and others

Case No: Civil Appeal No. 6 of 1984.

Judge: Chowdhury A. T. M. Masud,

Court: Appellate Division ,,

Advocate: Mr. Fazlul Karim,Santi Ranjan Karmaker,,

Citation: 37 DLR (AD) (1985) 202

Case Year: 1985

Appellant: Reazuddin & others

Respondent: Jatindra Kishore Malaker and others

Subject: Property Law,

Delivery Date: 1984-12-04

Reazuddin & others Vs. Jatindra Kishore Malaker and others
37 DLR (AD) (1985) 202

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Reazuddin & ors………………………Appellants
Vs.
Jatindra Kishore Malaker and others…………Respondents

Judgment
December 4, 1984.

The State Acquisition and Tenancy Act, 1950 (XXVIII of 1951)
Section 143A

Section 143A is only concerned with the question of possession of the land. Question of title is beyond the scope of such a proceeding.
The material consideration in a case under section 143A of the State Acquisition and Tenancy Act is the question of possession. Whatever may be the defect in title, if it is found that the appellants, have been possessing the case land when the record of right was prepared, they are entitled to have their names recorded……………..(14)
The High Court Division cannot interfere with the lower Court’s decisions in grounds which cannot be considered in a case under section 141A of the State Acquisition and Tenancy Act……………………(15)

Lawyers Involved:
Fazlul Karim, Senior Advocate, instructed by M.G. Bhuiyan, Advocate-on-Record—For the Appellants.
Santi Ranjan Karmaker, Advocate-on-Record—For the Respondent Nos.1 & 2.

Civil Appeal No. 6 of 1984.
(From the judgment and order dated 22.6.83, passed by the High Court Division, Dhaka Bench, in Civil Revision Case No.150 of 1980.)

Judgment

Chowdhury A.T.M. Masud J. — This appeal by special leave is directed against the judgment and order dated 22.6.83, passed by the High Court Division, Dhaka Bench, in Civil Revision Case No.150 of 1980.

2. Rajab Ali and Ajitullah, predecessors of the present appellants filed Miscellaneous Case No. 36 of 1974, in the Court of Munsif, Sherpur, for correction of the record of right under section 143A of the State Acquisition and Tenancy Act.

3. This case, in brief, was that the suit land measuring 65 acres originally belonged to "Deity Jagannath Dev Bigraha and was recorded in the name of Shebait Haridas Bairagi. After the death of Haridas Bairagi the right of Shahaitship devolved upon his wife, Ishwar Mani Baisnavi, who transferred the said right to her adopted daughter Nandarani Baisnavi under a registered Arpannama dated 23.2.43.Thereafter Nandarani settled the case land in favour of Rajab Ali and Ajitullah by a registered Kabuliyat dated 8.5.46.
The appellants asserted possession on the strength of the aforesaid kabuliyat and contend that the case land has been wrongly recorded during the R.O.R. operation in the names of the respondents.

4. Respondents 1 and 2 contested the case by filing a joint written objection denying the material allegations of the appellants. Their case was that Ishwar Moni was not the wife of Haridas and Nandarani was not the adopted daughter of Ishwar Moni and she had no right to settle the case land as Shebait in favour of the predecessor of the appellants. It was contended that the predecessors of the appellants and after them the appellants were bargadars under the Deity Jagannath Dev Bigraha but they stopped delivering the crops to the deity.
It was further contended that after the death of Haridas Bairagi, the respondents and their predecessors managed the affairs of the deity as defacto Shebait and the case land was correctly recorded in the name of the Deity represented by the defacto Shebaits.
The learned Munsif allowed the application holding that the appellants have been possessing the land by way of adverse hostile possession for more than 12 years and as such they have acquired a good right, title and interest in the case land.

5. On appeal, the learned Subordinate Judge, Mymensingh, affirmed the decision of the trial Court observing that whatever may be the defect with the Exts.1-2, the appellants have been possessing the case land for more than 30 years in the capacity of Korfa tenants on the strength of Ext. 2 and they being in possession of the case land at the time of preparation of the record of right their names and not that of the respondents should have been recorded in the record of right.

6. Against the aforesaid decision of the learned Subordinate Judge, the respondents filed a revisional application before the High Court Division, Dhaka Bench, and obtained a rule which was ultimately made absolute. A Single Judge of the Dhaka Bench set aside the judgments and orders of the Courts below and dismissed the miscellaneous case filed under section, 143A of the State Acquisition and Tenancy Act.
Leave was granted by this Court to consider whether the learned Judge of the High Court Division correctly interfered with the lower appellate Court's order confirming the trial Court's order for correction of the records in favour of the persons in possession.

7. Mr. Fazlul Karim, the learned Counsel, appearing for the appellants argues that the learned Judge of the High Court Division committed an error of law by entering into a complicated question of title in a case which is to be decided solely on the question of possession. The learned Counsel referred to the observation of the learned Judge to the effect that Kabuliyat Ext. 2 did not confer any title to the appellant.

8. It was also argued that the learned Judge was wrong in holding that the appellants did not satisfy the legal requirement as demanded by section 143A of the State Acquisition and Tenancy Act or that the case was bad for defect of parties.

9. Mr. Santi Ranjan Karmakar, the learned Advocate-on-record, appearing for the respondents, however, argues that the learned Judge of the High Court Division has rightly interfered with the concurrent decisions of the Courts below, which misconceived the provision of Order 1, rule 9 of the Code of Civil Procedure and which further failed to notice that the requirement of section 143A of the State Acquisition and Tenancy Act was not complied with.
The learned fudge of the High Court Division did not reverse the finding of the Courts below that the appellants were in possession of the case land, when the disputed record was prepared.

10. The High Court Division reversed the decision of the Courts below with the observation that the Courts below traveled beyond the jurisdiction vested in them under section 143A of the State Acquisition and Tenancy Act in deciding the question of title. There is no basis for such observation, while considering the claim of the contending parties, the learned Subordinate Judge incidentally entered into the question of title but decided the case on the basis of possession.
His positive finding is that the appellants entered into possession of case land on the basis of Ext. 2, kabuliyat as far back as in 1946 and they have exclusively possessed the case land for more than 30 years. On such finding of possession, he affirmed the decision of the learned Munsif, but the learned Judge of the High Court Division reversed the decision of the lower Appellate Court without reversing the finding of possession made by the Courts below.

11. As regards defect of parties the Shebait having been brought on record, the learned Judge of the High Court Division was not justified in holding that the case should have been dismissed for not making the deity a party in the suit. He was also not justified in entering into the complicated question of title by making the observation that the kabuliyat Ext. 2 did not confer any title to the appellants.

12. The learned Subordinate Judge has given cogent reasons for his finding and he committed no illegality in observing that Exts.1 and 2, certified copies of the registered Arpannama and the kabuliyat, were in existence for more than 30 years on the basis of which the present appellants claim their interest in the disputed land, whereas the present respondents could not produce anything except disputed record of right to show that they were-Shebait of the debottar estate. The Subordinate Judge rightly observed that whether Iswar Moni was the wife of Haridas and whether Nandarani had acquired right of Shebait on the basis of Arpannama executed by Iswar Moni, are questions which cannot be determined in a case under section 143A of the State Acquisition and Tenancy Act.

13. The aforesaid observation was made incidentally while considering the main question of possession of the parties. As regards continuous possession of the appellants in the case land even the respondents admitted the same although they contended that the possession was as that of bargader. They, however, failed to prove the story of barga cultivation.

14. It is well settled that the material consideration in a case under section 143A of the State Acquisition and Tenancy Act is the question of possession. Whatever may be the defect in title, if it is found that the appellants have been possessing the case land when the record of right was prepared, they are entitled to have their names recorded.

15. Since the final Court of fact on consideration of evidence found the appellants in continuous possession of the land for 30 years, the order allowing the application under section 143A of the State Acquisition and Tenancy Act for inclusion of the names of the appellants in the record of right has been correctly passed and the learned Judge of the High Court Division was not Justified, in interfering with the said decision on grounds which are not to be taken into consideration in a case under section I43A of the State Acquisition and Tenancy Act.

In the result the appeal is allowed. The order of the High Court Division is set aside and that of the lower Appellate Court is restored.
There will no order as to costs.
Ed.

Reazul Hoque Molla Vs. Afizullah Mollah @ Shafiuddin Molla, 42 DLR (AD) (1990) 74

Case No: Civil Appeal No. 11 of 1988

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,,

Citation: 42 DLR (AD) (1990) 74

Case Year: 1990

Appellant: Reazul Hoque Molla

Respondent: Afizullah Mollah @ Shafiuddin Molla

Subject: Specific Performance, Law of Contract,

Delivery Date: 1989-4-30

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Reazul Hoque Molla
........................................Defendant-Appellant
Vs.
Afizullah Mollah @ Shafiuddin Molla & ors
………………................Plaintiff-Respondents

Judgment
April 30, 1989.

The Code of Civil Procedure, 1908 (V of 1908)
Section 151
Order IX, Rule 13
The learned assistant judge has not come to any finding as to service of summons upon the appellants to ascertain due service. So there is no necessity of farther determination of question of service upon the appellants. The order of the learned assistant judge has rightly been set-aside by the High Court Division. In deciding an application under Order IX, rule 13 of the Code of Civil Procedure learned Assistant Judge cannot restore the suit in exercise of inherent power under section 151 of the Code…………………(5 & 6).

Lawyers Involved:
T. H. Khan, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record — For the Appellant
Abu Sayeed Ahmed, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.1.
Not Represented.—Respondent Nos. 2-4

Civil Appeal No. 11 of 1988
(From the judgment and order dated 3 March, 1987 passed by the High Court Division, Dhaka in Civil Revision No. 470 of 1984).

JUDGMENT

A.T.M. Afzal J.

In this appeal by leave, at the instance of the defendant, the short point for consideration is whether the learned Judge of the High Court Division was justified in selling aside in revision the order of the Assistant Judge allowing a Miscellaneous Case under Order 9, rule 13 of the Code of Civil Procedure.

2. Facts of the case, briefly, are that the respondent-plaintiff instituted Title Suit No.34 of 1982 in the Court of Assistant Judge, Narsingdi for specific performance of contract against his father, Danis Ali Molla. The suit was re-numbered as Title Suit No.20 of 1984 on transfer to the Court of Assistant Judge, Monohordi. Danis Ali Molla died during pendency of the suit and his heirs including the appellant (a son) were substituted in his place. The suit was decreed ex parte on 31.1.83. The appellant filed an application under Order 9, rule 13 C. P. C. for selling aside the ex parte decree which was registered as Miscellaneous Case No.23 of 1983. It was alleged that the summons was not served upon the appellant and that he came to know about the ex parte decree for the first time on 10.2.83.

3. Plaintiff-respondent contested the miscellaneous case asserting that the summons was duly served upon all the heirs of Danis Ali Molla including the appellant and that the appellant had full knowledge of the proceeding but even then he did not come to contest the suit. The learned Assistant Judge by order dated 29.5.84 allowed the Miscellaneous Case subject to payment of Tk.200/- by the appellant to the plaintiff. Plaintiff then went in revision against the said order and a learned Judge of the High Court Division, Dhaka, by the impugned Judgement and order dated 3 March 1987 made the rule absolute and set aside the order of the learned Assistant Judge.

4. Mr. T.H. Khan, learned advocate for the appellant, submitted that having found that the Assistant Judge had not come to any definite finding as to whether summons was served upon the defendant-appellant, the learned Judge of the High Court Division ought to have either remanded the case or examined the record himself for a decision as to alleged non-service of summons. He also submitted that interference in revision being discretionary, the order of the Assistant Judge allowing the Misc. Case upon awarding cost ought not to have been interfered with.

5. The learned Judge of the High Court Division observed in his judgment that the Assistant Judge was required to come to a finding with reference to the evidence on record that there was no service of summons upon the defendant or there was sufficient cause for his non-appearance at the hearing of the suit. In the absence of any such finding the Assistant Judge had erred in law in allowing the Misc. Case only for the ends of justice, he observed further. It will be seen that the learned Assistant Judge evidently did not set aside the ex parte decree on the grounds as are available under Order 9, rule 13 C.P.C but he resorted to the inherent power of the Court under section 151 C.P.C. This the Assistant Judge could not lawfully do, because, if he is considering an application under Order 9, rule 13 C.P.C he has authority to determine whether the ground for selling aside the ex parte decree as mentioned therein exists or does not exist. He cannot draw upon inherent power while acting under a specific provision of the Act governing the disposal of the case. Therefore, the view taken by the learned Judge of the High Court Division is correct and it could not be said that he was not justified in selling aside the order of the Assistant Judge.

6. Upon a reference to the order of the Assistant Judge it is found that he has considered the evidence of both sides on the question of service of summons but he was not clear about the actual receipt of summons by the defendant. He was, however, absolutely clear that the appellant had knowledge about the suit because his elder brother, another defendant in the suit, had appeared and prayed for time. The suit being among close relations of the same family there could not be any question of the appellant remaining unaware of the same, the learned Assistant Judge observed. It was noticed by the learned Assistant Judge as per record the summons were served upon the defendants. The summons for the appellant was, however, actually served on one Nurul Islam, a cousin of the appellant, living in the same house in the absence of the appellant. Nurul Islam deposed that he had handed over the summons to the appellant. In the copy of the Judgment (Page 35 of the Paper book) is written "যাহাকে উভয়পক্ষের সাক্ষীগণের সাক্ষ অনুযায়ী সুষ্ঠুভাবে ধারনা করা যায় যে প্রার্থী সমন পৌছানো হয়েছে।" Mr. T. H. Khan could not show that the finding as quoted above was wrong. But reading the High Court Division Judgement, it appears that there may be something missing in it. However, taking for argument's sake that the learned Assistant Judge has not come to any finding as to service of summons upon the appellant, we do not think, having regard to all the facts noticed and observation made by the learned Assistant Judge, that there is any necessity for further determination of the question of service of summons upon the appellant. The order of the learned Assistant Judge has been rightly set aside by the High Court Division and there is no force in the submission made by the learned Advocate for the appellant.

In the result, the appeal is dismissed without any order as to costs.

Ed.

Rehana Ali Vs. Government of Bangladesh and others, 2 LNJ (2013) 167

Case No: Writ Petition No. 7407 of 2011

Judge: Tariq ul Hakim,

Court: High Court Division,,

Advocate: Mr. Manzill Murshid,Ms. Kazi Zinat Hoque,Mr. Shams-ud Doha Talukder,Mr. Masud Ahmed Sayeed,Mr. Syed Ejaz Kabir,Mr. A.B.M. Bayezid,,

Citation: 2 LNJ (2013) 167

Case Year: 2013

Appellant: Rehana Ali

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction, Locus Standi,

Delivery Date: 2012-05-27

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Tariq ul Hakim, J.
And
Md. Faruque, J.

Judgment
24.05.2012 and 27.05.2012

Rehana Ali

... Petitioner.

-Versus-

Bangladesh represented by the Secretary, Ministry of Education and others.

. . .Respondents

Constitution of Bangladesh, 1972
Article 102
Maintainability of writ petition—As the petitioner has challenged the inaction of the respondent Nos. 1 to 4 relating to the matter of respondent No. 5’s Chancery academy of English law and prayed for a direction that they should monitor the provisions of tuition and pendency of a criminal case will not be a bar in maintaining the writ petition.
Let us address the point of maintainability first. It is alleged by the petitioner that she paid taka ten lac to the Respondent No.5 but that is denied by the respondent. Similarly, the petitioner’s claim that the certificate is false is also denied by the answering Respondent no. 5. However it is admitted by the parties that the petitioner did undertake a course of study at the Respondent No.5’s Chancery Academy of English Law for a Diploma/ Degree of the Williamsburg University of U.K. The instant Rule is about the Respondent Nos. 1-4’s action or inaction relating to this matter and a prayer for a direction that they should monitor the provision of tuition by such institutions. From that point of view we find no reason why the Rule cannot be maintainable. Secondly even if a Criminal Case is filed by the petitioner for cheating etc., we see no bar in maintaining this Writ Petition for judicial review for the administration’s alleged inaction. ...(22)

Constitution of Bangladesh, 1972
Article 102
In fact in the list of 157 degree awarding bodies of the U.K. the name of Williamsburg University does not appear. A degree awarding body in the U.K. derives its authority either from Royal Chater or Act of Parliament or by an order of the Privy Council. There is nothing before us to show how Williamsburg University acquired its degree awarding status. Thus we are not satisfied about Williamsburg University being a British University. We do not say that Williamsburg University does not exist at all. It may well exist in some other country and have affiliated offices in the U.K. and provide a web based (internet based) distance learning programme. It is however clear that its LL.B. Degree is not recognized by the Bar Standards Board of U.K. as well as the Bangladesh Bar Council. In that view of the matter, apart from self satisfaction and self education no useful purpose will be served in pursuing the LL.B. course of Williamsburg University. It is however for the University Grants Commission of Bangladesh to formally approve or disapprove the said LL.B. course of Williamsburg University; thus on the face of evidence before us the Respondent No.5 Chancery Academy of English Law should not be allowed to provide coaching/tuition for any course of Williamsburg University until specific approval is obtained from the University Grants Commission. We do not wish to comment on the allegation of fraud and fake certificate since Criminal case is pending against the Respondent No.5 and no doubt evidence will be adduced in Court on the basis of which the concerned Court will take its decision.

It is not the work of this Court sitting in writ jurisdiction to shut down educational institutions. The State machinery is adequately empowered to do the same and it should exercise such power after examining all the facts in each case.

The Respondent No.6 has made a spot survey of a number of institutions including the Respondent No.5’s Chancery Academy of English Law and has made observations that some of them are completely fake etc. It is unfortunate that the said respondents after having made their survey and coming to a conclusion that the institutions are fake have not taken any steps against them. Accordingly they are urged to take appropriate steps pursuant to their findings in accordance with law within 60(sixty) days from the date of receipt of this judgment. ...(26 to 29)

Private University Act (XXXV of 2010)
Sections 3 and 9
It appears that the Respondent Nos. 1-4 have allowed the Respondent No.5 to continue its activities of providing coaching/ tuition for Williamsburg University unabated without even investigating into the matter as to whether such University exists; there are allegations of innocent students being defrauded in the name of providing tuition for foreign University degree; the Respondent No. 5 has also not taken any permission from the Government as per sections 3 and 39 of the Private Universities Act; the committee constituted by the Respondent No.6 after making on the spot survey have not found the Respondent No.5’s institution satisfactory; the Respondent Nos. 1-4 have thus fallen short of their responsibilities in taking appropriate action against the said Respondents and from that point of view this Rule has merit.

The Respondent Nos. 1-4 are therefore directed to frame their rules under section 39 of the Private University Act within 02(two) months (of receipt of copy of this judgment) so that private institutions providing coaching/ tuition for foreign degrees may be brought within the control and discipline of the Government. …(34 and 35)

Mr. Manzil Murshid Advocate

. . .For the Petitioner .

Ms. Kazi Zinat Huq D.A.G. with
Mr. Shams-ud Doha Talukder A.A.G.

. . . For the Respondent No.1 .

Mr. Masud Ahmed Sayeed with
Mr. Syed Ejaz Kabir Advocates

…For the Respondent No.5

Mr. A.B.M. Bayezid Advocate

….For the added Respondent No.6

Writ Petition No. 7407 of 2011

JUDGMENT

Tariq ul Hakim, J:

Rule Nisi has been issued calling upon the respondents to show cause as to why failure to take necessary legal action against the institution, which is allegedly resorting to fraud against the students in the pretext of conferring U.K. law decrees, without having any affiliation/ approval of any authenticated University of the United Kingdom should not be declared illegal and without lawful authority and why a direction should not be given upon the respondents to prepare a guide line for controlling the fraud purported by unauthorized educational institutions in the pretext of providing foreign law degrees and and/or pass such other or further order or orders as this Court may seem fit and proper.

This is a public interest litigation.

It is stated that the petitioner, a conscientious and law abiding citizen of Bangladesh was a student of Chancery Academy of English Law, an institution owned by the Respondent No.5 The petitioner and her husband got admitted to the said Academy by paying approximately Taka ten lac through Bank cheques as fees; because of the friendly relationship of the petitioner with the Respondent No. 5 the Academy did not provide them any receipts for the money. After completion of their first year of study Respondent No.5 awarded them Certificates of Diploma in Law. Being suspicious the petitioner enquired about the Academy but found no definite and satisfactory reply from U.K. authorities. Examinations of U.K. Universities are normally conducted by the British Council and Certificates of the British University Degrees are delivered through the British Council. In the case of Chancery Academy of English Law all the examination, questions are allegedly sent by e-mail from the University of Williamsburg to Chancery Academy of English Law and the examination papers after being scanned are sent back to the University by e-mail for gradation. It is further stated that when the U.K. authorities were asked to verify the Petitioner’s Certificates they failed to trace their authenticity; thereafter the petitioner sent an e-mail to the Bar Standards Board London enquiring about the status of Williamsburg University and whether she could get herself admitted to study and qualify for the English Bar. The Bar Standards Board asked the petitioner to contact U.K. NARIC but NARIC informed her that the LL.B. degree of William-sburg University was not approved by the Bar Standards Board. She was further advised to contact the University of Manchester regarding the authenticity of the Certificates provided by the Respondent No.5 and when contacted the Senior International Officer of the University of Manchester confirmed that the said University had no agreement with anybody regarding conducting LL.B. course and giving Certificates in Bangladesh. She also confirmed that the University of Manchester had nothing to do with the Chancery Academy of English Law or the Respondent No.5. The Petitioner   thereafter made further inquiries and came to know about the Universities and Colleges in the U.K which was approved by the Council of Education U.K. but that list did not include the name of Williamsburg University, thus confirming that such University did not exist.

It is further stated that a report in the daily “Manob Zamin’ on 31^st July, 2011 contained an article about Chancery Academy of English Law with the heading “Chancery Academy of English Law: False University of British Law Degree”; the report stated how the Respondent No.5 was defrauding students in the name of education. It has been further stated that the Respondent No.5 invited Senior Judges of the Supreme Court, the Education Minister, Vice Chairman of the Bar Council and others to a “Convocation” Ceremoney where Certificates of Williamsburg University were handed over recently.

It is further stated that the Petitioner has also filed a criminal case at Dhanmondi Police Station against the Respondent No.5 for cheating and fraud and the same is under investiga-tion. It is further stated that many students are getting cheated by the Respondent No.5 and as such the Respondent nos. 1-4 being in the service of the republic have a duty to take steps so that the public do not get defrauded . It is further stated that the Respondent No.5 is cheating many innocent people like the petitioner by extracting huge amounts of money from them in exchange of giving false Certificates of U.K. Law Degree and/or by promising to award Law Degree of U.K. University including the University of Williamsburg U.K. due to the inaction of the Respondent Nos. 1-4. Being cheated herself the Petitioner claims to represent similar members of the public and has come to this Court and obtained the present Rule.

The Respondent No.5 has filed Affidavit -in-Opposition, Supplementary Affidavit-in-Opposition and a number of pleadings denying the material allegations in the Writ Petition and is contesting this Rule alleging inter alia that the Respondent No.5’s institution Chancery Academy of English Law provided her tuition whereby she was conferred Diploma in Law certificate of Williamsburg University and whereby her contention that she lost her valuable educational years is false and baseless. It is further stated that Chancery Academy of English Law was started in 2003 for imparting education on English Law in Bangladesh through distance learning programes and since its inception it has been offering distance learning LL.B. degrees of the University of London, University of Northhumbria and University of Williamsburg with name and fame . It has successfully produced hundreds of law graduates who are practicing law either in local or in foreign jurisdiction and as such the question of thousands of students being defrauded by the Respondent No.5 through distance learning programe is not true. It has been further stated that this Respondent is not offering LL.B. degree of the University of Manchester, U.K. but offering an assignment based distance learning LL.B. degree of the University of Williamsburg a well reputed U.K. University situated at the heart of the City of Manchester, U.K. (III Piccadidly, Manchester MI ZHX) whose distance learning LL.B. programes is recognized all over the world. The respondent no. 5 denied the petitioner’s paying Taka ten lac as tution fee to the Respondent No.5 and that not having any receipt for such huge amount of money her claim is not sustainable. It has been further stated that UPP Universities are offering assignment based distance learning programmes in all over the world but the petitioner being unfamiliar with the things that the certificates offered by the University are false and fabricated. It has been further stated that the University of Williamsburg is an U.K. University under the University Development Programme (UDP) and there are several other Universities under the U.D.P. operating in more than 80 countries of the world for more than a decade and that there are around 8000 students all over the world accomplishing their degrees from the University of Williamsburg. It is further stated that the Respondent No.5 or his institution has committed no crime with the students and that the allegation against the Respondent No.5 being a disputed question of fact the instant Rule is not maintainable .

The petitioner in his Affidavit-in-reply has stated that she is innocent victim of the fraudulent and deceptive operation of the Respondent No.5 and that she was awarded the Diploma certificate from a fake University named Williamsburg University. It is further stated that the so-called Williamsburg University which is owned by Global has not given any authority to the Respondent No.5 to provide distance learning on online degrees and the onus is upon the said respondent to prove that such authority has been given to the said respondent no. 5. It is further stated that even e-mail site of the University there is no details regarding staffs and office of University as well as even the curriculum which is pursued by the said University and that if it is U.K. University and why the Respondent No.5 is unable to show permission from the U.K. Government for such institution. It is further stated that the British Council was approached by the petitioner and they were also unable to comment as to the existence of   Williamsburg University in the U.K. which indicates that such institution does not exist. It is further stated that the Respondent No.5 needs to get proved of his pleading that his institution or Williamsburg University has got authority from Apollo Global for that Williamsburg University is operating in every countries or that he has any authorization from Williamsburg University to provide coaching/ tution . It is further stated that there is no list of faculty of the same Williamsburg University on its website although the Respondent No.5 himself has got list of faculty for his Chancery Academy of English Law. It does not also provide details as regards staffs of the University and its office. It has been further stated that Williamsburg University is not a foreign University at all but a fake institution and the Respondent No. 5 is running Chancery Academy of English Law to deceive the students and misappropriate their money. It it is further stated that the list of students provided by the Respondent No. 5 who have studied at his Chancery Academy of English Law does not prove the existence of Williamsburg University and that the said students may be studying for degrees of Northumbria and London Universities.

In another Supplementary Affidavit the petitioner has annexed Annexure M which shows that there are 157 institutions in the U.K. having degree awarding powers recognized by the U.K. Government but among these 157 institutions, the name of Williamsburg University does not appear which indicates that it is not a British University and does not have any degree awarding authority and is not recognized by the U. K. Department of Business, Innovation and Skills.

The Respondent No.1 in its Affidavit-in-Opposition has stated that after receiving a copy of the Rule and interim order of this Court it constituted a committee to monitor the educational institutions of the Dhaka City   providing tuition for overseas law degrees and it has submitted a Report along with recommendations to the said Ministry.

In a Suppelmentary Affidavit the Report is annexed as Annexure III which shows that the committee was formed by Professor Dr. Md. Muhibur Rahman as Member of Convener , Professor Abdul Mannan Akhand as Member, Professor Md. Habibur Rahman as Member, Professor Dr. Shahid Akhter Hossain as Member, Professor Dr. Yousuf Ali Mollah as Member, Professor Dr. Farid Uddin Ahmed as Member, Joint Secretary ( University ) as Member and Md. Khaled as Member Secretary.

In the Report it is stated that the committee visited 12 institutions in Dhaka City and found that they were providing tution in the name of coaching for higher degrees of foreign Universities. It is further stated that none of these institutions entered into any agreement with the Government and were providing coaching /tution at their own initiative. Regarding some of these institutions the committee made the following comments “Looks like a fake organization”. “It’s not bad as a coaching centre/tuition provider.” “A vibrant and promising Organization with enough infrastructure and effective man power.” “It seems the college is under good management.” In the case of the Respondent No.5’s institution   it has been described as “ Completely a fake Organization. There is no way that the place can be characterized as a school or even a coaching centre.” The said report was subsequently published in the daily Newspaper as a public notice in compliance with this Court’s order. The Respondent No.6 however does not appear to have taken any further steps . The relevant portion of the report is reproduced :

মতামত ও সুপারিশঃ

“১। বেসরকারী বিশ্ববিদ্যালয় আইন ২০১০ এ বিদেশী বিশ্ববিদ্যালয়ের শিক্ষা কার্যক্রম পরিচালনার বিষয়ে বিধি প্রণয়নের বাধ্যবাধ্যকতা রয়েছে। কয়েকটি সরকারের অনুমোদন নিয়ে বিধিসম্মতভাবে বিদেশী বিশ্ববিদ্যালয়ের উচ্চশিক্ষা কার্যক্রম (CBHE- Cross Border Higher Education) পরিচালনা করতে আগ্রহী, এবং তাদের যথেষ্ট উন্নতমানের অবকাঠামো রয়েছে। সুতরাং ইআএউ বিধিমালা প্রণয়ন করে তাদেরকে এই সুযোগ দেওয়া যেতে পারে। বিশ্ববিদ্যালয় মঞ্জুরী কমিশন হতে এ বিষয়ে খসড়া প্রণয়ন করে শিক্ষা মন্ত্রণালয়ে প্রেরণ করা হয়েছে। যত দ্রুত সম্ভব উক্ত বিধি প্রণয়ন করে প্রতিষ্ঠান সমূহকে আইনের আলোকে তদারকী ও তত্তাবধানের আওতায় নিয়ে আসা বাঞ্চনীয়। তবে খসড়া বিধিমালায় Study centre এর জন্য ন্যূনতম ৩০০০ (তিন হাজার) বর্গফূট Floor space এর প্রস্তাব করা হয়েছে। কমিটির কাছে ৩০০০ (তিন হাজার) বর্গফুট Floor space অপ্রতুল প্রতীয়মান হয়, এবং কমিটি ন্যূনতম ঊরষষক্ষ ড়সতদন ১০,০০০ (দশ হাজার) বর্গফুট নির্ধারণ করার সুপারিশ করছে।
২। বিধিমালা প্রণয়নের পর আইনের আওতায় আসা এসব প্রতিষ্ঠান সমূহের কার্যক্রম তদারকী ও তত্তাবধানের কাজে কমিটি কর্তৃক অনুমোদিত ফরমেটটি ব্যবহার করা যেতে পারে।
৩। উপরের ২ এ উল্লিখিত পরিস্থিতিতে বিদেশী বিশ্ববিদ্যালয়ের নামে ঢাকা শহরে অননুমোদিত ডিগ্রি প্রদানকারী প্রতিষ্ঠানের তালিকা প্রস্তুতের বিষয়ে শিক্ষা মন্ত্রণালয় প্রয়োজনীয় ব্যবস্থা গ্রহণ করতে পারে। এই উদ্দেশ্যে কোন প্রতিষ্ঠান/ব্যক্তির সাথে মন্ত্রণালয় চুক্তি সম্পাদন করতে পারে।
৪।আদালতের স্টে অর্ডারের ভিত্তিতে যেসব প্রতিষ্ঠান এদেশে শিক্ষা কার্যত্র্রম পরিচালনা করবে সেসব প্রতিষ্ঠানের শিক্ষার ও প্রদত্ত ডিগ্রির মান যাচাই করে প্রতিবেদন দাখিল করার জন্য শিক্ষা মন্ত্রণালয় হতে কোন বিশেষজ্ঞ ব্যক্তি বা প্রতিষ্ঠানকে দায়িত্ব দেওয়া যেতে পারে।
৫। অধিকাংশ প্রতিষ্ঠানই আবাসিক এলাকায় স্থাপিত হয়েছে। শিক্ষা মন্ত্রণালয় থেকে ঢাকা শহরের ভি আই পি সড়ক, ব্যস্ত সড়ক ও আবাসিক এলাকায় বেসরকারী বিশ্ববিদ্যালয় স্থাপন করা যাবেনা- এমর্মে প্রজ্ঞাপন জারী করা হয়েছে। এ জাতীয় প্রতিষ্ঠানের ক্ষেত্রেও একই নিষেধাজ্ঞা কার্যকর করা বাঞ্চনীয়।
৬। কমিটির কাছে এই বিষয়টি লক্ষণীয় মনে হয়েছে যে, Study centre (Chancery Academy of English Law Road No.4, #House No. 14, Dhanmondi R/A, Dhaka- 1209) টি সম্পর্কে মহামান্য আদালতের রীট পিটিশন দায়ের করা হয়েছে, পরিদর্শন প্রতিবেদন অনুযায়ী তার অস্তিত্ব পাওয়া যায় নাই। কমিটি মনে করে যে এই ধরনের আরো অনেক ভূয়া প্রতিষ্ঠান অবৈধ শিক্ষা কার্যত্র্রম চালিয়ে যাচ্ছে।
৭। ইউজিসি ও সরকারের প্রজ্ঞাপন (সংলগ্নী-৪) এবং আইনের বিধান উপেক্ষা করে এর বিজ্ঞাপন প্রদান অব্যাহত রয়েছে বলে প্রমাণ পাওয়া গিয়েছে। এই বিষয়ে সরকার এর সংশ্লিষ্ট সংস্থার নজরদারীর প্রয়োজন রয়েছে বলে কমিটি মনে করে।”

In its Affidavit-in-Opposition and Supplementary Affidavit the Respondent No. 6 University Grants Commission has stated that the Respondent No.5 without obtaining permission from the Government and approval of the Respondent No. 6 in respect of the syllabus and course content is providing coaching to the public in Chancery Academy of English Law. This is a gross violation of   section 3(1) and 39 of the Private University Act, 2010 and punishable under section 49 of the said Act. The Respondent No. 5 without such permission has conducted the aforesaid law course and provided certificates to the students. It is further stated that the petitioner paid taka ten lac to the Respondent No.5 as tuition fee but the British High Commission has not confirmed the existence of Williams-burg University. The certificates awarded have got no validity. It is further stated that the Ministry of Education in their report has confirmed that Chancery Academy of English Law is completely a fake Organization.

Mr. Manzil Murshid, the learned Advocate for the Petitioner submits that   the respondents except the Respondent No.5   are public servants and they are under a duty to monitor the activities of the educational institutions providing tuition to the members of public in the name of coaching for higher degrees and take steps against the fraudulent institutions who have not complied with the law. The learned Advocate further submits that in the instant case the said respondents have not taken any steps agaist the Respondent No.5 or his institution Chancery Academy of English Law which is committing fraud and forgery against the students and the members of the public. The learned Advocate for the petitioner further submits that   the Respondent No.5 has provided false Certificates to the petitioner   and committed a crime under the Penal law and the respondent nos. 1-4 have failed to take appropriate steps against the Respondent No.5 by shutting down their Academy and such willful inaction and neglect of the respondents should be declared unlawful. The learned Advocate further submits that every student who gets admitted to a institution providing tuition for U.K. degree has a legitimate expectation that he will obtain a degree from a U.K. University and the Respondent Nos. 1-4 are under a duty to take appropriate steps so that such students are not defrauded while they have filed in the instant case.

Ms. Kazi Zinat Huq D.A.G. with Mr. Shams-ud Doha Talukder A.A.G. appearing on behalf of the Respondent No.1 submits that the Government has complied with the interim order of this Court by constituting a 8 member committee under the head of a Member University Grants Comission, to investigate into the activities of the institutions providing U.K. law degrees in Dhaka City including the institution of the Respondent No.5 and has submitted a report to the Government a copy of which is annexed as Annexure III. The learned Deputy Attorney General further submits that under Private University Act, 2010 permission has to be obtained from the Government by all the institutions providing University degrees and since no such permission was obtained by the Respondent No.5 he may be dealt with in accordance with law.

Mr. A.B.M. Bayezid, the learned Advocate for the added Respondent No.6 University Grants Comission submits that the Respondent No.5 along with several other institutions are providing coaching/tuition for foreign U.K. Law degrees in Dhaka City   without taking permission from the Government in breach of sections 3 and 39 of the Private University Act, 2010. The learned Advocate therefore submits that although some institutions are functioning by obtaining interim orders from the High Court Division pursuant to Writ Petitions filed by them, the Respondent No. 5 does not have any such Court Order in its favour and as such is operating totally unauthorizedly. The learned Advocate further submits that the certificate of Diploma awarded by the Respondent No. 5 on behalf of the Williamsburg University is totally false and there is no such institution by that name. The learned Advocate has also referred to different misrepresentations by the Respondent No.5 and submits that this institution should be shut down.

In reply to all these allegations, Mr. Masud Ahmed Sayeed with Mr. Syed Ejaz Kabir, the learned Advocate for the Respondent No.5 submits that Williamsburg University operates in 80 countries of the world. He has drawn our attention to Annexure ‘N’ a brochure of Appollo Global wherein in the heading it says “ studied in the U.S.A. , studied in the U.K., studied in the world” and submits that the said University operates courses in a number of subjects. He has also submitted that communication is made by the University and the Respondent No.5 through the Internet; questions papers   are sent to the Respondent No.5 through the internet; after the students complete their assignments they are sent to the University by the Respondent No.5 through the internet. The learned Advocate further submits that due to the advancement of technology, this is one of the latest forms of obtaining University education and more than 8000 people around the world are registered with the said University and are being provided education in this way. He further submits that the certificate awarded to the petitioner is genuine. The learned Advocate strongly disputes the maintainability of the instant Writ Petition on the ground that it concerns disputed questions of fact which cannot be settled in this writ jurisdiction . He further submits that since there is a Criminal case filed by the petitioner agaist the Respondent No.5 and as such the petitioner should not be allowed to pursue his grievance in two forums simultaneously. The learned Advocate further submits that Williamsburg University is located in the City of Manchester , U.K. and that even though its name does not appear in the lists of   recognized bodies in U.K., nevertheless it exists with degree awarding powers . In this regard he has drawn our attention to a certificate attested by the British Council (Annexure X-14) and claims that the certificate is genuine and the University exists otherwise the British Council would not have attested the certificates . Finally the learned Advocate submits that the instant matter is an issue between the Writ Petitioner and the Respondent No.5 and cannot be called a public interest litigation and as such the Rule is liable to be discharged on that ground alone.

Mrs. Rabeya Bhuiyan of Bhuiyan Academy, Mr. Khaled Hamid Chowdhury of London College of Legal Studies (South), Ms. Fatema Anwar of Dhaka Centre for Law and Economics as well as Mr. Z. I. Khan Panna of Bangladesh Bar Council   with the leave of this Court have addressed us to assist this Court on this matter. All of them excepting Mr. Z.I. Khan Panna have submitted that their institutions are providing tuition for LL.B. degrees of the University of London. The degree is an external one and the students have to get themselves admitted to the Universities on their own initiative on payment of tuition fees. The British Council arranges for the LL.B. examination each year strictly under their supervision. Question papers are sent from the University of London to the British Council and after the examinees complete their answer on the answer script they are sent back to the University through the British Council for gradation. The examinations of LL.B. degree are held all over the world on the same day on the same subject and the institutions that provide tuition have got nothing to do with the same. After successfully completing three/four years of study and only after obtaining requisite grades   in written examinations the University awards the degrees to the students . The Certificates are sent through the British Council and handed over to the successful students. The institutions providing coaching have no control over the matter and the students are at liberty to join or leave any institution at their free will.

Mr. Khaled Hamid Chowdhury, the learned Advocate pointed out that they had applied on 9.3.2009 and again on 9.11.2010 to the Government for permission   to provide tuition for LL.B. Degree of London University but the Deputy Secretary of the Ministry of Education in his reply dated 9.3.2009 said that there was no scope for providing permission in the present set up. He further submits that 4 institutions providing coaching/tuition of LL.B. degree of London University filed Writ Petitions against the notices issued by the Government and obtained interim orders from the Court to continue. It has been pointed out by the learned Advocate that section 3(2) and 3 of the Private University Act requires permission from the Government to set up any institution to provide coaching/tuition for any Diploma or any degree. Similarly section 39 of the said Act states that none is allowed to provide coaching/tuition for foreign degrees without prior permission of the Government. Section 39(2) of the said Act says that the Government will frame rules to give effect to the aforesaid provisions. Since Rules have not yet been framed, the learned Advocate submits that their respective institutions are providing coaching/tuition and the Government under the said Act has got no authority to interfere. All the learned Advocates are however of the opinion that the Government should frame guidelines or rules which the institutions will be bound to comply.

Mr. Z.I. Panna Khan, the learned Advocate appearing on behalf of the Bangladesh Bar Council submits that although certain candidates with law degree from Williamsburg University were allowed to enroll as Advocates by the Bangladesh Bar Council it was not on the basis of degree from University of Williamsburg but because of having a Bachelors degree in law from some other University. He categorically submitted that the Bangladesh Bar Council does not recognize the Bachelors degree of Williamsburg University   for being eligible to qualify as an Advocate.

Heard the learned Advocates, perused the Writ Petition, Supplementary Affidavits, Affidavits-in-Opposition, Supplementary Affidavits-in-Opposition , Affidavit-in- reply and the Annexures.

Maintainability of the Rule has been challenged by the learned Advocate for the Respondent No.5 firstly on the ground that facts are disputed and secondly since the Petitioner has filed a Criminal Case against the Respondent No. 5 for cheating etc. which is pending she should not be allowed to pursue two types of litigation on the same subject at the same time.

Let us address the point of maintainability first. It is alleged by the petitioner that she paid taka ten lac to the Respondent No.5 but that is denied by the respondent. Similarly, the petitioner’s claim that the certificate is false is also denied by the answering Respondent no. 5. However it is admitted by the parties that the petitioner did undertake a course of study at the Respondent No.5’s Chancery Academy of English Law for a Diploma/ Degree of the Williamsburg University of U.K. The instant Rule is about the Respondent Nos. 1-4’s action or inaction relating to this matter and a prayer for a direction that they should monitor the provision of tuition by such institutions. From that point of view we find no reason why the Rule cannot be maintainable. Secondly even if a Criminal Case is filed by the petitioner for cheating etc., we see no bar in maintaining this Writ Petition for judicial review for the administration’s alleged inaction.

The University of London was established more than 200 years ago. Its external programmes now known as International Programmes have allowed students from all over the world to study for degrees of the said University without actually traveling to the U.K.. The LL.B. degree of the University of London is an internationally recognized degree of acceptable standard in the study of law. Holders of the said degree are eligible to sit for the Bar Examinations of the U.K. to qualify as a Barrister-at-Law as well as appear in the Bar examinations of many countries of the world including Bangladesh for enrolment as Advocates. A number of institutions in Bangladesh under private initiative has also been providing tuition for the LL.B. degree of London University. This has provided an opportunity to many in Bangladesh   to go to U.K. and get admitted to the Bar Vocational course and qualify as a Barrister-at-Law and save expenses. At a   time when state Universities in Bangladesh are finding it difficult to accommodate increasing numbers of students qualifying in secondary and higher secondary examinations these private institutions are providing students’ the opportunity to study for and get U.K. law degrees.

Private Universities have also come into existence in Bangladesh to fulfill the growing demand for University education. These Universities should not be confused with institutions providing tuition for foreign University degrees.Private Universities have their own faculties and individual degree awarding powers. Their activities are supervised by the University Grants Commission and all the academic   courses have to be approved by the said Commission.

Since these institutions (both private University and institutions providing private tuition for foreign degrees ) have opened their doors to the public to provide tuition in exchange of money, the Government has a duty to monitor their activities to ensure that the citizens do not get defrauded; there will always be unscrupulous people offering short cuts and allurements to students in the name of providing education but the Government has a duty to put in place adequate safe guards so that unscrupulous persons do not cheat unsuspecting students.

Respondent No. 5 is alleged to have done just that. The Petitioner claims to have lost several years of her life studying for a degree from a U.K. University but she later came to know   that the said University has no existence in the U.K.. The Certificate given to her is alleged to be fake and the degree not recognized; in addition she has been cheated of several lacs of taka. Although the learned Advocate for the Respondents has strongly denied the allegation of fraud and cheating he could not satisfy this Court about the location of the main campus of Williamsburg Univer-sity. Nothing is before us to indicate that it is a British University. In fact in the list of 157 degree awarding bodies of the U.K. the name of Williamsburg University does not appear. A degree awarding body in the U.K. derives its authority either from Royal Chater or Act of Parliament or by an order of the Privy Council. There is nothing before us to show how   Williamsburg University acquired its degree awarding status. Thus we are not satisfied about Williamsburg University being a British University. We do not say that Williamsburg University does not exist at all. It may well exist in some other country and have affiliated offices in the U.K.   and provide a web based (internet based) distance learning programme. It is however clear that its LL.B. Degree is not recognized by the Bar Standards Board of U.K. as well as the Bangladesh Bar Council . In that view of the matter, apart from self satisfaction and self education no useful purpose will be served in pursuing the LL.B. course of Williamsburg University. It is however for the University Grants Commission of Bangladesh to formally approve or disapprove the said LL.B. course of William-sburg University; thus on the face of evidence before us the Respondent No.5 Chancery Academy of English Law should not be allowed to provide coaching/tuition for any course of Williamsburg University until specific approval is obtained from the University Grants Commission. We do not wish to comment on the allegation of fraud and fake certificate since Criminal case is pending against the Respondent No.5 and no doubt evidence will be adduced in Court on the basis of which the concerned Court will take its decision.

The learned Advocate for the petitioner as well as the Respondent No.6, University Grants Commission has submitted that the Respondent No.5’s Chanchery Academy of English Law be ordered to be shut down. The learned Deputy Attorney General has also submitted that the Respondent No.5 is providing tution to students for foreign University Degree in violation of the provision of Private University Act, 2010 for which appropriate order may be passed against it. In response to such submissions from the Bar it must be said that it is not the work of this Court sitting in writ jurisdiction to shut down educational institutions. The State machinery is adequately empowered to do the same and it should exercise such power after examining all the facts in each case.

The Respondent No.6 has made a spot survey of a number of institutions including the Respondent No.5’s Chancery Academy of English Law and has made observations that some of them are completely fake etc. It is unfortunate that the said respondents after having made their survey and coming to a conclusion that the institutions are fake have not taken any steps against them. Accordingly they are urged to take appropriate steps pursuant to their findings in accordance with law within 60(sixty) days from the date of receipt of this judgment.

The Respondent Nos. 1-4 are further directed to form an appropriate committee to monitor the activities of institutions in Bangladesh providing tuition for degrees of foreign Universities so that innocent students do not get defrauded by unscrupulous persons.

In our opinion none should be allowed to start educational institutions and open their doors to the public and take money from innocent persons in return for providing tuition for a foreign law degree or course without complying with certain formalities .Although as stated earlier Bhuiyan Academy, Newcastle Academy, London School of Legal Studies etc. have done a creditable and praiseworthy work in setting up their institutions for providing tuition for the LL.B. degrees of Universities   of London, Northhumbria, Wolverhamption etc. at the same time we see institutions like Chancery Academy of English Law allegedly providing courses of so called Williamsburg University which serves no useful purpose. The Government is under a duty to make appropriate legislation and ensure that on the one hand students have access to study for courses of foreign University degrees in Bangladesh on the one hand and at the same time ensure that such courses are conducted genuinely. Such legislation should not make it difficult for institutions to be set up under private initiative. Formalities should be kept to a minimum. The authority should be satisfied firstly that the tuition is provided for a degree of a recognized University and that it will be useful for the student in Bangladesh as well as abroad to pursue further studies or to qualify for Government service or professional career (e.g. the Bangladesh Bar Council ) Secondly, the tuition provider should have sufficient infra-structure facilities for the tuition and coaching i.g. if the degree requires laboratory and clinical experiments then the tuition provider should have a proper laboratory; in other cases there should be adequate lecture and tutorial rooms and access to a well equipped library containing sufficient reading materials on the subject.

Thirdly the Syllabus and course content   of the subject for which the degree is being pursued should be at least of a standard compatible to a similar curse of study in a University in Bangladesh covering the same number of years/ months of study.

As already stated these tuition providers are providing opportunity to our youth to obtain foreign University Degrees without requiring the students to go outside Bangladesh. This initiative should be encouraged by the Government and other state authorities including the Respondent Nos. 1-4 and 6. The requirements should not be financially ownerous and deprive intending students to obtain the benefit of foreign degrees by studying in Bangladesh.

By monitoring their activities and framing legislation in the form of Rules and Guidelines it is hoped that the number of such tuition providers under private initiative will not only increase but the quality of their tuition and services shall improve for the benefit of the large numbers of our young generation and make them more qualified and equipped to contribute to the development of our country.

It appears that the Respondent Nos. 1-4 have allowed the Respondent No.5 to continue its activities of providing coaching/ tuition for Williamsburg University unabated   without even investigating into the matter as to whether such University exists; there are allegations of innocent students being defrauded in the name of providing tuition for foreign University degree; the Respondent No.5 has also not taken any permission from the Government as per sections 3 and 39 of the Private Universities Act ; the committee constituted by the Respondent No.6 after making the on the spot survey have not found the Respondent No.5’s institution satisfactory; the Respondent Nos. 1-4 have thus fallen short of their responsibilities in taking appropriate action against the said Respondents and from that point of view this Rule has merit.

The Respondent Nos. 1-4 are therefore directed to frame their rules under section 39 of the Private University Act within 02(two) months (of receipt of copy of this judgment) so that private institutions providing coaching/tuition for foreign degrees may be brought within the control and discipline of the Government.

Accordingly the Rule is made absolute in part along with all the aforesaid observations and directions which will be in the form of continuous Mandamous.

In view of the harassment to the Petitioner we are inclined to award costs and accordingly the Respondent No.5 is directed to pay a sum of Taka 1,50,000/- (one lac fifty thousand) to the petitioner.

Ed.

Rekha Datta and others Vs. Chittagong Urban Co-operative Bank Ltd

Case No: CA 170 of 1478 from FA 68 of 1962.

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Ahmed Sobhan,Bimalendu Bikash Roy Chowdhury,,

Citation: 46 DLR (AD) (1994) 133

Case Year: 1994

Appellant: Rekha Datta and others

Respondent: Rekha Chittagong Urban Co-operative Bank Ltd

Subject: Property Law,

Delivery Date: 1980-03-10

Rekha Datta and others Vs. Chittagong Urban Co-operative Bank Ltd
46 DLR (AD) (1994) 133

Supreme Court
Appellate Division
(Civil)

Present:
Fazle Munim J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J.

Rekha Datta and others.........................Appellants
Vs.
Chittagong Urban Co-operative Bank Ltd ..................Respondent

Judgment
March 10th, 1980.

Code of Civil Procedure (V of 1908)
Order XXXII rule 3

The duty of the guardian ad litem continues throughout the execution proceeding. By the grossly negligent act of the guardian of the minors had suffered substantial injury. Their appeal is therefore allowed and the suit decreed.

Cases Referred to-
Mst. Siraj Fatima Vs. Mahmood Ali AIR 1932 (All) 293; Iftekhar Hussain Vs. Beant Singh AIR 1946 (Lah) 233.

Lawyers Involved:
Ahmed Sobhan, Sr. Advocate, instructed by Aminul Huq, Advocate-on-Record - For the Appellants.
BB Roy Chowdhury, Advocate, instructed by Abdur Rab II, Advocate-on-Record - For the Respondent

CA 170 of 1478 from FA 68 of 1962.

Judgment

Badrul Haider Chowdhury J.- This appeal is directed against the judgment and order passed by the High Court Division in FA No. 68 of 1962.

2. The appellants are plaintiffs. They filed a suit being Other Suits No. 60 of 1959/20 of 1961 in the Court of Subordinate Judge, 2nd Court, Chittagong for declaration and confirmation of possession on the ground, inter alia, that the sale in question in mortgage execution case is fraudulent one and the plaintiffs were not made parties therein and, as such, the sale is a nullity and the minors were not represented in the said execution case and there is gross under-valuation and the sale was effected at the instance of one Suren Datta, a tenant of the building in question in collusion with the defendant‑bank. The defendant denied the allegation
and contended that the suit is not maintainable in the present form; that the suit is barred under section 42 of the Specific Relief Act and the plaintiffs have no subsisting interest in the disputed property and that the plaintiffs were properly represented in the execution proceeding in question and all the processes were properly served.

3. The trial Court dismissed the suit and appeal that was filed was also dismissed by the High Court Division. A good number of points were raised before the High Court Division, namely, (a) that the heirs being minors were not represented in the Court according to the mandatory provision laid down in sub‑rule (4) of rule 3 of Order 32 of the Code of Civil Procedure and their interests were not protected by the Court guardian; (b) that the sale in question was held fraudulently by suppressing all sale processes; (c) that there had been gross under-valuation of the property; (d) that the legal heirs of the deceased judgment debtor were not brought on record, instead, some fictitious names were given. The last point was argued vehemently before the High Court Division that the heirs of Nanibala were not substituted in the execution case and the High Court Division has erred in law in holding that the heirs of Nanibala were duly substituted although there is no such proof.

4. Leave was granted to consider whether the heirs of Nanibala were substituted in the execution case and whether the High Court Division was right in holding that the heirs of Nanibala were duly substituted and whether the mis‑description of one of the heirs, namely, that Kironbala being substituted as daughter of Nanibala as Usha Rani and whether such mis‑description has caused any prejudice.

5. Facts briefly are as follows: The disputed property was sold in auction in Mortgage Execution Case. No. 37 of 1954 of the First Court of Subordinate Judge, Chittagong. This property belonged to Nanibala, mother of the appellants who died leaving the plaintiffs as her heirs and at the time of her death the plaintiffs were minors. The plaintiff's father borrowed some money from the defendant-respondent bank and their mother stood surety and the disputed property was kept as security. The plaintiffs' case was that they were not aware that the disputed property was sold in Mortgage Case No. 37 of 1954; that after inspection of the record the plaintiffs came to know that the defendant bank instituted a Mortgage Dispute Case No. 55 of 1948‑49 against the father of the plaintiffs and obtained an award on 20.6.49 and Mortgage Execution case No. 37 of 1954 was started to realise the awarded money; that after the death of Nanibala her three daughters, namely, Kironbala Ghose, Manju Bala and Hashu Bala were substituted and these minors were represented by the Court guardian Mr. Manir Ahmed, a pleader.

6. Plaintiffs' case is, that they are three sisters, Usha, Rekha and Sikha but in the execution case above named fictitious names have been mentioned.

7. Evidence was led by both the parties and the trial Court came to the conclusion that the sale certificate, Ext. N shows that Kironbala, Manju Bala and Hashu Bala were made parties in place of deceased Nanibala Ghose. The trial Court considered the version of the plaintiffs that they were never known by these names and they produced their documentary evidence to show that they are known as Rekha, Sikha and Usha. Certified copies of the school register, school certificate and Immigration Certificate have been produced in support of the contention of the plaintiffs. The trial Court, however, built up a third case by saying:
"It is well known to everybody that in our country most of the persons have at least two names …..They must have pet names and I am inclined to hold that Kiron, Manju and Hasu were the nick names of the plaintiffs. I think description by nick names is not irregular in a proceeding where the father's name is given"
The trial Court came to such conclusion while considering the evidence of PW 3 "who stated that he had to admit in his cross‑examination that his daughters have nick names but he, however, says that he does not know if the plaintiffs have any other names". Then the trial Court considered the evidence and observed:
"One party says that the plaintiffs are known as Usha, Rekha and Shika while the other party says that they were known as Kiron, Hasu and7Manju. Neither party says that if it is their nick names or if they had two or more names".
Notwithstanding such evidence the trial Court came to the conclusion "But I am convinced that the plaintiffs have nick names and they were also known as Kiron, Hasu and Manju". Reliance was placed on Exhibit (J) which is the copy of the application for substitution filed in the partition suit by DL Ghose, brother of Roy Bahadur TL Ghose, the father of the plaintiffs. In this application the daughters of Roy Bahadur TL Ghose have been mentioned as Usha Rani alias Chanchola, Rekha alias Manju and Shika alias Hasu. The trial Court considered that so far as Manju and Hasu are concerned they have been sufficiently identified by their other names, namely Rekha and Shika respectively but so far as Usha Rani is concerned, the difficulty is that she has a nick name like Chanchola, whereas, evidence was given that Usha was also known as Kiron and in this view of the evidence it came to conclusion that plaintiffs were known as Kiron, Hasu and Manju and in this view of the matter it was held that they were correctly represented in the execution case.

8. As to the fraud, the trial Court considered that mere allegation could not establish fraud and it did not find any evidence which would show that the bank in collusion with some persons had sold the house in auction. In this view of the matter the suit was dismissed.

9. The High Court Division considered the evidence and found that Roy Bahadur TL Ghose had 3 daughters by his wife Nanibala Ghose and these daughters were named as Usha, Rekha and Shika. The High Court Division noticed that the evidence disclosed that the difference in the name of Usha Rani as transpired from the evidence as Kironbala but from Exhibit (J) inference was drawn that she was also known as Chanchola and the High Court Division also inferred that the evidence of DW 2 shows that Kironbala was known as Chanchola.

10. Now the question comes actually what happened about the names of all these plaintiffs. They have given their names as Rekha, Shika and Usha. In execution case the names were substituted as Kironbala, Manjubala and Hasu Bala. In Exhibit (J) reference is made that Shika alias Hasu, Rekha alias Manju, whereas. Usha is alias Chanchola. In the written statement Usha has been mentioned as alias Kiron Bala. This uncertainty in the description of the substituted heirs whether had caused any prejudice to them. Be it noted that they were minors and they were represented by a court guardian Mr. Manir Ahmed Chowdhury. It at once comes for consideration whether the plaintiffs were duly represented in the execution proceeding by their court guardian. The High Court Division considered the evidence that the court guardian did not enquire as to what property was advertised for sale, nor as to whether he contacted the minors. He also did not contact any of the other guardians. He only perused the official records and submitted the report, Exhibit (A). The High Court Division concluded that in the absence of any allegation of fraud made in the plaint, the plaintiffs were not entitled to challenge that the court guardian did not represent the interest of the plaintiffs. In this view of the matter the appeal was stated: also dismissed.

11. Leave was granted to consider whether the misdescription caused any prejudice.

12. Mr. Ahamad Sobhan, the learned counsel appearing for the plaintiff‑appellants contended that the High Court Division has erred in saying that there was no allegation of fraud in the plaint. He quoted the plaint. Para 3(d) runs thus:
"That said minors were represented by the Court guardian Pleader Mvi Manir Ahmed, who did not make any enquiry and submitted his report though the names of the plaintiffs are not Manju, Hasu and defendant No. 2's name is not Kiron Bala."
Paragraph 5 says that:
"The defendant No. 2, it appears, to keep the fraudulent sale concealed took away symbolical possession. The plaintiffs and the defendant No. 2 are still in actual possession."
In paragraph 6 it is stated that:
"The defendant No. 1 being fully aware of the defective sale and purchase is trying to sell the property to Surabala Dutta, wife of Suresh Ch. Dutta who was a tenant of the premises in order to put indirect pressure and to disturb the peaceful possession of the plaintiffs and the defendant No. 2."

13. Mr. Sobhan argued that they in collusion with the Bank had prepared to sell the house in question and that the property was a valuable property and the property had been sold for a mortgage debt of Taka 7,667.00. Mr. Sobhan then argued that the report of the Court guardian, Exhibit (A), shows that he did not take any interest in the execution proceeding on behalf of the minors. In Exhibit (A) it was stated that:
"I have the honour to state that issued registered Card with A/D which was duly received by the natural guardian of the minors but he could neither contact me personally nor through an agent. Further, I have gone through the records and do not find any prima facie case for the minor's interest. I, therefore, submit my final report."
Then Mr. Subhan refers to his evidence when he stated:
"I issued registered postcard to the natural guardian of the minors. It was received by one Manoranjan Das on behalf of Roy Bahadur."
In cross‑examination he admitted that the price of land would be about Taka 30,000.00 or so. He stated:
“I did not enquire what property was advertised for sale. I ascertained everything from the record. I did not bring before the notice of the court the true value of the building. I was not present when Monoranjan received my card. I say his name from the receipt. I cannot say who actually received the postcard. I do not know Roy Bahadur. I cannot say if Monoranjan had any authority to receive the postcard. I cannot re‑collect wherefrom I collected the data that there was no prima facie case to contest on behalf of the minors."

14. Mr. Ahmed Sobhan argued that the daughters of Roy Bahadur Tejendra, Lal Ghose were minors and after the death of their mother, Nanibala, the judgment-debtor, they were substituted but their names and particulars were not correctly recorded and therefore they never received any notice of the execution proceeding, etc. The Court guardian who was appointed was clearly negligent in performing his duties because he never looked after the interest of the plaintiffs. On his own admission he did not contact the minors, nor ascertained the valuation of the property that war, going to be sold, nor did he do anything to discharge his function as a guardian ad litem. He simply filed his report Exhibit (A) and when he was cross examined he could not say from whom he got the information that there was nothing for the minors to contest in this execution proceeding. Plaintiff Rekha stated in her evidence that their tenant Suren Dutta, his wife Sura Bala in collusion with the Urban Bank authority had caused the auction. She stated how they were neglected by their father and how her mother reared them up. She mentioned that her maternal uncle Monoranjan Das was responsible for the second marriage of her father against the will of her mother and this was only done to sell out the property of her father. This Monoranjan appeared to have played a prominent role in the auction case. The evidence of the Pleader‑Guardian is that he wrote a letter to Monoranjan Das which was received by him. It is unfortunate that the guardian ad litem had completely neglected his duty in spite of the evidence that the plaintiffs were not on good terms with Monoranjan Das. How could the Court guardian be satisfied when the registered postcard was received by Monoranjan Das, though in cross‑examination he stated that he could not say actually who received the postcard. He admitted that he could not say if Monoranjan had any authority to receive the postcard. Plaintiffs' allegation is borne by the deposition of Khagendra Chandra Das, DW 2
when he said:
"After our purchase we have contracted to sell the house of Surendra for Rs. 10,000.00. The bank is concerned with money".
This witness stated that he conducted the case on behalf of the bank but he had no personal knowledge about the service of processes. Thus the position which emerges is that these plaintiffs were minors during the relevant period and a Court guardian who was appointed under Order XXXII of the Code of Civil Procedure was grossly negligent about his duties and in consequence a valuable property of the minors was sold in auction for a debt of Taka 7000.00 which, according to both the sides, would be over Taka 30,000.00. The evidence is that this property is located at Anderkilla and near the court hills which is the heart of the Chittagong Town.

15. In the case of Mst. Siraj Fatima Vs. Mahmood Ali AIR 1932 (All) 293 the Full Bench of the Allahabad High Court observed that:
"The real basis of the binding character of a decree against a minor is the fact of his having been duly represented by a proper person, and not the mere existence of any formal order appointing a guardian for him. Even when there be such an order, if the guardian does not properly represent him, the decree would not be binding."
It was further observed that:
"Even where a guardian has been formally appointed but he is grossly negligent in his duties, he ceases to represent the minor properly and effectively, and the result is the same as if no proper guardian had been in existence. It is the duty of the court to see that the guardian appointed is a proper person who would safeguard the interest of the minor. If therefore the guardian ceases to take any interest in the case or is grossly negligent so as to sacrifice the interest of the minor, it cannot be said that the minor is still properly represented in the litigation. Willful and wanton neglect on the part of the guardian disqualifies him. This also therefore appears to be a basis on which the avoidance of decree against the minor can be allowed".
It was further stated that negligence in order to be good ground for the avoidance of a decree must be of such a nature as to justify the inference that the minors' interests were not at all protected and therefore he was not properly represented. It was further observed that:
"Gross negligence includes inexcusable absence of such ordinary care which under the circumstances of the case a prudent man was bound to take to safeguard his interest or that of a person who was dependent upon him. Where the prudent man abandons his prudence without any excuse in the conduct of any affair affecting the interest of his wards he must be held to be guilty of negligence. Where negligence is established liability follows for all resultant consequences."
In that decision the Full Bench surveyed the case laws on the subject and came to the conclusion that a decree against a minor could be avoided if it was proved that the Court guardian was negligent in the performance of his duties.

16. Mr. BB Roy Chowdhury, the learned Counsel appearing for the respondent, argued that the plaintiffs had failed to prove fraud in the execution proceeding and therefore the decree should not be set aside.

17. As has been mentioned in the plaint the plaintiffs had specifically stated about the fraudulent sale itself and that is why it was stated that the defendant No. 1 took only symbolical possession. The trial Court simply brushed aside the point by saying that the allegation of fraud was not taken seriously in the plaint or in the evidence nor was it taken at the time of execution proceeding and therefore it did not consider that the sale was vitiated by fraud. The plaintiffs alleged that the house had been under‑valued and the real value was Taka 30,000.00 to Taka 40,000.00 and it was auction sold for Taka 7000.00 only and the Bank had purchased it in auction sale and they were trying to sell it to Surendra for Taka 10,000.00. The allegation of the plaintiffs is that Surendra was althrough behind the screen for getting the house sold on auction in collusion with the Bank and their mama Monoranjan Das who was hostile to them.

18. In the case of Iftekhar Hussain Vs. Beant Singh AIR 1946 (Lah) 233 the Full Bench of the Lahore High Court after discussing the case law came to the conclusion that a minor can avoid a decree against him on the ground of gross negligence on the part of his guardian ad litem even if he has not succeeded in proving fraud or collusion on the part of such guardian. Mahajan J, who was on the same Bench, went further and observed that to deny the minor the plea of gross negligence of his guardian in such cases is to deny him bare justice and is to handicap him to fight against his adversary who can always be compensated when the litigation is re‑opened by handsome Costs.
It was observed that:
"In some cases this rule has been sought to be justified on the ground that cases of gross negligence of guardian of a minor stand on the same footing as fraud and collusion and that gross negligence in instance similar to the one I have given amounts to fraud. I cannot subscribe to this view because gross negligence and fraud are in law two mutually exclusive concepts though the same facts may be evidence either of one or the other. In my view, therefore, apart from fraud, gross negligence of the guardian itself without more is a ground to vacate a judgment against a minor and is sufficient to re‑open the previous litigation."

19. This is a correct proposition of law and the terms of Order XXXII of the Code of Civil Procedure clearly show that this duty of the guardian ad litem continues throughout the execution proceeding also. By the gross negligent act of the guardian the minors in the present case had suffered substantial injury and a valuable property had been sold for a petty amount behind their back. They knew nothing about it and after the death of their mother though they were substituted in the execution proceeding even their names and particulars were not correctly given in the proceeding and notices of the execution proceeding were not served upon them. The Court guardian himself contended by saying that the letter was received by Monoranjan who already in evidence had figured as a person who was hostile to the minors. In this view of the matter the trial Court had taken a wrong view about the allegation of fraud and the High Court Division also did riot advert to this plea carefully. In this view of the matter the opinion is that this suit must be decreed.

20. In this connection it is also to be noticed that on 9.1.61 the plaintiff deposited Rs. 5000.00 and it was prayed that the defendants may be directed to accept the money in terms of conditional petition of compromise. Then an order was pissed on 17.1.61 allowing the petitioner-plaintiffs to deposit the money under chalan No. 915. Thus it is clear that. die plaintiffs were always willing to pay up the debt of their father which was only to the extent of Rs. 5000.00 or so and they actually deposited the amount but still the Bank intended to go for the sale of the property which obviously shows that it was for an ulterior purpose.

21. In the result, therefore, this appeal is allowed. The suit is decreed and it is held that the sale in the Mortgage Execution case No. 37 of 1954 held on 10.11.54 has not affected the right, title, interest and possession of the plaintiffs. The defendants, however, will be at liberty to withdraw the amount of Taka 5000.00 which was deposited in court vide Order No. 33 dated 17.1.61 and the balance amount to be paid within 6 months from the date.
There will be no order as to costs.
Ed.

Renuka Rani Mondol @ Roy Vs. Biswajit Mondol @ Roy and another 2016 (2) LNJ 347

Case No: Civil Revision No. 2691 of 2002

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. Zainul Abedin,Mr. Mahbubur Rahman,Mr. Md. Anwarul Islam,Mrs. Farjana Sharmin,,

Citation: 2016 (2) LNJ 347

Case Year: 2016

Appellant: Renuka Rani Mondol @ Roy

Respondent: Biswajit Mondol @ Roy and another

Subject: Civil Law,

Delivery Date: 2015-09-09

Renuka Rani Mondol @ Roy Vs. Biswajit Mondol @ Roy and another 2016 (2) LNJ 347
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

Borhanuddin, J.
Judgment on
09.09.2015

Renuka Rani Mondol alias Roy
. . .Petitioner
Versus
Biswajit Mondol alias Roy and another
. . . Opposite Parties

Specific Relief Act (I of 1877)
Section 42
Evidence Act (I of 1872)
Section 114 (e)
It is settled that a suit for mere declaration without seeking cancellation of the document is not maintainable. Further that the impugned deed of gift which is duly registered has a presumption of correctness as provided under Section 114 (e) of the Evidence Act as such onus lies upon the plaintiff to prove that the deed is forged and fabricated. On perusal of the record, it is evident that plaintiff failed to prove that the deed of gift is forged and fabricated by adducing credible oral and documentary evidence.   . . . (12)

Transfer of Property Act (IV of 1882)
Section 123
Where the instrument of gift has been registered, delivery of possession is not essential for the validity of a gift by a Hindu. On plain reading of Section 123, it is clear that delivery of possession is essential to the validity of a gift is abrogated by section 123 of the Act. A gift under the Act can only be effected in a manner provided by Section 123.                                        ... (12 and 14)

Evidence Act (I of 1872)
Sections 67 and 68
On perusal of the testimony of DWs it appears that DW.4 is a attesting witness of the deed of Gift and DW.5 is scribe of the deed but the appellate court below on the basis of testimony of DWs.2 and 3 arrived at a finding that DWs.2-4 did not heard about the deed of Gift when Bhabesh was alive. But on perusal of the testimony of DWs.2, 3 and 4, it is apparent that the appellate court below arrived at such a finding on misreading of evidence. . . . (15)

Abani Mohan Saha Vs. Assistant Custodian (S.D.O) Vested Property, Chandpur and others, 39 DLR(AD)323 and Abul Kashem Howlader Vs. Sultan Ahmed and others, 9 BLC 333 ref.
Mr. Zainul Abedin, with
Mr. M. Mahbubur Rahman, Advocates
. . . For the Petitioner
Mr. Md. Anwarul Islam, with
Mrs. Farjana Sharmin, Advocates
. . . For Opposite Party no.1

JUDGMENT

Borhanuddin, J:

This Rule has been issued calling upon opposite party no. 1 to show cause as to why judgment and decree dated 16.03.2002 passed by the learned Additional District Judge, 1^st Court, Khulna, in Title Appeal No. 121 of 2000 allowing the appeal in part by way of modifying the judgment and decree dated 13.03.2000 passed by the learned Subordinate Judge, 3^rd Court, Khulna, in Title Suit No. 17 of 1998 dismissing the suit, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.

Facts relevant for disposal of the rule are that opposite party no.1 herein as plaintiff instituted Title Suit No. 17 of 1998 in the 3^rd Court of learned Subordinate Judge, Khulna, for declaration of Title in respect of .47 ^rd acres land out of 1.43 acres as ^rd share by way of inheritance described in schedule “Ka” of the plaint and for further declaration that the deed of gift no.3315 dated 14.12.1997 registered at Batiagata Sub registry office is forged, fraudulent, inoperative, void and not binding upon the plaintiff.
Plaintiff’s case in short is that suit land belonged to Bhabesh Mondol who married Purnima Rani, daughter of Pulin Bairagee; Out of the wedlock, plaintiff was born who was brought up in the house of his maternal uncle; Since Purnima lost her procreation capacity, Bhabesh Mondol married Renuka and out of that wedlock two sons namely, Bhudeb and Bidhu were born; In the year 1997, Bhabesh was admitted in Khulna Seba Clinic for treatment; Bhabesh was a heart patient; At critical stage of his ailment, Bhabesh again admitted at Batiaghata Health Complex and remained there till 18.12.1997; Plaintiff was residing at Chittagong for the purpose of his service; His mother was at his maternal uncle’s house; Bhudeb, Bidhu and their mother Renuka looked after Bhabesh at the clinic; Taking advantage of the situation, on 14.12.1997 defendant no.1 and her two sons took Bhabesh out of the clinic for 2(two) hours by executing a bond and within this time incollusion with the subregistrar created a forged deed of gift dated 14.12.1997 in respect of the suit land; Said deed of gift was not executed voluntarily by Bhabesh; Bhabesh died on 19.04.1998 without any treatment; After the cremation ceremony, defendant no.1 disclosed about the deed of gift; Then the plaintiff procured certified copy of the deed on 17.05.1998 and constrained to file the suit.
Defendant no.1 contested the suit by filing written statement denying material allegations made in the plaint and contending interalia that there is no cause of action, suit is not maintainable, bad for defect of parties and barred by limitation. Further contending that Bhabesh Mondol willingly and voluntarily executed and registered the deed of gift in favour of his wife; She is in possession of the land; Plaintiff is not son of Bhabesh Mondol; All the rituals after expiry of Bhabesh Mondol performed by the defendant and her two sons; Suit is liable to be dismissed.
After hearing the parties and assessing evidenced on record, learned Subordinate Judge dismissed the suit on contest against defendant no.1 and exparte against the rest holding that plaintiff did not pray for cancellation of the deed and the suit is bad for defect of parties and also held that suit for declaration on an undemarcated and unspecified land is not maintainable.
Being aggrieved, plaintiff as appellant filed Title Appeal No. 121 of 2000 in the Court of learned District Judge, Khulna. On transfer, the appeal was heard and disposed of by the learned Additional District Judge, 1^st Court, Khulna, who after hearing the parties and reassessing evidence on record allowed the appeal in part upholding portion of the judgment and decree passed by the trial court so far as it relates to declaration of title but decreed that the deed of gift dated 14.12.1997 is forged, inoperative and not binding upon the plaintiff.
Having aggrieved by and dissatisfied with the judgment and decree, defendant-respondent as petitioner preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present rule with an order of stay.
Mr. Zainul Abedin with Mr. M. Mahbubur Rahman, learned advocates appearing for the petitioner submits that appellate court below committed an error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and decree without adverting findings of the trial court and thus violated provisions of 0rder XLI rule 31 of the Code of Civil Procedure as such, impugned judgment and decree is liable to be set aside. He also submits that appellate court below committed an illegality in not considering that plaintiff filed the suit praying for declaration that the deed of gift dated 14.12.1997 is forged and fraudulent as such, burden of proof lies upon the plaintiff under Section 103 of the Evidence Act to prove that the registered deed of gift is executed and registered fraudulently. He next submits that since the deed of gift is duly registered it has presumption of genuineness and correctness under section 114(e) of the Evidence Act and the appellate court below committed an illegality without considering this legal aspect. He again submits that appellate court below allowed the appeal with extraneous finding that the deed of gift was not acted upon without looking into the provisions of Section 123 of the Transfer of Property Act inasmuch as amongst Hindus gift make subsequent to the Act does not require delivery of possession if there is registration. He lastly submits that the impugned judgment and decree passed by the appellate court below is based on misreading and non appreciation of evidence on record and as such liable to be set aside. In support of his submissions, learned advocate referred to the case of Abani Mohan Saha-Vs- Assistant Custodian (S.D.O) Vested Property, Chandpur and others, reported in 39 DLR(AD)323 and the case of Abul Kashem Howlader-Vs- Sultan Ahmed and others, reported in 9 BLC 333.
On the other hand Mr. Anwarul Islam Shahin with Ms. Farjana Sharmin, learned advocates for the opposite party submits that since the defendant no.1 claims title in the suit land by dint of deed of gift dated 14.12.1997, duty cast upon her under the provisions of Sections 101 and 103 of the Evidence Act to prove that the deed was acted upon. He also submits that it is apparent from evidence on record that at the time of execution and registration of the deed of gift, the donor was critically ill and admitted in the hospital so, it can be easily presumed that the deed of gift was not executed and registered voluntarily. He next submits that from the circumstances which is proved by the witnesses, it is evident that at the time of execution and registration of the deed of gift, the donor was not physically and mentally sound and the same is also proved from the testimony of PW.5 i.e. doctor of the clinic. He next submits that the very circumstances of the clinic wherein plaintiff and his mother were absent proves that the deed of gift executed under undue influence by defendant no.1 and her two sons to deprive the plaintiff from his due share. In support of his submissions, learned advocate referred to the case of Official Assignee of Bengal -Vs- Bidyasundari Dasi and others, reported in The Calcutta Weekly Notes, Vol-XXIV, P.145.
Heard the learned advocates. Perused revisional application, judgment of the courts below alongwith lower courts record and the decisions cited by the learned advocates.
Admittedly plaintiff instituted the suit for declaration of title in respect of “Ka” scheudle land and for further declaration that the deed of gift dated 14.12.1997 registered at Bhatiagata sub register office is forged, fraudulent, void, inoperative and not binding upon the plaintiff. Deed of gift dated 14.12.1997 which is under challenge is a registered instrument. It is not a case of the plaintiff that said deed was not executed and registered by Bhabesh Mondol rather plaintiff’s case is that the donor did not execute and register the deed voluntarily and willingly but under undue influence of defendant no.1 and her sons.
I have gone through the judgments passed by the trial court as well as appellate court below. Plaintiff filed the suit under Section 42 of the Specific Relief Act. By now it is settled that a suit for mere declaration without seeking cancellation of the document is not maintainable. Further that the impugned deed of gift which is duly registered has a presumption of correctness as provided under Section 114 (e) of the Evidence Act as such onus lies upon the plaintiff to prove that the deed is forged and fabricated. On perusal of the record, it is evident that plaintiff failed to prove that the deed of gift is forged and fabricated by adducing credible oral and documentary evidence. From deposition of PW.5, it appears that the donor was permitted by the doctor to go out of the clinic for two hours, when the deed was executed and registered. Appellate court below allowed the appeal in part holding that the deed was not acted upon since there is no evidence that possession was delivered to the defendant no.1. This finding is not correct. Where the instrument of gift has been registered, delivery of possession is not essential for the validity of a gift by a Hindu.
Section 123 of the Transfer of Property Act. runs as follows:

“123. Transfer how effected- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
[Notwithstanding anything contained in any other law for the time being in force, a heba under Muhammadan law shall be deemed to be a gift of immovable property for the aforesaid purpose.]
For the purpose of making a gift of movable property, the transfer may be effected either by registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.”

On plain reading of Section 123, it is clear that delivery of possession is essential to the validity of a gift is abrogated by section 123 of the Act. A gift under the Act can only be effected in a manner provided by Section 123.
On perusal of the testimony of DWs it appears that DW.4 is a attesting witness of the deed of Gift and DW.5 is scribe of the deed but the appellate court below on the basis of testimony of DWs.2 and 3 arrived at a finding that DWs.2-4 did not heard about the deed of Gift when Bhabesh was alive. But on perusal of the testimony of DWs.2, 3 and 4, it is apparent that the appellate court below arrived

at such a finding on misreading of evidence. In such view of the matter, I am of the opinion that the appellate court below committed an error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and decree.

Facts and circumstances of the case cited by the learned advocate for the opposite party is quite distinguishable from the facts and circumstances of the case in hand.
In the result, the rule is made absolute without any order as to cost.
Judgment and decree dated 16.03.2002 passed by the learned Additional District Judge, 1^st Court, Khulna, in Title Appeal No. 121 of 2000 is set aside and the judgment and decree dated 13.03.2000 passed by the learned Subordinate Judge, 3^rd Court, Khulna, in Title Suit No. 17 of 1998 is hereby restored.
Order of stay granted at the time of issuance of the rule is vacated.

Send down lower courts record alongwith a copy of this judgment to the court concern at once.
Ed.

Civil Revision No. 2691 of 2002

Republic of Pakistan (Now Bangladesh) Vs. A.N.M. Serajul Haque, 42 DLR (AD) (1990) 68

Case No: Civil Appeal No. 160 of 1983

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,,

Citation: 42 DLR (AD) (1990) 68

Case Year: 1990

Appellant: Republic of Pakistan (Now Bangladesh)

Respondent: A.N.M. Serajul Haque

Subject: Service Rules, Employment & Service,

Delivery Date: 1989-3-2

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
A.T.M. Afzal, J.

The Republic of Pakistan (Now Bangladesh)
.....................Appellant
Vs
A.N.M. Serajul Haque being dead his heirs: Jahibul Hoque and others
..................Respondents

Judgment
March 2, 1989.

The Laws (Continuance in Force) Order, 1958
Article 6(5)(b)
The High Court Division was in error in holding that the order of the Commissioner of Income Tax to retire the respondent from service was illegal without taxing into consideration exhibit. A order of the government of Pakistan directing the Commissioner of Income Tax to retire the respondent consequent on rejection of his appeal against the decision of the Screening Committee………..(9)

Lawyers Involved:
Abdul Wadud Bhuiyan, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record.—For the Appellant.
Ex parte—Respondents.

Civil Appeal No. 160 of 1983.
(From the judgment and order dated 28.3.83 passed by the High Court Division, Dhaka in First Appeal No. 40 of 1965).

JUDGMENT

Badrul Haider Chowdhury, J.

1. This appeal by special leave is directed against the judgment and order passed by the High Court Division in First Appeal No. 40 of 1965.

2. The plaintiff-Respondent filed a title suit being Title Suit No.35 of 1962 for a declaration that the order of his compulsory retirement passed by the Commissioner of Income Tax on June 29,1959 was illegal and without jurisdiction alleging, inter alia, that the Commissioner of Income Tax, East Pakistan was not the competent authority to order his compulsory retirement.

3. The trial Court found that the order of compulsory retirement was, in view of the amendment of section 5 of the Income Tax Act, illegal and accordingly decreed the suit. The High Court Division in First Appeal affirmed the decision of the trial Court. Leave was granted to consider the point that the order of retirement was directed by the Central Government and the Commissioner of Income Tax communicated the same to the plaintiff-respondent as such the order of compulsory retirement was not tainted with any illegality. Mr. Abdul Wadud Bhuiyan, the learned Additional Attorney General, pointed out that the Screening Committee recommended for the compulsory retirement of the plaintiff on the ground of his being "reputed to be dishonest". The plaintiffs appealed before the Central Government and it was dismissed. The learned Additional Attorney General placed before us the appointment letter of the plaintiff. Then he placed Exhibit A which reads as follows:-

"To
The Commissioner of Income Tax, (Dy. Name)
East Pakistan, Dacca.

Subject:-Screening Committee. Final orders on the Appeals submitted by the officers concerned in connection with the recommendations of the Screening Committee.

I am directed to say that the appeal submitted by Mr. A.N.M. Sirajul Haq, Income-Tax Officer against the findings of the Screening Committee has been rejected by the Finance Minister. He is, therefore, to retire from service with immediate effect on charges of corruption.

2. A form in which the orders are to be communicated to the Officer is enclosed which should be issued under your signature. A form of notification is also enclosed. Officers may be informed and actions taken accordingly.

3. Please see that all the orders in connection with the Screening are issued within 30th June, 1959.

G.S. Choudhury,
Under Secretary to the Govt. of Pakistan.
Extract from Manual of Appointments and Allowances of Gazetted Officers under the Audit of the Accountant General, Bengal, Part I, Eighth Edition (Revised), published by the Manager of Publications, Delhi in 1937.
Income-Tax Department. Page 155. Chap. XI.

4. Thereafter the order was passed on 29th June, 1959 in the following terms vide Exhibit 8:-

"Ext.8—Copy of Memorandum from Commissioner of Income-Tax, Dacca to Mr. A.N.M. Serajul Huq and others, dated the 29th July, 1959.
No. 209/113E-1/58-59(Con).
Government of Pakistan Depart. of Income-Tax.
Dated, Dacca, the 29th June, 1959.
Memorandum:
In Exercise of the powers conferred on me by Sub-Clause (b) of Clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, 1 order Mr. A.N.M. Sirajul Haq, Income Tax Officer, Central Salaries, Circle II, Dacca to retire with immediate effect from service on charges of having reputation of being corrupt.

2. In the event of his conviction in the legal proceedings, if any, to be instituted hereafter the liability for payment of pension or proportionate pension as the case may be would be reconsidered and the Government may forfeit the entire pension or part thereof.

3. Mr. A.N.M. Sirajul Haq is further debarred from future employment under the Government.

Sd/-
(A. Latif)
Commissioner of Income Tax,
East Pakistan, Dacca.
Copy forwarded to:-
(1) Mr. A.N.M. Sirajul Haq, Income Tax Officer, Central Salaries, Circle II, Dacca. He should positively make over charge on or before 30.6.59.
(2) A.R. Khan, Esqr., Secretary, Establishment Division, Ministry of the Interior, Karachi.
(3) Accountant-General, East Pakistan, Dacca.
(4) Secretary, Central Board of Revenue, Karachi.
(5) Inspecting Assistant Commissioner of Income-Tax, Range III, Dacca.
A. Latif,
Commissioner of Income Tax,
East Pakistan, Dacca.
The Gazelle of Pakistan, Extra, Jan. 24, 1959.
Karachi,
The 24th January, 1959."

5. The High Court Division in their judgment had token the view that the Commissioner of Income Tax had not issued the letter as a delegate of the Central Government; that he had passed the order independently although he was not the competent authority to pass such an order. The High Court Division repelled the contention of Mr. M.M. Haque, Assistant Attorney-General that if Exhibit 8 is read with Exhibit A it will be found that the Commissioner of Income Tax had the authority to pass such an order. Unfortunately, the learned Judges were not inclined to consider the proposition. It was observed:-

"We are not concerned with Ext. A here. We are concerned here with the order passed by the Commissioner of Income Tax".

6. Mr. Abdul Wadud Bhuiyan, referred to Ext. A which communicates the decision of the Government that the appeal of the plaintiff-respondent had been rejected by the Finance Minister. The Commissioner of Income Tax issued the order in exercise of the powers conferred on him by Sub-Clause (b) of Clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. This Sub-Clause (b) of Clause (5) of Article 6 reads as under:-

"Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being-(b) retired for any cause mentioned in the proceeding sub-clause, or for having the reputation of being corrupt or for inefficiency, on such pension (if any), as may be admissible to him, proportionate or otherwise-
by an order of the authority mentioned in clause(3) made before the first day of July 1959, and no appeal shall lie against such order nor shall such order be called in question in any Court."

7. Now clause (3) may be considered which reads as follows:—

"(3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor, be suspended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed."

8. Mr. Bhuiyan argued that if the two exhibits, Ext. A and 8 are read together it will be clear that the decision to retire the respondent was taken by the Central Government and the Commissioner of Income Tax issued the order of retirement as directed by the Central Government. It is contended that the retirement order was validly made and the High Court Division erred in law in construing Ext. 8 independently of Ext. A. It is submitted that the Commissioner of Income Tax communicated the decision as per direction of the Central Government contained in Exhibit A.

9. The argument has force. It is unfortunate that the learned Judges of the High Court Division ignored to consider the bearing of Exhibit A in coming to decision. None appears for the respondent, nor any concise statement has been filed on his behalf. Having heard Mr. Abdul Wadud Bhuiyan and perused the Exhibit A and Exhibit 8 in the context of Laws Continuance Order, 1958, there is no hesitation in saying that the High Court Division was in error in coming to the decision without taking into consideration effect of Exhibit A.

In the result, the appeal is allowed without any order as to costs.

Ed.

Resima Sultana Vs. Khaez Ahmed Mojumder, 49 DLR (AD) (1997) 57

Case No: Civil Appeal No. 97 of 1993

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Miah Abdul Gafur,Mr. Ozair Farooq,,

Citation: 49 DLR (AD) (1997) 57

Case Year: 1997

Appellant: Resima Sultana

Respondent: Khaez Ahmed Mojumder

Subject: Family Law,

Delivery Date: 1996-10-31

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
BB Roy Choudhury, J.

Resima Sultana
……………….Plaintiff-Appellant
Vs.
Khaez Ahmed Mojumder
…………........Defendant Respondent

Judgment
October 31st, 1996

Family Courts Ordinance (XVIII of 1985)
Section 16(4) & (5)
Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted.

Lawyers Involved:
Md. Ozair Farooq, Advocate-on-Record— For the Appellant
Miah Abdul Gafur, Advocate-on-Record — For the Respondent

Civil Appeal No. 97 of 1993
(From the judgment and order dated 22nd and 29th April, 1993 passed by the High Court Division in Civil Revision No. 1366 of 1992).

JUDGMENT

ATM Afzal CJ:

1. The main question raised for decision in this plaintiffs appeal by leave is whether a family court has power under sub-section (5) of section 16 of the Family Courts Ordinance 1985 (Ordinance No. XVIII of 1985, briefly, the Ordinance, to direct payment of any money to be paid under a decree passed by it during execution proceeding. The High Court Division has answered the question in the affirmative and it will be seen at the end that the question, not a very difficult one, has been answered correctly.

2. The appellant as plaintiff instituted Family Suit No. 35 of 1988 in the Family Court (Senior Assistant Judge, Sadar, Comilla) claiming dower and maintenance from the defendant-respondent. The suit was decreed on 13-6-89 for an amount of Taka 1,77,575.00 Taka 1, 75,000.00 as dower and Taka 2,575.00 for maintenances for the period of iddat. The decree was drawn up on 17-8-89 under section 16(1) of the said Ordinance.

3. The respondent preferred family appeal No. 24 of 1989 before the District Judge, Comilla against the aforesaid judgment and decree but the appeal was dismissed by judgment and decree dated 17-4-1990.

4. On 19-10-89 the appellant filed family decree execution case No. 7 of 1989 under section 16 (3) (b) of the Ordinance. The respondent filed an application under section 16(3) (a) praying for monthly instalment of the attachable portion of his salary for satisfaction of the decree. The family Court rejected his application taking the view, inter alia, that it was the option of the decree-holder to follow any procedure permitted by law to obtain satisfaction of the decree. The respondent took an appeal to the District Judge, Comilla against the said order, Family Court Appeal No. 27 of 1990, and the learned District Judge, by his order dated 9-8-1990, dismissed the appeal on the ground that it was not maintainable. The respondent then took a revision from the order of the learned District Judge, Civil Revision No. 1676 of 1990, before the High Court Division and obtained a Rule but there was no order of stay of the execution proceeding; even then the execution case was stayed by the executing Court. On the prayer of the appellant, however, the stay of the execution case was vacated whereupon the appellant prayed for an order of stay in the pending revision case. The High Court Division granted a limited stay on condition of payment of Taka 50,000.00 by order dated 27-2-92. The respondent did not comply with the order of the High Court Division and instead filed an application for withdrawal of the revision case which was allowed by the High Court Division and the Rule was discharged on 16-3-92 for non-prosecution. Thereafter on 17-3-92 the respondent filed an application in the execution case, this time under section 16(5) of the Ordinance, praying for monthly instalment alleging that he was a service-holder and except his salary he had no other assets and as such, it would not be possible for him to satisfy the decree except by way of making payment by instalments. On 2 1-3-92 the decree-holder appellant was absent and the family Court upon considering that the respondent had a net monthly salary of Taka 5,227.00 permitted him to deposit in favour of the decree-holder the first instalment of Taka 3,575.00 and then a monthly instalment of Taka 2,500.00. The appellant filed objection against the said order but the family Court, by its order dated 19-4-92, rejected the same, inter alia, upon view that the decree-holder could lake an appeal against the order allowing instalment. The appellant instead of taking an appeal moved the High Court Division in revision and obtained a Rule in Civil Revision No. 1366 of 1992. A learned Single Judge, by the impugned judgment and order dated 29 April, 1993, upon hearing the parties discharged the Rule holding that in enforcing a decree for money the Court may on the prayer of the judgment-debtor direct payment of the decretal amount in suitable instalments, that such a stage comes after the delivery of judgment as provided in section 15 and that the impugned order of the Family Court dated 21-3-92 and 19-4-92 suffered from no legal infirmity resulting in an error in the decision occasioning failure of justice.

5. This appeal has arisen out of the aforesaid judgment and order and the question raised, as indicated above, out of the aforesaid circumstances.

6. Md. Ozair Farooq, learned Advocate-on- Record for the plaintiff-appellant, has made a two-fold submission. His first contention is that a family Court may direct under section 16(5) of the Ordinance any money to be paid under a decree in instalments only at the time of passing of the decree and not thereafter i.e. during the execution of the decree. His second contention is that even if it is permissible for a family Court to allow instalments in course of an execution proceeding, it cannot do so as an executing Court, for; the authority to allow instalments has been vested with the family Court as a trial Court.

7. Ozair Farooq in developing his second submission has argued that a Court executing a decree has no power to alter or vary the terms of the decree. An order directing instalments is an order which varies the decree. In support of his contention that an executing Court is not competent to direct payment of decretal amount by instalments he has referred to several decisions; namely, Gobardhan Prashad vs. Bishunath Prasad AIR 1921 Patna 340, Gobardhan vs. Dee Dayni AIR 1932 Allhabad 273 (FB), Bilimoria vs. Central Bank of India AIR 1943 Nagpur 340 (FR), J Krishnareddy vs. B Ramagopalaiah AIR 1985 Andhra Pradesh 49.

8. For an answer to the question raised in this appeal it is necessary to examine the provisions of section 15 and 16 of the Ordinance which relate to writing of judgment and enforcement of decree and are as follows:

15. Writing of judgment.—(1) Every judgment or order of a Family Court shall be written by the presiding Judge or from the dictation of such Judge in the language of the Court and shall be dated and signed by the Judge in open Court at the time of pronouncing it.

(2) All judgment and orders which are appealable shall contain the point for determination, the decision thereon and the reason therefor.

16. Enforcing of decrees.—(1) A Family Court shall pass a decree in such form and manner, and shall enter its particulars in such register of decrees as may be prescribed.

(2) If any money is paid, or any property delivered, in the presence of the Court in satisfaction of the decree, it shall enter the fact of such payment or delivery in the aforesaid register.

(3) Where the decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court, the decree shall, on the prayer of the decree-holder to be made within a period of one year from the expiry of the time so specified, be executed-

(a) as a decree for money of a Civil Court under the Code, or

(b) as an order for payment of fine made by a Magistrate under the Code of Criminal Procedure 1898 (Act V of 1898) and on such execution the decretal amount recovered shall be paid to the decree-holder.

3A) For the purpose of execution of a decree under sub-section (3)(a), the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.
(3B) For the purpose of execution of a decree under sub-section (3)(b), the Judge of the Family Court shall be deemed to be a Magistrate of the first class and shall have all the powers of such Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1898), and he may issue a warrant for levying the decretal amount due in the manner provided in that Code for levying fines, and may sentence the judgment debtor, for the whole or any part of the decretal amount remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to three months or until payment if sooner made.

(3C) When a decree does not relate to payment of money, it shall be executed as a decree, other than a decree for money of a Civil Court and for that purpose the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.

(4) The decree shall be executed by the Family Court passing it or such other Family Court to which the decree may be transferred for execution by the Court passing it and in executing such a decree the Court to which it is transferred shall have all powers of the Family Court passing the decree as if the decree were passed by it.

(5) The Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit.

9. It may be observed that in section 20 of the Ordinance it has been laid down that save as otherwise expressly provided by or under the Ordinance the provisions of the Code of Civil Procedure except sections 10 and 11 shall not apply to proceedings before the family Courts.

10. Order XX CPC relates to judgment and decree which evidently does not apply to a proceeding before the Family Court. Even then ii will be useful to look into the provisions for payment by instalments under a decree as provided in the general law i.e. the Code of Civil Procedure. Order XX rule 11 CPC is as follows:

11. (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(2) After the passing of any such decree the Court may, on the application of the Judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

11. It is clear from the above that under sub-rule (1) the authority has been given to the Court to allow payment of the decretal amount by instalments for any sufficient reason at the time of passing the decree. Under sub-rule (2) the authority to allow instalments may be exercised on the application of the judgment-debtor and with the consent of the decree-holder even after the passing of the decree. For an application for instalments under sub-rule (2) the limitation under article 175 of the Limitation Act is six months from the date of the decree.

12. The decisions cited by Mr. Qzair Farooq are in connection with the powers of the Court to allow instalments under rule 11, Order XX CPC. Those authorities support the view, there are contrary decisions also, that an executing Court is not competent to allow instalments and such, power vests only in the Court which has passed the decree. This view has been taken apparently following the well-settled proposition that an executing Court cannot go behind the decree. The said decisions, in the first place, are not apt for the present, for we are considering in this case a special statute laying down special provisions relating to judgment and enforcement of decrees.

13. It has been noticed that under the general law the trial Court may allow payment by installments even after the passing of the decree under certain conditions. Let us see whether sub-section (5) of section 16 of the Ordinance has authorised the family Court to allow instalments after the passing of the decree. The words “to be paid under a decree passed by it” occurring in the sub-section leave no manner of doubt that the family Court is also authorised to direct payment by instalments as it deems fit even after the passing of the decree. We feel no hesitation therefore to dismiss the first contention of Mr. Qzair Farooq that the family Court can allow instalments only at the time of passing of the decree and not thereafter i.e. during execution proceeding. Mr. Farooq having noticed with us the language of sub-section (5) and the provisions under the general law as referred to above has ultimately veered round the view that it is permissible for the family Court to allow instalments even after the passing of the decree. The difference that we find between the general provisions and those provided in section 16 sub-section (5) is that whereas under the former the power is hedged by certain conditions including one of limitation but under sub-section (5) there is no such condition except that the power should be exercised “as it deems fit” i.e. in exercise of a proper judicial discretion. The power is wider under sub-section (5) and may be used either on application by a party or suo motu so long as the decree remains unsatisfied.

14. As to the second contention of the learned Advocate for the appellant that a family Court can allow instalments only as a trial Court and not as an executing Court, it appears to be an argument in tautology because sub-section (4) of section 16 provides that the decree shall be executed by the Far Court passing it or by such other Family Court to which the decree may be transferred for execution by the Court passing it and in executing such a decree the court to which it is transferred shall have all powers of the Family Court passing the decree as if the decree were passed by it. Since a decree passed under the Ordinance can be executed only in the Family court passing the decree, there is only but one court in which a proceeding under the Ordinance is started and concluded ending in the execution of decree or otherwise as the case may be. When a prayer for instalments is made by the judgment-debtor in course of the execution proceeding he cannot but make it before the family Court which passed the decree (the executing Court being the same). In view of the provisions of sub-section (4) there is no scope for raising the question as to the competence of the Court allowing instalments under sub-section (5). Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow instalments even after passing of the decree is undoubted.

15. We, therefore, entertain no doubt that the question raised in this appeal must be answered in the affirmative and the High Court Division has committed no wrong.

16. Leave was also granted to consider another submission of the appellant that in any view of the matter the family Court ought not to have allowed instalments by its order dated 21-3-92 inasmuch as it had already refused the prayer for instalments earlier by its order dated 9-5-90. The argument is that the Court cannot sit over its own order as if by way of an appeal. Mr. Farooq also argued that the plaintiff would stand to gain if the decretal amount was paid at a time and allowing instalments to the defendant caused prejudice to her.

17. It has been noticed that the defendant respondent took an appeal against the first order dated 9-5-90 and the learned District Judge having dismissed the appeal as not maintainable took a revision to the High Court Division but ultimately did not proceed with the same and instead filed another application before the family Court on 17-3-92 for allowing instalments which was granted.

18. Miah Abdul Gafur, learned Advocate-on-Record for the respondent, submits that the defendant’s first application which was rejected by order dated 9-5-90 was filed under section 16(3)(a) and the second application dated 17-3-92 was under section 16(5) of the Ordinance. The purpose of the first application was different and it was necessary because the appellant-decree-holder started execution under section 16(3)(b) of the Ordinance which was more onerous for the defendant. Mr. Gafur has explained his point by saying that the appellant had maliciously adopted the course under the Code of Criminal Procedure for realising the decretal dues and so the defendant was obliged to file a petition for following the course under the Code of Civil Procedure as provided in section 16(3)(a). Referring to the order of rejection dated 9-5-90, be submits that it is wrong to say that the defendant made the same prayer for allowing instalments after it was rejected by order dated 9-5-90.

19. It is admitted that the decree-holder started the execution case under section 16(3)(b) i.e. she wanted the execution to proceed under the Code of Criminal Procedure, 1898 and an order of arrest was made by the Magistrate. The defendant in his earlier petition under section 16(3)(a) in effect prayed for an order for execution of the decree to be made under the Code of Civil Procedure which was refused on the ground that it was for the decree-holder to choose the procedure for execution of the decree. It will not be fair to say that the defendant was making the same prayer for instalments which was rejected earlier. Even otherwise it is possible that more than one application may be made for allowing instalments if the facts of any particular case justify making of a second application after the first application has been rejected. It is found that before allowing instalments in the present case the family Court directed the respondent to produce from the authority a certificate of his pay and upon furnishing of such certificate the Court allowed his prayer for instalments in exercise of its discretion. There is no reason to think therefore that the discretion has been wrongly exercised in the circumstances of the case. Having regard to the facts as noticed above it will not be correct to say that the family Court sat over its order or that the discretion has been improperly exercised in allowing instalments to the defendant.

The contentions raised by the appellant fail and accordingly the appeal is dismissed without any order as to costs.

Ed.

Rezia Bibi @ Most. Rezia Khatun Bibi Vs. Artha Rin Adalat & ors., 2018(1) LNJ 129

Case No: Writ Petition No. 12839 of 2012.

Judge: Md. Faruque (Md. Faruque), J.

Court: High Court Division,

Advocate: Mr. Md. Mazibar Rahman, Ms. Khalifa Samsun Nahar, Advocate ,

Citation: 2018(1) LNJ 129

Case Year: 2014

Appellant: Rezia Bibi alias Most. Rezia Khatun Bibi

Respondent: Artha Rin Adalat, Bogra & others

Subject: Artha Rin Adalat Ain

Delivery Date: 2018-05-30

necessity for accommodation etc in urban areas is a stark reality, consequently causing impediments and obstacles to construction in urban areas by order of temporary injunction shall result in unfairness and serious inconveniences to the urban dwellers and the public in general.

13. We are also in respectful agreement with the decisions of our Apex Court and this court that making or continuing construction of building for residential or other purposes whatsoever during pendency of any suit be it a partition suit or any other type of suit should be allowed and the party or parties who have undertaken the construction ought not to be obstructed from doing so. But of course, there is no gainsaying the fact that the party undertaking the construction during pendency of a suit or suits whatsoever shall continue construction at his own risk and peril depending on the result and fate of the suit.

14. Therefore taking into consideration the facts and circumstances and the documents before us and being fortified by the decisions placed before us we are of the considered view that the impugned judgment and order dated 16.02.2017 passed by the learned Joint District Judge, First Court, Khulna in Title Suit No. 10 of 2017 rejecting the application for temporary injunction was correctly given and does not call for interference.

15. In the result, the appeal is dismissed without any order as to costs.

16. The order of status-quo granter earlier by this Court is hereby vacated.

Communicate this Judgment and Order at once.

Ed.

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Muhammad Dastagir Husain, J.

And

Md. Faruque (M. Faruque), J.

Judgment on

03.03.2014

}

Rezia Bibi alias Most. Rezia Khatun Bibi

…. Petitioner

-Versus-

Artha Rin Adalat, Bogra & others

.…Respondents

Artha Rin Adalat Ain (VIII of 2003)

Section 8(7)

This provision of law is applicable for the exclusive property of the borrower. Admittedly, the lands which are the self acquired property of the petitioner were not mortgaged to the bank for recovery of the loan amount of the borrower and the petitioner is neither loanee nor mortgagor nor guarantor for the loan of her husband and admittedly she has not inherited any property from her husband, the borrower. So the provision of section 8(7) of the Artha Rin Adalat Ain has got no manner of application for recovery of the loan of the borrower Amjad Hossain now dead by selling out the self-acquired property of the petitioner. . . .(15)

Mr. Md. Mazibar Rahman with

Mr. Md. Abul Kalam, Advocates

. . . For the petitioner

Ms. Khalifa Samsun Nahar, Advocate

. . . For the respondent No. 2

Mr. Md. Shamsur Rahman, Advocate

. . . For Respondent No. 4.

JUDGMENT

Md. Faruque (M. Faruque), J: In this writ petition Rule Nisi was issued at the instance of the substituted heirs of the judgment-debtor calling upon the respondents to show cause as to why the proceeding of the Execution Case No. 165 of 1993 filed by Manager, Sonali Bank, Bogra Branch, Bogra (Respondent No. 2) in the court of Artha Rin Adalat, Bogra for execution of the decree as contained in Annexure-C to the petitioner attaching the self-acquired property of the petitioner who is neither a loanee nor guarantor nor mortgagor as contained in Annexure-B to the petition shall not be declared to have been made without lawful authority and is of no legal effect.

2. At the time of issuance of the Rule, Respondent Nos. 1 and 2 were directed not to take any action in any manner to sale the property of the petitioner in auction described in the schedule as contained in Annexure-B to the petitioner.

3. The petitioner’s case, in short, is that the deed of Heba being No. 3749 dated 24.03.1991 was executed and registered by Md. Banijar Rahman Pramanik in favour of Md. Mofazzal Hossain Pramanik, Md. Nurul Islam Pramanik both are sons of Md. Banijar Rahman Paramanik, Most. Reia Khatun Bibi, wife of Md. Amzad Hossain pramanik measuring 4.09 ¾ acore as described in the schedule of the said deed and delivered possession of the land described in the schedule to them.

4. Measuring 1.10 of land of mouza Nimarpara, upazilla Shibgonj being DP Khatian No. 389 J. L. No. 241 was duly recorded in the name of the petitioner and it was attested on 05.10.1993 by the Revenue Officer of the settlement Office, Shibgonj, Bogra and while the petitioner was in possession of the aforesaid scheduled land her husband died and that aforesaid Banijar Rahman Pramanik, father-in-law of the petitioner died after the execution of the registration of the aforesaid heba deed dated 24.03.1991 and the petitioner got the gifted land measuring 1.10 acre of land of Plot Nos. 65/136502/822 and the petitioner has the exclusive possession of the said land by virtue of heba given by Md. Banijar Rahman vide Registered Deed of Heba No. 3749 dated 24.03.1991.

5. Artha Decree Execution No. 165 of 1993 was started against M/s Amzad and Sons and Md. Amzad Hossain in the court of the Respondent No. 1 for realisation of outstanding dues of Taka 6,82,348.50 and the said Artha Decree Execution Case could not be completed within the stipulated period of time prescribed in Artha Rin Ain, 1990. after a long lapse of time on 06.04.2004 an application was filed by the Respondent No. 2 for substitution of the heirs of late Amzad Hossain who died on 27.12.2003. By this time the Artha Rin Adalat Ain, 2003 came into force and on the same date an application was filed by Respondent No. 2 for attaching the self-acquired property of the petitioner as aforesaid admittedly which was not mortgaged to the bank and prayer was made by the bank for permission for selling out the said property of the petitioner and prayer was rejected, saying; Ò‡`Ljvg& wewa m¤§Z b‡n weavq bvKP Kiv n‡jv|Ó

6. With reference to the Order No. 83 dated 09.08.2003 annexed to the supplementary affidavit learned Advcoate submits that arising out of the judgment and decree, passed in Artha Rin Suit No. 166 of 1990, Artha Rin Execution Case No. 250 of 1992 was started byt he bank and by order dated 09.08.2003 said execution case was disposed of with full satisfaction since no objection was filed by the bank in respect of the report dated 15.07.2003. The reports dated 15.07.2003 and 31.07.2003 are reproduced below:

15.07.2003

A`¨ `vwLjx cÖwZ‡e`b cÖvßxi w`b avh©¨ Av‡Q| wbjvg †µZv cÿ nvwRiv cÖ`vb K‡ib bvB& bvwR‡ii cÖwZ‡e`bmn `vwLjx ciIqvbv †dir cvIqv †Mj| Dnv †ck Kiv nBj& `vwLjx cÖwZ‡e`bmn `Ljx ciIqvbv bw_fz³ Kiv nDK| AvMvgx 31/07/2003 ZvwiL cÖwZ‡e`b weiæ‡× AvcwË (hw` _v‡K) `vwL‡ji wbwgË w`b avh©¨ Kiv nBj| BwZg‡a¨ bvwR‡ii LiPv Ges Xzwj LiPvq D‡Ëvj‡bi wbwgË †c-w¯øc Bm~¨ Kiv nDK|Ó

Ò31.07.2003

wbjvg †µZv nvwRiv cÖ`vb Kwi‡jb| bw_ †ck Kiv nBj| AvMvgx 09.08.2003 ZvwiL cÖ‡qvRbxq Av‡`k|Ó

7. Thereafter by order No. 83 dated 09.08.2003, aforesaid report dated 15.07.2003 was accepted and the Artha Decree Execution case No. 250 of 1992 was disposed of with full satisfaction of the Court below and the aforesaid order No. 83 dated 09.08.2003 reads as follows:

“09.08.2003

wWµx`vi cÿ nvwRiv cÖ`vb Kwi‡jb| bw_ †ck Kiv nBj| `vwLjx cÖwZ‡e`b wel‡q †Kvb cÿB †Kvbiƒc c`‡ÿc MÖnY K‡ib bvB| bw_ cÖ‡qvRbxq Av‡`‡ki Rb¨ †ck Kiv nBj| `vwLjx cÖwZ‡e`b cÖK…Z bw_ cixÿv Kwivg| †Kvb AvcwË `vwLj bv Kivq MZ 15.07.2003 Zvwi‡Li `vwLjx cÖwZ‡e`b M„nxZ nBj|

AZGe

Av‡`k

AÎ wWµxRvix gvgjv GLv‡b c~Y© mš‘wói mv‡_ wb®úwË Kiv ‡Mj|Ó

8. The learned Advocate for the petitioner submits that the very mortgaged land of the borrower Md. Amjad Hossain, husband of the petitioner on the basis of the decree of the aforesaid suit was sold in Artho Rin Execution Case No. 250 of 1992 and thereby such order of full satisfaction was passed in the aforesaid Artha Rin Execution Case. He submits that admittedly the petitioner is neither loanee nor guarantor or mortgagor for the loan of her husband Md. Amjad Hossain, now dead. Admittedly, her property was never mortgaged with the bank for satisfaction of the loan amount of her husband in any manner and therefore he submits that the self-acquired property of the petitioner could not be attached to the subsequent Artha Decree Execution Case No. 165 of 1993 arising out of Artha Rin Suit No. 167 of 1990 and the Artha Rin Adalat had no capacity to pass any order to allow the bank for selling out the petitioner’s property. The very sale has been made illegally without any lawful authority and on that ground the petitioner obtained the instant Rule and the order of stay.

9. It may be mentioned here that one Md. Rezaul Karim who purchased the self-acquired property of the petitioner in auction has become added respondent No. 4.

10. Learned Advocate for the Respondent No. 2 bank by filing affidavit-in-opposition submits that the writ petitions not maintainable and the petitioner is not entitled to get any relief. The learned Advocate submits that Md. Amjad Hossain, proprietor of M/s Amjad and sons and husband of the petitioner, applied to Respondent No. 2 Sonali Bank Limited, Bogra Branch, Bogra for the loan and as per request of the borrower, the Respondent No. 2 Bank sanctioned a project loan of Taka 5,47,450/- in favour of Md. Amjad Hossain under sanction letter dated 21.01.1980 and working capital loan of taka 1,36,435/- was sanctioned vide sanction letter No. 5896 dated 01.12.1984 and thus the total loan amounting to taka 6,83,885/- was obtained by the borrower from Sonali Bank, Corporate Branch, Bogra and for securing the payment of the said liabilities property of the petitioner’s husband under khatian No. C. S. 28, Plot No. 301 with an area of 11 decimals and under khatian No. 63, Plot No. 394 having an area of 19 decimals, that is, on the total 30 decimals of land was mortgaged to the aforesaid bank.

11. The learned Advocate for the bank submits that the aforesaid mortgaged land of Md. Amjad Hossain was sold on 30.09.2002 in auction to the highest bidder with the price of taka 6,05,000/-. The learned Advocate for the bank submits that two execution cases being Artha Execution Case No. 250 of 1992 and Artha Execution Case No. 165 of 1993 were filed by the bank for realisation of taka 11,26,600.55 as on 23.09.1993 for the project loan and taka 1,60,747.95 as on 23.09.1982 for the working capital loan respectively. Learned Advocate for the bank submits that the mortgaged lands of the borrower Amjad Hossain were sold on 09.08.2003 through the Execution Case No. 250 of 1992 for an amount of taka 6,05,000/- and the said amount was later on adjusted from the outstanding dues of the borrower for the working capital loan in connection with the Artha Execution Case No. 250 of 1992 for taka 1,60,747.95 and the remaining balance amount of taka 4,44,252.05 was partly adjusted from the outstanding dues of the project loan of the borrower in connection with Artha Execution Case No. 165 of 1993 out of 11,26,500.55 and that outsta-nding dues remained for taka 6,82,348.50. It is admitted by the bank that the petitioenr is neither loanee nor guarantor nor mortgagor of the borrower’s loan. The learned Advcoate for the bank submits that since no other property was available for adjusting the outstanding dues after selling out the mortgaged land of the borrower, as such his widow’s property was attached by court’s Order No. 81 dated 15.07.2009 and the same has been sold in auction.

12. The auction purchaser added as Respondent No. 4 by filing affidavit-in-opposition submits that the Respondent No. 4 purchased the said land of the petitioner by auction as the highest bidder through the court on payment of taka 16,50,000/-. He further submits that after the death of the loanee, heirs of the loanee including the petitioner were supposed to pay the loan money and that after the sale in auction, date was fixed on 21.09.2011 for filing Boinanama. He submits that petitioner filed Claim Case No. 8 of 2011 arising out of Artha Rin Execution Case No. 165 of 1993 before the learned Artha Rin Adalat which was rejected on 29.01.2012. Thereafter petitioner filed Miscellaneous Case No. 22 of 2012 before the District Judge, Bogra against the order dated 29.01.2012 passed in Claim Case No. 8 of 2011 and the writ petitioner also filed Partition Suit No. 11 of 2011in respect of the suit land before the Joint District Judge, Court No. 2, Bogra which was pending before the court below and he submits that under such circumstances the writ petition is not maintai-nable in the eye of law and the rule is liable to be discharged.

13. Heard the learned Advocates. Perused the writ petition, supplementary affidavit filed by the writ petitioner, affidavit in opposition filed by the Respondent No. 2 bank and the auction purchaser added as Respondent No. 4 and perused all the connected materials before us.

14. Learned Advocate for the bank submits tht the very property of the petitioner which was not kept under mortgage to the bank has been sold through court as per provision of section 8(7) of the Artha Rin Adalat Ain, 2003. The aforesaid provision of law runs as follows:

Ò8(7): ev`x †Kvb gvgjvq weev`xi m¤úwËi †Kvb Zdwmj cÖ`vb Kwi‡Z Amg_© nB‡j, ev`xi Av‡e`bµ‡g Av`vjZ weev`x‡K wjwLZ njdbvgv mnKv‡i Zvnvi A¯’vei I ¯’vei m¤úwËi wnmve `vwLj Kwi‡Z wb‡`©k cÖ`vb Kwi‡e Ges GB iƒc wb‡`©k cÖvß nB‡j weev`x Z`bymv‡i Zvnv A¯’vei I ¯’vei m¤úwËi, hw` _v‡K, ZvwjKv wjwLZ njdbvgv mnKv‡i Av`vj‡Z †ck Kwi‡e|Ó

15. This provision of law is applicable for the exclusive property of the borrower. Admittedly, the lands which are the self acquired property of the petitioner were not mortgaged to the bank for recovery of the loan amount of the borrower and the petitioner is neither loanee nor mortgagor or guarantor for the loan of her husband and admittedly she has not inherited any property from her husband, the borrower. So the provision of section 8(7) of the Artha Rin Adalat Ain has got no manner of applica-tion for recovery of the loan of the borrower Amjad Hossain now dead by selling out the self-acquired property of the petitioner. furthermore, it appears from the order No. 83 dated 09.08.2003, it is found that the Artha Rin Execution Case No. 250 of 1992 was disposed of with the full satisfaction without any objection of the decree holder bank.

16. We find that the very attachment of the petitioner’s self acquired property has been attached and sold without any lawful authority and therefore the sale of the said property of the petitioner to the added Respondent No. 4 is illegal and without any sanction of law. As such the very sale of the petitioner’s property is illegal and without any lawful authority and is of no legal effect. We can hold that the petitioner has sustained substantial injury by the reason of such attachment of her self-acquired attached property and subsequently by selling out the same to the Respondent No. 4 which was never mortgaged to the bank for recovery of the loan of the borrower Md. Amjad Hossain. More so, that the petitioner has not inherited any property from the borrower Md. Amjad Hossian.

17. Under the circumstances, we find that the very attachment of the self-acquired property of the petitioner and the very sale of the said property to the added Respondent No. 4 is illegal, without any lawful authority and is of no legal effect and we find substance in the Rule.

18. In the result, the Rule is made absolute without any order as to costs. The proceedings of the execution Case No. 165 of 1993 filed by the respondent No. 2 in the Court of Artha Rin Adalat, Bogra is hereby declared to have been made without any lawful authority and is of no legal effect.

19. The Respondent No. 2 Sonali Bank is directed to refund the sale amount of taka 16,05,000/- to the auction purchaser, added Respondent No. 4 with interest at the rat of 10% within 1(one) month from the date of receipt of this order

Ed.

Writ Petition No. 12839 of 2012.

Rezia Khatun and others Vs. Jahangir Hossain and others, 2018(1) LNJ 344

Case No: Civil Revision No. 231 of 2017

Judge: Soumendra Sarker, J.

Court: High Court Division,

Advocate: Mr. Probir Neogi, Senior Advocate, Mr. Abdul Quayum, Senior Advocate,

Citation: 2018(1) LNJ 344

Case Year: 2017

Appellant: Rezia Khatun and others

Respondent: Jahangir Hossain and others

Subject: Code of Civil Procedure

Delivery Date: 2018-06-07

or not in a mandatory form. The word shall makes it clear as appearing in rule 19 of Order V that it is mandatory upon the Court to examine the serving officer to ascertain as to whether the summons were duly served, or not. There is no doubt summons may be served upon an adult member of the defendant family under the provisions of rule 15 of Order V of the Code as has been done in the instant case but both the courts below concurrently disbelieved that the summons was duly served upon the defendant. In case of allegation of non-service of summons upon the defendant/opposite-party, as the case may be, the onus is upon the plaintiff/petitioner that the summons of the suit or the case was served upon the defendant/opposite-party. Moreover order V, rule 12 of the Code has provided that whenever it is practicable, service of summons shall be made upon the defendant herein opposite-party in person unless he has an agent empowered to accept the service, in which case service on such agent shall be sufficient. Therefore this Court sitting on a revisional jurisdiction without any important question of law cannot interfere into such reasonable findings of the courts below.

14. Having gone through the materials on record and particularly the provisions of service of summons upon the defendant in a suit, I am not inclined to interfere with the concurrent finding of the courts below.

15. With regard to the decision as referred to by the learned Advocate for the petitioner, I find the same not applicable in context of the present facts and circumstances of the case and accordingly the same is not discussed.

16. In the result, the Rule is discharged.

17. Since the original suit was filed in the year 2007, the Court concerned is directed to dispose of the suit with utmost expedition preferably within 6(six) months from the date of receipt of a copy of this judgment.

18. The order of stay and status quo at the time of issuance of the Rule is hereby recalled and vacated.

19. Let a copy of this judgment be sent to the court concerned at once.

Ed.

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

Judgment on

30.11.2017

}

Rezia Khatun and others

. . . Plaintiff-opposite party-- Petitioner

-Versus-

Jahangir Hossain and others

. . . Defendant-petitioner-Opposite Parties

Code of Civil Procedure (V of 1908)

Section 152

It is a decided matter in our legal arena that for the laches or fault of the lawyer, the party cannot suffer; as well as a decree cannot be infructuous. As soon as, the matter came into the notice of the plaintiffs, they filed the applications for amendment and as such the accidental mistake or inadvertent error, which was committed earlier, deserve rectification; which is not barred by any law. In this regard, section 152 of the Code of Civil Procedure provides that Clerical or arithmetical mistake in judgment, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties. Therefore, it is evident from the relevant law that there is no limitation of time for rectification of bona fide mistake, which is clerical or arithmetical mistake or accidental slip or omission. The statute is very much clear with regard to this, and it is a legislative recognition of the courts power to correct the fault which is bonafide and unintentional. . . . (12 and 13)

Ibrahim Sheikh and others Vs. Janab SK. Alias Janab Ali Sk. and others, 29 DLR 81; AIR (36) 1949 Madras 282; 56 DLR 221; 22 BLC (AD) 254; 18 BLC (AD) 139; 33 CWN 958; 36 CWN 97 and 17 BLT (AD) 51 ref.

Mr. Probir Neogi, Senior Advocate with

Mr. Muntasir Mahmud Rahman, Advocate

. . . For the petitioners

Mr. Abdul Quayum, Senior Advocate with

Mr. Tapan Kumar Chakraborty, Advocate

. . . For the opposite parties

JUDGMENT

Soumendra Sarker, J: The Rule issued calling upon the Opposite Party No. 1 to show cause as to why the judgment and order dated 01.12.2016 passed by the learned District Judge, Patuakhali in Civil Revision No.66 of 2015 allowing the same and setting aside the judgment and order dated 19.11.2015 passed by the learned Joint District Judge, 1^st Court, Patuakhali in Title Suit No.99 of 1979 allowing the application under Order VI, rule 17 read with section 151 of the Code of Civil Procedure for amendment of the plaint and another application under section 151 read with section 152 of the Code of Civil Procedure for amendment of the judgment and decree passed in Title Suit No.99 of 1979 should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2. The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present petitioners as plaintiffs instituted the original Title Suit being No.99 of 1979 in the Court of learned the then Sub-ordinate Judge, Patuakhali for declaration of title and recovery of khas possession contending inter alia that the land appertaining to Mouza Dabluganj of Kolapara police station under Patuakhali District in khatian No.295 measuring an area 9.88 acres originally belonged to one Arob Ali Sarder. Arob Ali died leaving behind two sons namely Kashem Ali and Najem Ali. Najem Ali transferred his 08 annas share in favour of one Abdul Motaleb, the predecessor of the plaintiff-petitioners by a registered kabala deed dated 16.02.1940 and the possession was delivered in favour of the purchaser. The original kabala deed of the plaintiffs was lost due to devastating cyclone in the year 1943 and taking advantage of that; Kashem Ali and Najem Ali with an ill-intention managed to get their names recorded in R.S. and S.A. khatians. After the death of Abdul Motaleb, the plaintiffs being his only heirs possessing the suit land. The defendants while threatened the plaintiffs; the plaintiffs instituted the original suit.

3. The contrary case of the contesting defendants No.1-3 in short is thus, that the suit land originally belonged to Kashem Ali, who did never transfer the land in favour of the predecessor of the plaintiffs. The plaintiff’s predecessor only to grab the property created a forged document. The further case of the defendants is such that the plaintiffs have no right, title, interest and possession in the suit land. The defendants alleged that the original owner Arab Ali Sarder had two sons namely Kashem Ali and Najem Ali. Kashem Ali died unmarried leaving behind his only brother Najem Ali and after the death of Najem Ali his heirs are possessing the land.

4. During trial of the original suit the learned trial court after taking evidence from the sides of the respective parties, decreed the suit on contest by his judgment and decree dated 30.11.1985 and 07.12.1985 respectively. Subsequent to that judgment and decree, while the plaintiffs have been owning and possessing the suit property; they came to learn that a mistake has been committed by their engaged the then lawyer; in the plaint of the original suit and instead of actual R.S. plot No.4893 of R.S. khatian No. 296, the learned lawyer at the time of drafting of the plaint inserted R.S. plot No.4891 wrongly. The concerned R.S. khatian No.296 has been exhibited before the learned trial court; from where it is apparent that the R.S. plot is 4893 not 4891. The plaintiffs finding necessity to correct the plot number filed an application before the learned trial court to rectify the aforesaid clerical mistake in the judgment and decree passed in Title Suit No.99 of 1979 and the learned trial court by its judgment and order dated 19.11.2015 allowed both the applications for amendment of the plaint as well as amendment of the judgment and decree.

5. Being aggrieved, the defendants preferred a civil revision under section 115(2) of the Code of Civil Procedure in the court of learned District Judge, Patuakhali being Civil Revision No.66 of 2015 which was heard and disposed of by the learned District Judge, Patuakhali and the learned District Judge by the impugned judgment and order dated 01.12.2016 allowed the civil revision and set aside the order of the learned trial court.

6. Being aggrieved by and dissatisfied with the impugned judgment and order, the plaintiffs have preferred 2^nd Revision in this Court with leave under section 115(4) of the Code of Civil Procedure and obtained the Rule with an interim order of status quo.

7. During hearing of the Rule Mr. Probir Neogi the learned Advocate appeared on behalf of the petitioners while Mr. Abdul Quiyum, the learned Advocate appeared on behalf of the opposite parties.

8. The learned Advocate appearing on behalf of the petitioners submits that the learned 1^st court of revision during passing the impugned judgment and order committed gross illegality and irregularity. The learned Advocate further submits that the learned trial court was quite justified and lawful in allowing the applications for amendment, inasmuch as; the amendment which was sought for; was bona fide and due to the inadvertent mistake of the engaged lawyer for the plaintiff-petitioners. The learned Advocate further submits that the learned District Judge, Patuakhali has committed an error of law resulting in an error in the decision occasioning failure of justice without considering that, it is an imperative duty of the court to correct the mistake and the power of the learned court under section 152 of the Code of Civil Procedure is unlimited and as such the impugned judgment and order is liable to be set aside. The learned Advocate also submits that the learned 1^st Court of revision during disposal of the civil revision was totally misconceived in holding the view that the application for amendment is barred by limitation since there was no reason to hold such a view that the relief claimed by the plaintiff-petitioners was not within time. The learned Advocate in this context, referred a decision of this court reported in 56 DLR 221. The learned Advocate argued that the learned District Judge, Patuakhali at the time of passing the impugned judgment and order failed to appreciate that the plaintiff-petitioners in order to prove their case, adduced sufficient credible evidence and certified copy of the relevant R.S. khatian No.296 which was duly proved and exhibited and in that relevant khatian; there is no existence of R.S. plot No.4891. It is the mistake of the learned lawyer who was engaged on behalf of the plaintiffs and inserted the plot No.4891 instead of correct plot No.4893. Therefore, obviously; it was simply a clerical mistake which was inadvertent and bona fide. To rectify this wrong inclusion of plot number the plaintiff-petitioners while came to know about the misdeed of the lawyer, filed the application for amendment and the learned trial court rightly considering the facts and circumstances of the case along with the relevant R.S. Khatian allowed the application. The learned Advocate lastly submits that the citation of decisions given by the learned 1^st court of revision in the impugned judgment and order are not applicable in the instant case due to distinguishable facts. The learned Advocate in support of his arguments referred another two decisions reported in 29 DLR 81 and AIR (36) 1949 Madras 282.

9. As against the aforesaid submissions of the learned Advocate for the petitioners, the learned Advocate appearing on behalf of the opposite parties, opposing the Rule submits that the learned District Judge, Patuakhali during disposal of the civil revision committed no illegality or irregularity, rather; he was quite justified in allowing the civil revision and thereby setting aside the judgment and order passed by the trial court. The learned Advocate further submits that in fact, the decree which was passed by the trial court was on the unspecified land as described in the schedule of the plaint. There was no specification of the suit property, and it suffers from vagueness. The learned Advocate also submits that long after 30 years the applications for amendment were filed for correction of the plaint and judgment and decree which is mala fide and not tenable in the eye of law. The learned Advocate submits that under Order VII rule 3 and 4 of the Code of Civil Procedure the suit property must be specified, but the suit land which is described in the schedule of the plaint was not specified and on that schedule of the property the learned trial court illegally passed the judgment and decree. The learned Advocate lastly submits that the applications for amendment were time barred, and the learned District Judge, Patuakhali rightly treating the applications barred by limitation, passed the impugned judgment and order; which is not bad-in-law and not deserve interference of this Court. The learned Advocate in support of his contention referred some decisions reported in 22 BLC (AD) 254, 18 BLC (AD) 139, 33 CWN 958, 36 CWN 97 and 17 BLT (AD)51.

10. Considering submissions of the learned Advocates, having gone through the order passed by the learned trial court in Title Suit No.99 of 1979 on 19.11.2015 and the impugned judgment and order dated 01.12.2016 passed by the 1^st court of revision in Civil Revision No.66 of 2015 along with the relevant R.S. and S.A. khatians with the certified copes of plaint, judgment and decree, applications for amendment of the plaint as well as the judgment and decree passed by the trial court dated 07.12.1985 in Title Suit No.99 of 1979, it transpires that after the judgment and decree passed by the trial court in the original Title Suit No.99 of 1979, the learned trial court i.e. the learned Joint District Judge, 1^st Court, Patuakhali received two applications from the side of the plaintiffs, one for amendment of the plaint under Order VI rule 17 along with section 151 of the Code of Civil Procedure and the other for amendment of the decree under section 151 and 152 of the Code of Civil Procedure, and after the hearing; allowed both the two applications in holding the view that; on perusal of the record; it is evident from the face of the papers that the contested judgment and decree dated 30.11.1985 and 07.12.1985 respectively was passed on the plot No.4891 of R.S. khatian No.296 corresponding to S.A. khatian No.264, but in fact; in the relevant khatians there is no existence of plot No. 4891. The learned trial court also observed that, inasmuch as; there is a wrong insertion of the plot number in the decree; the decree has become in fructuous and therefore; relying upon a decision of this court given in the case of Chand Mia and others –vs.- M.A. Rajput Ghosh Bhadur & others, 56 DLR 221, the learned Joint District Judge, 1^st Court, Patuakhali allowed the applications for amendment. Subsequently, the learned 1^st Court of revision vide the impugned judgment and order dated 01.12.2016 in Civil Revision No.66 of 2015 holding the view that the proposed amendment was not sought for within the statutory period of limitation and after citation of some decisions held that the order passed by the trial court suffers from illegality, and accordingly the learned District Judge, Patuakhali allowed the revisional application filed before him and set aside the order of the learned trial court.

11. In this context; on meticulous consideration of the case records and the applications for amendment of the plaint as well as the decree passed by the trial court, I find that the plaintiffs to the suit obtained the judgment and decree from the trial court on 30.11.1985 and 07.12.1985 respectively, against which no appeal was preferred yet from the side of the defendants, and as such it stands good. Obviously it has been specifically asserted from the side of the plaintiffs that their the then engaged lawyer in advertently instead of actual plot No.4893 inserted 4891 in the plaint which have got no existence in the relevant R.S. khatian No.296 and S.A. kahtian No.264 and these khatians were produced before the learned trial court and after proof, those were marked exhibited. The learned trial court on the basis of wrong inclusion of plot number in the schedule of the plaint passed the judgment and decree which has become practically infructuous due to wrong plot number. The matter was not within the knowledge of the plaintiffs earlier, and while they came to learn about the misdeed of the then learned engaged lawyer on behalf of them, they filed the applications for amendment of the plaint and decree.

12. On perusal of the relevant papers I find that, apparently the wrong inclusion of R.S. Plot No.4891 is a bona fide mistake of the learned the then engaged lawyer of the plaintiffs, inasmuch as; in the relevant R.S. khatian No.296, there is no existence of that plot number 4891 and there exist plot No.4893. Hence, for rectification of the aforesaid inadvertent clerical mistake, which was bona fide; the application for amendment of the plaint and decree were preferred by the plaintiff-petitioners and the learned trial court was quite justified in holding the view that there is no mala fide intention or negligence on the part of the plaintiffs as because their engaged lawyer committed the misdeed in inclusion of the actual plot number in the schedule of the plaint, which is no doubt, not the latches of the plaintiff-petitioners, and it is a decided matter in our legal arena that for the latches or fault of the lawyer, the party can not suffer; as well as a decree cannot the infructuous. As soon as, the matter came into the notice of the plaintiffs, they filed the applications for amendment and as such the accidental mistake or inadvertent error, which was committed earlier, deserve rectification; which is not barred by any law. In this regard, the relevant provision of law incorporated in section 152 of the Code of Civil Procedure reads as follows:

“Clerical or arithmetical mistake in judgment, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”

13. Therefore, it is evident from the relevant law that there is no limitation of time for rectification of bona fide mistake, which is clerical or arithmetical mistake or accidental slip or omission. The statute is very much clear with regard to this, and it is a legislative recognition of the courts power to correct the fault which is bonafide and unintentional.

14. I find support of this, in the decisions referred to from the side of the learned counsel for the petitioners in the case of Ibrahim Sheikh and others –vs.- Janab Sk. alias Janab Ali Sk. & others, 29 DLR 81, and in the case law reported in 36 AIR(1949) Madras 282. Furthermore; with regard to limitation the decision cited from 56 DLR, 221 have got every nexus in this case. On the other hand, having every regard on the decisions referred to from the side of the learned counsel for the opposite parties, I am not out of place to advert that, due to distinguishable facts, features and circumstances, those are not applicable in the instant case.

15. In the foregoing narrative, before parting, I must observe that the learned District Judge, Patuakhali, in passing the impugned Judgment and order, apparently committed an error in law, resulting in an error in the decision, occasioning failure of justice and thereby it deserve interference of this court.

16. In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 01.12.2016 passed by the learned District Judge, Patuakhali in Civil Revision No.66 of 2015 allowing the same and setting aside the judgment and order dated 19.11.2015 passed by the learned Joint District Judge, 1^st Court, Patuakhali in Title Suit No.99 of 1979 allowing the application under Order VI Rule 17 read with section 151 of the Code of Civil Procedure for amendment of the plaint and another application under section 151 read with section 152 of the Code of Civil Procedure for amendment of the judgment and decree passed in Title Suit No.99 of 1979 is hereby set aside.

17. The order of status quo granted earlier by this court at the time of issuance of the Rule stands vacated.

18. Send down the lower court’s records immediately and communicate the judgment and order at once.

Ed.

Civil Revision No. 231 of 2017

RHD Bangladesh Vs. Nazir –Basic Joint Venture Bangladesh & ors. [4 LNJ (2015) 110]

Case No: Arbitration Application No.20 of 2012

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Fida M. Kamal,Mr. Mohammad Mehedi Hasan Chowdhury,Mr. Apurba Kumar Biswas,Mr. Md. Ashik Al Jalil,Mr. Rafiq ul-Hoque,Mr. Faheemul-Huq,Mr. Margub Kabir,Dr. A.K.M. Ali,Mr. A. K. M. Rabiul Hassan,,

Citation: 4 LNJ (2015) 110

Case Year: 2015

Appellant: RHD Bangladesh

Respondent: Nazir–Basic Joint Venture Bangladesh & ors.

Subject: Arbitration,

Delivery Date: 2014-02-19

HIGH COURT DIVISION
(STATUTORY ORIGINAL JURISDICTION)

Md. Rezaul Hasan, J.

Judgment on
19.2.2014

}
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Roads and High ways Department, Roads Division, Ministry of Communication, Government of the Peoples Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka represented by its Chief Engineer.
. . .Respondent-Petitioner
-Versus-
NAZIR-BASIC Joint Venture (Bangladesh), H-86 (First Floor), New Airport Road, Banani, Dhaka-1213 Bangladesh and others.
. . .Opposite parties.

Arbitration Act (I of 2001)
Sections 33, 34, 42(2) and 55
The original award losses its originality when the Arbitrator corrects, interprets and add any additional claims and in such cases an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award.
There is no justification, as contended, to accept the submission in view of the mandate of section 34 and considering the scheme and purpose of the Arbitration Act that because the application under section 33 of the Act was filed and it was rejected subsequently, therefore, the limitation period commenced afresh from the date of such decision of the award. It is contemplated only on a situation where the Arbitrator corrects or interprets and/or add or decide to add any additional claims and modified the award as only in such cases the original award losses its originality and therefore an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award. Therefore the party who received the award after deciding the application under section 34(3) of the Act, may get the benefit of fresh commencement of limitation from the receipt of the modified and/or corrected award and not otherwise.” . . . (14)

Arbitration Act (I of 2001)
Sections 42(2) and 55(1)
Where there is a conflict between the provisions of special law and general law, the provisions of special law will prevail. One cannot be allowed to be benefited from its own default.
The words occurring in section 55(1) of the Act that “HC BCel ¢hd¡e¡hm£ ü¡fr”, unambigu-ously and clearly indicates that the Limitation Act, 1908 will apply only subject to the special limitation prescribed in the Arbitration Act 2001. Since, section 42(2) of the Act has prescribed special period of limitation, the Act itself being a special law, the petitioner ought to have filed its petition for setting aside the award within 60 days from 29.11.11, i.e. within 28.1.2012. For not filing the petition within 28.1.2012 the same is clearly barred by special limitation prescribed under section 42(2) of the Act. The petitioner cannot be allowed to be benefited from its own default, least it will be a convenient excuse to any unscrupulous person to frustrate the special limitation by resorting to such tactics and because there is no proviso to section 42(2) of the Act making any room for exclusion of time on this or any other ground. . . . (15)

Arbitration Act (I of 2001)
Sections 42 and 43
There is no cause of action for filling this petition under section 42 sub-section (2) read with section 43 of the Act. Because, admittedly the petitioner has filed an application under Article 29(2) of the ICC Rules seeking the interpretation of the award, not seeking to set-aside the award if the petitioner had any cause of action for filing an application to set aside award then they would have to file this petition immediately after receiving the award on 29.11.2011, at least within 60 days there from, but they did not. Therefore, it can be safely concluded the petitioner had no cause of action to file this petition for setting aside the award. Moreover, the respondent-petitioner (Roads & High Ways) having not deposited the additional cost fixed by the ICC court of Arbitration, for hearing of the application filed under Article 29(2) of the ICC Rules of Arbitration seeking interpretation of the award dated 27.11.2011, the submission of the learned advocate for the petitioner that the said application was filed bonafide can hardly make any favourable impression. ...(20)

Amit Suryakant Lunavat Vs. Kotak Securities, Mumbai, and another, 2011 (2)R.A.J. 142 (Bom):; Mol Enterprises Inc. Vs. Government of the People’s Republic of Bangladesh, 7 BLT (HCD) 1999, 265 and Rupali Bank Limited and other Vs. Tafazal Hossain and others, 44 DLR (AD) 260 ref.

Mr. A. F. Hassan Arif, Senior Advocate with
Mr. Md. Ashik Al Jalil, Advocate

. . . For petitioner

Mr. Rafiq ul-Hoque, Senior Advocate with
Mr. Faheemul-Huq, Advocate
Mr. Margub Kabir, Advocate

. . .For respondent No.4

Mr. Fida M. Kamal, Advocate with
Dr. A.K.M. Ali, Advocate

. . . For respondent No.1

Mr. Mohammad Mehedi Hasan Chowdhury. Advocate with
Mr. A. K. M. Rabiul Hassan, Advocate
And
Mr. Apurba Kumar Biswas, Advocate

. . . For respondent No.2

Arbitration Application No.20 of 2012

JUDGMENT

Mr. Justice Md. Rezaul Hasan

This is an application filed by the petitioner Roads and High ways Department under section 42(2) read with section 43 of the Arbitration Act, 2001 (herein after referred to as the Act) for setting aside the award dated 27.11.2011 passed by an Arbitration Tribunal in Dhaka comprising of Mr.Sheikh Fazlur Rahman PE in ICC International Court of Arbitration Case No.15642/JEM/MLK/CYK.

For the purpose of disposal of this application the relevant facts, in brief, are as follows:

The petitioner Roads and Highways Department, Roads Division, Ministry of Communication, Government of Bangladesh, after observing all formalities entered into 5 contracts of Road Maintenance Component (RMC) under the Road Maintenance and Improvement Project (RMIP) in different location in the country and contract No.1, 2, 3, 4 & 5 were signed with 5 separate contractors, namely (1) Nazir-Basie JV, (2) OSE-CPC JV, (3) Islam Trding Consortium Ltd (4) AKT-Xerbel JV, (5) Bengal Development Corporation Ltd. All the above contracts were planned as short term contracts with completion period of 12 months only. The period of Contract No.1 and 2 was, during the pre-bid meeting, increased from 12 months to 15 months as these contracts involved importation of cold milling and recycling machineries. Thus the stipulated time for completion of contract No.1 and 2 was fifteen (15) months, whereas the duration for contract No.3, 4 and 5 was twelve (12) months only.
The arbitrations arises from 04(four) contracts of Road Maintenance Component (RMC). The request for arbitration was initially filed on behalf of five claimants, including AKT-Xerbel JV which withdrew from the arbitration with consent of all the parties. No party objected to commencing one arbitration in respect of all four contracts. The project under the contracts were jointly funded by Government of Bangladesh (GOB) and the Asian Development Bank (ADB). The said four contractors, being M/S. Nazir Basic Joint venture, M/S. OSE and CPC Joint Venture, M/S. Islam Trading Corporation Limited (ITCL) and M/S. Bengal Development Corporation Ltd. (BDC) (herein after collectively referred to as the contractors or claimants), vide their letter dated 20 May 2008, bearing ref coc/ Dhaka/1358(02) referred the instant contractual dispute with the present petitioners to arbitration under the Rules of Arbitration of the International Chamber of Commerce in force as from 1^st January 1998 (ICC Rules of Arbitration) as per clause 67.3 common to all the contracts.
The claimants and the present petitioners jointly nominated that Arbitration Tribunal consisting of a sole arbitrator which nomination was then confirmed by the Secretary General of the International Chamber of Commerce International Court of Arbitration (ICC Court) on 3^rd October 2008 pursuant to Article 9(2) of the ICC Rules of Arbitration. The Terms of Reference in the arbitration (“TOR”) were finalized and signed in a meeting with the claimants and the respondents on 31 March 2009, and were communicated to the ICC Court on 23 April 2009 pursuant to Article 18(2) of the ICC Rules of Arbitration. According to the TOR, the following issues were formulated for determination in that arbitration:
“It is to be ascertained whether the claimant under the tender clause 70.2 regarding changes in cost due to subsequent legislation, which reads as follows: If, after the date 28 days prior to the latest date for submission of tenders for the contract there occur in the country in which the works are being or are to be executed changes to any National or State Statute, Ordinance, Decree or other Law or any regulation or bye-law (sic) of any local or other duly constituted authority, or the introduction of any such State Statute, Subsequent Ordinance, Decree, Law, regulation or bye-law (sic) which causes additional or reduced cost to the contractor, other than under sub-clause 70.1 in the execution of the contract, such additional or reduced cost shall, after due consultation with the employer and the contractor, be determined by the engineer and shall be added to or deducted from the Contract price, is entitled to any additional costs.”
The claimants took the position that gazette notification published by the government and the orders passed on the recommendation of Bangladesh Petroleum Corporation, effecting changes in the prices of fuel and bitumen are to be treated as falling within the scope of clause 70.2 and, therefore, additional cost shall have to be paid to the contractors by the employer due to increases in the prices of fuel and bitumen as per clause 70.2.
The present petitioner took the position that clause 70.2 of FIDIC is not made applicable to procurement process. Price variation under clause 70.2 of FIDIC is applicable only in the case of change in the cost of the contract due to introduction, amendment or repeal of any law relating to revenue matter or changes in the currency rates etc in the country in which the works is being performed. Determination of construction inputs i.e. price of materials and labour are not the area of legislation and thus such determination cannot be considered in the calculation of cost variation under clause 70.2 of FIDIC. Administrative decision based on market economy determines prices of construction inputs if and when necessary and such determination of prices in respect of construction inputs (material and labour) are considerable issues in calculating the price variation under clause 70.1 of GCOC, which is not applicable in the present contracts.
That the work under the instant contracts constitutes mainly recycling of old pavement of the roads under the contracts and asphalt overlay thereafter i.e. mostly machine oriented and bituminous works. The prices of fuel and bitumen were increased during implementation of the work. The Ministry of Power, Fuel and Mineral Resources, Government of Bangladesh, through gazette notifications are effecting change in price of fuel from time to time. The changes in the price of bitumen were also effected by the said Ministry through office orders on the advice of Bangladesh Petroleum Corporation ( in short ‘BPC). Subsequently, the said Ministry, vide paragraph (b) of its memo No. Jalani/(op-1) BPC-29/2001 (part-1) 504 dated 21.11.2001 authorized BPC to fix internal sale price of bitumen depending on the international price of bitumen from time to time in future, Since then BPC has been publishing change in the price of bitumen. BPC by notification dated 18.07.2006 has increased the domestic price of bitumen from the price under its previous notification dated 09.11.2004 with reference to the memo No. Jalani (op-1) BPC-29/2001) (part-1) 504 dated 21.11.2001 of the Fuel and Mineral Resources Division, Ministry of Power, Fuel and Mineral Resources of the Government of the Peoples Republic of Bangladesh.
That the contractor claimed price variation under clause 70.2 of FIDIC claming additional cost due to increase of price of fuel and bitumen referring the above notifications. Apart from bitumen and fuel the contractors in their claim have included increase in cost in other materials as well. The consultant rejected the additional claim of the contractors/ claimants due to increase of price of construction materials except the additional claim for fuel and bitumen purportedly under clause 70.2 and certified and forwarded the same for approval of the respondents/employer. The respondent /employer, vide memo No. Mate-4/02 394-CE dated 13.07.2008, conveyed non eligibility of contractor’s claims and thereby rejected the additional claim of the contractors considering the same being not entitled by the contractors under clause 70.2 of COPA. Subsequently the engineer, vide his memo No.2348 dated 15.07.2008 addressed to M/S. Nazir Basic Joint Venture, Contractor of Contract No.1, memo No.2349 dated 15.07.2008 addressed to M/S. OSE & CPC Joint Venture. Contractors No.2, memo No.2350 dated 15.07.2008 addressed to M/S Islam Trading Consortium Limited, Contractor of Contract No.3, memo No.2352 dated 15.07.2008 addressed to M/S. Bengal Development Corporation Ltd. Contractor of Contract No.5. conveyed the decision of the engineer to the contractors, hence the arbitration.
That then an arbitration proceeding was started against the petitioner Roads and Highways Department (i.e. the respondent before the ICC Court of Arbitration) under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) and the dispute was heard by an Arbitral Tribunal comprising of a sole arbitrator Mr. Sheik Fazlur Rahman PE of House No.48B, Road No.35A, Gulshan, Dhaka-1212 Bangladesh. The Arbitral Tribunal by a decision rendered Final Award, on 27.11.2011.
In the final award dated 27.11.2011 (Annexure-A to the petition), after giving description of the parties, reference has been made to the procedural history, the terms of reference (TOR), referred to at paragraph No. 6 of the award, settled on consensus of all parties to the arbitration, name of the learned Advocates representing the parties i.e. claimants and the respondent (petitioner before this court), the learned arbitrator has recorded in paragraph No. 7 of the award that, after examination of the pleadings of both the parties (claimants and respondent) and the statement of expert witness of both the parties it is observed that applicability of tender clause 70.2 is the main issue which is to be settled by the Arbitrator and there is no other issue and to this both the parties agreed. At paragraph No. 11 of the award, it has been recorded that the claimant No. 3 had lodged challenge vide a letter dated 29.12.2010 as to the appointment of the sole arbitrator and he, alongwith the claimants No. 1,2 & 4 and the respondents (the petitioner before this court) was requested by the Secretariat of the ICC court to offer their comments as per Article 11(3) of the ICC Rules of Arbitration in respect of the issue raised by the claimant No. 3. The sole arbitrator and claimants No. 1, 2 and 4 submitted their comments, but the respondent (petitioner in the case before this court) did not submit any comment. The sole arbitrator also refrained from holding further hearing in the interest of justice. Considering the representations and all facts, ICC International Court of Arbitration, in its session held on 27 January 2011, rejected the challenged lodged on behalf of claimant No.3. The claimant No. 3 thereafter did not participate in the hearing, but has not withdrawn it’s claim either. Similarly, at paragraph No. 17 of the award it has been recorded that it was decided in the Review Meeting held on 31^st July 2010 that the only issue before the Tribunal was applicability of GCOC Clause 70.2 as amended by COPA and there was no other issue. It has further been recorded in the award at paragraph No. 13 of the award that an expert witness Mr. Ibne Alam Hasan made the deposition at the instance of the respondent (petitioner in this case) and the said expert witness was cross-examined by the counsel for the claimants No.1, 2 and 4. In paragraph No. 14 it has been stated that the hearing was recorded in audio CD (Compact Disk). It was decided, in the course of arbitration, that the parties would submit their closing statements simultaneously on 26 March 2011. Claimants No.1, 2, 4 and Respondent sought a time extension for the said step, which was allowed until 16 April 2011. After receipt of the closing statements on the said date, the same were exchanged and the proceedings were declared closed on 20 April 2011 as per Article 22(1) of the ICC Rules of Arbitration. The award has also referred to the claim and to the provisions of the original clauses 70.1 and 70.2 of the GCOC, as amended by COPA, and have also quoted the contents there of at paragraph No. 74 of the award and gave interpretation of the said clauses at paragraph No. 75 and 77 of the award. Paragraph Nos. 76 and 78 of the award contain the arbitration’s deliberation on the claim. Thereafter, narrating the summary of facts, the submission of the claimants and of the respondents the learned arbitrator has made reference to section 3 of the Petroleum Act, 1974 that empowers the Government to regulate and marketing of petroleum and has also referred to the provisions of section 6 of Bangladesh Petroleum Ordinance, 1976 narrating the functions of the BPC. He has also considered the definition of “local authority” given in section 3 (28) of General Clauses Act, 1897 and placed reliance upon the decision reported in 32 DLR(AD) 83 to arrive at the conclusion if the BPC is a ‘local authority’. In order to ascertain the meaning of the word ‘law’, the learned Arbitrator has referred to Article 152 of the Constitution and the decision reported in 47 DLR 309. In the premise recorded therein, the learned arbitrator has passed the award as follows:
“It is hereby decided that in view of the reasons stated hereinabove, the claim of the three Claimants No.1, 2 and 4 has succeeded, and it is awarded that the said three Claimants are entitled to additional cost in accordance with Clause 70.2 of the GCOC as amended by the COPA. Since the claim of the Claimants No.1, 2 and 4 has succeeded, the claim of Claimant No.3 also succeeds for the same reasons.
Each party shall bear its own legal and other costs in relation to this arbitration.
The costs of arbitration fixed by the ICC Court as US$ 136,000 shall be borne by both sides equally.
All other claims are rejected.”
That the present petitioners thereafter filed an application before the ICC Arbitral Tribunal under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011 seeking interpret-ation of the award. But ultimately Mr. Khong Chong Yee counsel, Secretariat of the ICC International Court of Arbitration, through a letter dated 17.4.2012 (Annexure-‘B’ to the petition) stated as follows:
“Respondents requests a further extension of time of 8 weeks from 16 April 2012 within which to pay the additional advance on costs fixed by the Court at US$ 5000. We note that since the Court fixed the additional advance on costs on 19 January 2012, some four months ago, no payment of US$ 5000 has been received. In light of all the circumstances, Respondent’s Article 29 application is considered withdrawn.”
The petitioners states, at paragraph No. 13 of the petition, that since the ICC Arbitral Tribunal final order in review application was received by this petitioner after 17.04.2012 the limitation at 60 days to be counted at least from 17.04.2012 instead of 27.11.2011 and this petitioner prays for accepting this application.
The opposite party No.4 has filed an application for rejection of the substantive petition alleging, amongst other, that the above application has been filed by the petitioner under Section 42(2) read with Section 43 of the Arbitration Act, 2001 for setting aside the award dated 27.11.2011 passed by an Arbitration Tribunal comprising of Mr. Sheikh Fazlur Rahman PE in favour of the opposite party Nos. 1 to 4 and against the petitioner in ICC International Court Arbitration Case No. 15642/JEM/MLK/CYK; that the arbitration arose from 4 (four) contracts of the Road Maintenance Component (RMC) under the Road Maintenance and Improvement Project awarded to four different contractors, being the opposite party Nos. 1 to 4, by the Roads and Highways Department (RHD) of the Ministry of Communication of the Government of Bangladesh. The parties did not object to the commencement of one arbitration proceeding in respect of all four contracts. The General Conditions of Contract (GCOC) as amended by the Conditions of Particular Application (COPA) in the four contracts were common/similar. The arbitration was an “international commercial arbitration” within the definition given in Section 2(c) of the Arbitration Act, 2001 since the claimants in the proceeding included two joint ventures having parties incorporated in a country other than Bangladesh; that by the award, the Arbitration Tribunal ordered that the opposite party Nos. 1 to 4, i.e. the claimants in the arbitration proceeding, are entitled to additional cost in accordance with the Clause 70.2 of GCOC as amended by the COPA, that the parties are to bear their own legal and other costs and that the costs of the arbitration fixed at USS 136,000.00 shall be borne by both sides equally; that Clause 67 of the GCOC provided for Settlement of Disputes; Clause 67.3 provided, amongst others, that where the decision of the Engineer under the GCOC had not become final and binding and amicable settlement has not been reached, the dispute shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed under such Rule; that in the instant case, a reference to arbitration was made in accordance with Clause 67 to a sole arbitrator appointed as per the said Rules by the Court of Arbitration of the (ICC); that section 42(2) of the Arbitration Act, 2001 provides that the High Court Division may set aside any arbitral award made in an international commercial arbitration held in Bangladesh on the application of a party within sixty days from the receipt of the award; that the application filed by the petitioner does not state the date on which it received the award; hence, it shall be deemed that the award was received on the date on which it was made, i.e. 27.11.2011; that it may be noted that the application for setting aside the arbitration award dated 27.11.2011 was filed on 14.06.2012, i.e. 200 (two hundred) days after the said award was passed; that in paragraph No. 11 of the application, the petitioner has stated that it filed a review application before the ICC Tribunal under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011, but that the said application was considered withdrawn by the ICC International Court of Arbitration as stated in its letter dated 17.04.2012 for the petitioner not having complied with an order of the said Court passed on 19.01.2012 for payment of additional costs; that the petitioner in paragraph No. 12 of the application has contended that since it received the final order in the review application after 17.04.2012, therefore limitation of 60 days for filing the application to set aside should be counted from 17.04.2012 instead of 27.11.2011. However, no prayer has been made for setting aside such order dated 17.04.2012; that while admitting the application by order dated 19.06.2012, the Hon’ble Court admitted it subject to any objection which may be raised by the opposite parties with regard to limitation at the time of hearing; that it is submitted that the application filed by the petitioner is liable to be rejected inasmuch that it has been filed beyond the limitation period prescribed by law for filing an application for setting aside an arbitration award rendered in an international arbitration proceeding; that it is submitted that there is no scope under the Arbitration Act, 2001 to construe a subsequent order recording withdrawal of an application for review of an arbitration award as extending the time within which any application for setting aside such arbitration award has to be filed; that it is submitted that the Arbitration Act, 2001 is a special law, and hence there is no scope for application of the provisions Section 5 of the Limitation Act, 1908 to extend the time for filing an application to have such award set aside.
The petitioner (respondent in the ICC International Court of Arbitration) has filed an affidavit-in-opposition, sworn on 6.12.12, against the application for rejection of the substantive petition denying all the material allegations made in the application for rejection of the petition filed under section 42(2) of the Act and further stating that Article 29(2) of the ICC Rules for Arbitration provides for filing of an application before the secretariat of ICC for interpretation of any part of the award by the Tribunal within 30 days from receipt of the award, which is corresponding to the provisions of section 40(2) of the Arbitration Act, 2001 of Bangladesh. According to the provisions of Article 29(2) of ICC Rules the petitioner, on 28.12.2011, filed an application for clarification of the award dated 27.11.2011. In paragraph No. 1 of the said application it was clearly stated that the petitioner received the award on 29.11.2011 and the application dated 28.12.2011 was thus well within time as per Article 29 of the said ICC Rules. After receipt of the said application the Secretariat required the petitioner to remit US$. 5000/- as additional advance on costs subject to later readjustment in respect of the said application under Article 29 of the ICC Rules and pursuant to Appendix II to the said Rules. The petitioner took immediate step to pay the said amount but could not able to make the payment within time as fixed by ICC because, being a government entity the petitioner requires approval from the concerned authorities through several official process for sanction of fund and remitting foreign exchange abroad and that in order to complete the process of the governmental formalities regarding approval of fund and remittance of foreign exchange the petitioner needs more time to comply with the ICC instruction. Therefore, the petitioner further prayed for 8 weeks time to pay the additional advance on costs of US$. 5000/- by letter dated 13.04.2012 pin pointing the aforesaid difficulties. But the said application was rejected by the ICC by order dated 16.4.2012 declaring the application of the petitioner for clarification of award as withdrawn. It is further stated that as per the provision of Article 29(3) of the ICC Rules and section 40(4) of the Arbitration Act, 2001, the decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. Therefore, the said order dated 16.4.2012 of ICC deciding the application of the petitioner under Article 29 of the ICC Rules for interpretation of award has been culminated with the provision of ‘termination of the proceeding’ by declaring/ passing the final award under section 41 of the Arbitration Act, 2001. As such the period of limitation is to be computed from the date of finality of the award i.e. from the date of termination of the proceeding on 16.4.2012. The instant Arbitration application under section 42 has been filed by the petitioner on 14.6.12 i.e. within 60 days from the date of final award/termination of the proceeding dated 16.4.2012 and as such the same is very much within time; that it is submitted that the contention of the opposite party No. 4 that the provisions of Limitation Act is not applicable in the present case is not correct as because section 55 of the Arbitration Act 2001, makes the Limitation Act applicable as they apply to the court proceedings subject to the provisions of the Arbitration Act. Therefore, all the subm-issions made by the opposite party No. 4 in its application for rejection of the Arbitration application have no substance and misconst-rued and as such the said application is liable to be rejected.

The matter has been taken up for hearing and the learned Advocate for the applicant-opposite party No.1 has drawn attention of the court to the admission order dated 19.6.2012, wherein it has been recorded that “Let this application be admitted for hearing subject to any objection which may be raised by the opposite parties with regards to limitation at the time of hearing of the application”. He has also made reference to the application for rejection of the substantive petition as well as to the affidavit-in-opposition filed by the petitioner against the application for rejection. Accordingly, all the parties have agreed that the issue regarding limitation shall be decided first, for the reason that if the substantive petition is found to have been barred by limitation then there is no scope to enter into the merit of the petition. Accordingly the issue as to whether the substantive petition is barred by limitation has been taken for decision as a preliminary issue.

At the out set, the learned Advocate for the petitioner Mr. A. F. Hassan Arif, appearing along with Mr. Md.Ashik Al Jalil, having read out the application for rejection of the substantive petition and the affidavit-in-opposition filed against the same as well as drawing my attention to the statements made in the substantive petition, first of all submits that the petitioner has received the award on 29.11.2011. Thereafter the petitioner has filed an application to the secretariat of the ICC International Court of Arbitration, as per Article 29(2) of the ICC Rules, on 28.12.2011, ‘for clarification of the Award dated 27.11.2011’. Article 29(2) of the ICC Rules make provisions for filing an application, within 30 days, seeking interpretation of the award passed by the Arbitral Tribunal. Accordingly, the petitioner has filed an application seeking interpretation of the award within 30 days time i.e. on 28.12.2011 from the date of the receiving the award. As such, he further submits, the step taken before the secretariat of the ICC Court of Arbitration for interpretation of the award was quite within time limit prescribed by Article 29(2) of the ICC Rules. Thereafter, the Counsel, Secretariat of the of ICC International Court of Arbitration, that owing to the respondent’s (petitioner’s) default to pay the additional advanced cost US$ 5,000/- fixed by the court, respondent’s Article 29 application is considered withdrawn, vide the letter dated 17.4.2012 reference 15642/JEM/MLK/CYK (Annexure-B to the substantive petition), although in affidavit-in-opposition this date has been erroneously written as 16.4.2012. However, the petitioner thereafter has filed the substantive application, under section 42(2) read with section 43 of the Act, on 14.6.2012, before the High Court Division and that was admitted on 19.6.2012. He further submits that the decision of the arbitral tribunal, Communicated by it’s letter dated 27.4.2012 (Annexure-B), in substance is to be treated as addendum to the award and the period of limitation shall start from 17.4.2012. Counting the date from 17.4.2012, he continues, the petitioner has filed the petition within 60 (sixty) from receiving the award days i.e. on 14.6.2012. Accordingly, he submits that the petition is not barred by limitation prescribed under section 42 sub-section (2) of the Act, that requires that an application to set aside the award should be filed within 60 (sixty) days from receiving the award. The learned Advocate further submits that even if the petition is otherwise treated to have been filed after 200 days from receiving the award on 29.11.2011, as claimed by the applicant-opposite parties, the same will not render this substantive petition barred by limitation in as much as sub-section (1) of section 55 of the Act provides that the provision of Limitation Act, 1908 shall be applicable in respect of any proceeding before this court. That being so, the petitioner has adequately explained the reason as to why and under what circumstances it has filed the petition on 14.6.2012. He also submits that the step taken before the Arbitral Tribunal, as per Article 29(2) of the ICC Rules, was taken bonafide by the petitioner and the delay took place in the process of termination of the arbitration proceeding on 17.4.2012 (Annexure-B) has been sufficiently explained in paragraph 4 of the affidavit-in-opposition. Hence, he also submits, that the delay occurred is liable to be condoned under section 5 of the Limitation Act read with section 55(1) of the Arbitration Act (the Act). However, the learned Advocate for the petitioner has frankly conceded that if the petition is barred by limitation then there is no scope to enter into the merit of the petition for the purpose of the disposal of the same. In reply to a query made from the Bench the learned advocate has also frankly conceded that it is difficult to fit the decision dated 17.4.2012 (Annexure-B) within the meaning or definition of ‘award’. In view of the submission made and in the facts and circumstances of the case, the learned Advocate emphatically submits, that the petition is not barred by limitation and it has been duly admitted by the court on 19.6.2012. Accordingly he has prayed that the petition for rejection has not merit and the same is liable to be rejected.

The learned Advocate Mr. Rafiq-ul Haque, alongwith learned advocates Mr. Fahimul Haque and Mr. Marub Kabir, appearing for the applicant-respondent No.4, on the other hand, submits that, admittedly and as per record, the petitioner has received the award on 29.11.2011. After expiry of 29 days the petitioner has filed an application on 28.12.2011 before the secretariat of the ICC International Court of Arbitration, as per Article 29(2) of the ICC Rules, seeking interpretation of the award. It is also admitted by the petitioner that they have received a letter dated 17.4.2012 (annexed to the substantive petition as Annexure-B) whereby the Secretariat of the ICC International Court of Arbitration has communicated its decision that for non-payment of the additional cost being US $ 5,000, fixed by the ICC court of arbitration, even after expiry of 4 months, their application under Article 29(2) is considered withdrawn. Thereafter the petitioner claims that they have filed this application on 14.6.2012. In between 17.4.12 (the date of filing application under Article 29) to 14.6.2012 (the date of letter of the ICC Secretariat), the learned advocate goes ahead, 58 days time has elapsed. This 58 days time and previous 28 days time [gone before filing application under Articles 29(2) of the ICC Rules] counted together arrives at 86 days. At least this 86 days time has elapsed before 14.6.2012, on which the petitioner claims to have submitted its petition. As such, according to the petitioner’s own admission, the petition has not been filed within 60 days time prescribed in section 42 sub section (2) of the Act. In otherwords, the petition is not filed within 60 days of receiving the award on 29.11.2011, even if reliance is placed on the petitioner’s own admission. Indeed, the learned Advocate further submits, there is no scope to exclude the time that was wasted in the course of filing application under Article 29(2) of the ICC Rules on 28.12.2011 to 17.4.2012, because the decision of the secretariat of ICC International Court of Arbitration, communicated in their letter dated 17.4.2012 (Annexure-B), has not modified, amended or interpreted the award. By that letter dated 17.4.12 (Annexure-B) the application filed by the respondent-petitioner was only ‘considered withdrawn’ for non-payment cost fixed by the ICC Court of Arbitration, even after lapse of 4 months. Hence the intimation conveyed in letter dated 17.4.12 (Annexure-B) does not, in any way, affected the originality of the award, nor it can be treated as an award or it’s interpretation or modification, whatsoever. More so, the decision conveyed in letter dated 17.4.2012 that the Article 29(2) was ‘considered withdrawn’ was conveyed for the default of the petitioner in depositing the additional advanced cost US$ 5,000 on 19.1.2012. The petitioner cannot take advantage of their own default, nor they can interpret the same as an addendum to the original award. As such the entire period of 200 days, that has elapsed before filing this petition under section 42(2) read with section 43, is to be counted and ex-facie the petition is barred by special period of limitation prescribed in sub-section (2) of section 42. In support of his contention the learned Advocate for the applicant-respondent No.4 has referred to the decision reported in 2011 (2)R.A.J. 142 (Bom): Amit Suryakant Lunavat Vs. Kotak Securities, Mumbai, and another decision reported in 7 BLT (HCD) 1999 page 265: Mol Enterprises Inc. Vs. Government of the People’s Republic of Bangladesh. The learned Advocate also submits that the application dated 28.12.2011 was filed by the petitioner under Article 29(2) of the ICC Rules for interpretation of the award and not for setting aside the award. As such, admittedly there was no cause of action to file any application for setting aside the award and if the petitioner had any cause of action at all to file a petition for setting aside the award then they would have filed this petition under section 42 (2) read with section 43 of the Arbitration Act within 60 days from 27.11.2011, the date of receiving the award, instead of filing the application under Article 29 (2) seeking interpretation of the award. There is no other forum, he continues, to file the petition for setting aside the award except that as provided for under section 42(2) of the Act. Since the petitioner has not come before this court with this application under section 42(2) read with section 43, within the period of 60 days, as prescribed in section 42(2) of the Act, so this petition is hopelessly barred by limitation and there is no cause of action for filing this petition. He also submits that because of the inordinate delay in the disposal of this matter the opposite parties have been prejudiced seriously due to financial hardship for non-payment of their claim and in the filed of trade and commerce time is an essence. Besides, the futile step taken by the petitioner, he submits, is bound to frustrate the spirit of introducing the scheme of ADR/ Arbitration in several statute as a matter of public policy for settlement of disputes within the soonest possible time. In that this view of the matter, the learned counsel has prayed for rejection of this substantive petition as barred by limitation and for want of cause of action as well as for appropriate order to implementing the award.

The learned Advocate Mr. Mohammad Mehedi Hasan Chowdhury, appearing for respondent No.2, while expressed his concurrence with the submissions advanced by the learned Advocate for the respondent No.4, has further added that the letter dated 17.4.2012 (Annexure-D) has been issued owing to the default of the petitioner in depositing the cost fixed by the court of Arbitration, within the time. The cost was due pursuant to filing of the application under Article 29(2) of the ICC Rules, seeking interpretation of the award. The aforesaid letter dated 17.4.2012 cannot be interpreted to mean that the ICC Court of Arbitration has rejected the application considering the same as unnecessary or impossible, to invoke the provisions of clause (c) of section 41(2) of the Act. As such the submission of the learned Advocate for the petitioner that the arbitration proceedings should be deemed to have been terminated on 17.4.2012 as per clause-(c) of sub-section (2) of section 41 of the Act is devoid of any substance and far from the facts on record. In fact, he further submits, the arbitration proceedings has been concluded or came to an end upon passing of the award on 27.11.2011 and the limitation period shall be counted from the date of receiving the award on 29.11.2011 by the petitioner, as admitted by the petitioner at paragraph No. 4 of their affidavit in opposition filed against the petition for rejection. Hence, limitation period of 60 days is to be counted from 29.11.2011, on which date the petitioner has admittedly received the award. In either circumstances the petition is barred by limitation as has been rightly pointed out by the learned Advocate for the applicant- respondent No.4, he also adds. If there were any scope to accept the submission of the learned Advocate for the petitioner that the time elapsed between 28.12.2011 to 17.4.2012 is to be excluded then, he continues, the petition is filed, at least after 88 days. Whereas, in fact it has been filed after 200 days. Next, referring to an unreported decision of this Division, passed in Arbitration Application case No.9 of 2013 and Arbitration Application Case No.10 of 2013, in which the Roads and High ways Department was opposite parties, this court has decided in a single judgment that the time limit of 60 days shall be counted from date the petition has been posted in the daily cause list for admission hearing, not from the date of swearing affidavit and in those cases both the petitions were found time barred since those were filed after expiry of 60 days period and the awards given in favour of the Roads and High way Department sustained. The same principle shall apply to the facts and circumstances of the present case. He, also submits that the award dated 27.11.2011 (Annexure-A to the petition) is very much clear and complete in itself. Hence, the respondent-petitioner did not pursue their application dated 28.12.2011 filed under Article 29(2) of the ICC Rules, nor deposited the cost fixed by the ICC court of Arbitration, in the result that application seeking interpretation of the award was considered withdrawn. As, such the petitioner should not deprive the Claimants from the fruit of the ‘award’ given in their favour by further lingering their claim. Accordingly he prays that the petition is liable to be rejected as barred by limitation and not filed bonafide.

The learned Advocate Mr. Fida M. Kamal, appearing alongwith the learned Advocate Dr. A.K.M.Ali for respondent No.1, has adopted the submissions made by the learned counsels for the respondent No.4 and respondent No.2 that the petition is barred by limitation in the facts and circumstances of this case considered with reference to the special periods of limitation prescribed in section 42(2) of the Act.

I have heard the learned Advocates appearing for the petitioner, the learned advocate appearing for applicant-respondent No. 4 as well as the learned advocates appearing for the other respondents. I have perused the petition filed by the respondent No.4 for rejection of the petition filed for setting aside award, the affidavit-in-opposition filed by the petitioner against the said application alongwith the substantive application and the documents annexed therewith.

At the out set it should be recorded that whether the petition is barred by limitation or not is a mixed question law and facts. However, there are adequate materials on record as well as the statements made in the pleadings to decide about the factual aspect of this issue, whereas for legal aspect the provisions of section 42(2) and 55(1) of the Act is to be looked into.

Since all the parties have agreed and since it is expressly stipulated in the admission order dated 19.06.2012 of this court that “let the application be admitted, subject to any objection which may be raised by the opposite-parties with regard to limitation at the time of hearing”, therefore, I am of the opinion that the issues of limitation has to be taken first. In other words, the issues as to whether the petition is barred by limitation has been taken as the preliminary issue. Because, if the petition is found barred by limitation then the petition will be liable to be rejected on this ground alone.

It is admitted by the petitioner (respondent before the International Court of Arbitration) that the arbitrations arose from 04 (four) contracts of Road Maintenance Component (RMC). The request for arbitration was initially filed on behalf of five claimants, including AKT-Xerbel JV which withdrew from the arbitration with consent of all the parties. No party objected to commencing one arbitration in respect of all four contracts. The claimants and the present petitioner jointly nominated that Arbitration Tribunal consisting of a sole arbitrator which nomination was then confirmed by the Secretary General of the International Chamber of Commerce Interna-tional Court of Arbitration (ICC Court) on 3^rd October 2008 pursuant to Article 9(2) of the ICC Rules of Arbitration. The Terms of Reference in the arbitration (“TOR”) were finalized and signed in a meeting with the claimants and the respondent on 31 March 2009 and were communicated to the ICC Court on 23 April 2009 pursuant to Article 18(2) of the ICC Rules of Arbitration.

Next, having considered the statements made in paragraph No.10 of the petition, I find that it has also been admitted by the petitioner that the final award was given on 27.11.2011. It has been admitted to by the petitioner, at paragraph No. 4 of the affidavit in opposition, that the petitioner has received the award on 29.1.2011. But, admittedly the petitioner has not filed this petition within 60 days from date of receiving the award, as prescribed by section 42(2) of the Act.

It has been stated in paragraph No.11 of the substantive petition as well as in paragraph No.4 of the affidavit-in-opposition of the petitioner that the respondent-petitioner had filed an application under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011 for interpretation of the award. But the Secretariat of the ICC International Court of the Arbitration, through it’s letter dated 17.4.2012 (Annexure-B), has communicated to the respondent-petitioner that “Respondent’s requests to further extension of time for 8 weeks from 16.4.2012. Respondent requests a further extension of time of 8 weeks from 16 April 2012 within which of pay the additional advance on cost fixed by the court at US$ 5000. We note that since the court fixed the additional advance on costs on 19 January 2012, some four months ago, no payment of US$ 5000 has been received. In light of all the circumstances, Respondent’s Article 29 Application is considered withdrawn.” The learned advocate Mr. A. F. Hasan Arif, appearing for the petitioner, has frankly conceded that this intimation of decision, considering the application under Article 29(2) as withdrawn, does not fit in the definition or meaning of award. (emphasis added)

Apart from what is conceded, I am of the considered view that the decision commu-nicated in letter dated 17.4.2012 (Annexure-B) cannot be treated or termed as an ‘award’ for the reason that in that letter the ICC Secretariat has only informed that the petition filed under Article 29(2) of ICC Rule is ‘considered withdrawn’ for not depositing the cost on 1.9.2011, as fixed by ICC International Court of Arbitration. This decision was not formed by the Arbitrator appointed by the parties, nor the application under Article 29(2) was referred to the Arbitrator appointed by the parties, nor the decision dated 17.4.2012 decides or disposes of any dispute between the parties or otherwise modify, review or adds to the award originally passed. Hence, the award passed on 27.11.2011 retains its originality as has been held in 2011(2) R.A.J 142 (BOM), at paragraph 13, that “there is no justification, as contended, to accept the submission in view of the mandate of section 34 and considering the scheme and purpose of the Arbitration Act that because the application under section 33 of the Act was filed and it was rejected subsequently, therefore, the limitation period commenced afresh from the date of such decision of the award. In my view, it is contemplated only on a situation where the Arbitrator corrects or interprets and/or add or decide to add any additional claims and modified the award as only in such cases the original award losses its originality and therefore an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award. Therefore the party who received the award after deciding the application under section 34(3) of the Act, may get the benefit of fresh commencement of limitation from the receipt of the modified and/or corrected award and not otherwise.” In 7 BLT (HCD) 265, it has been held that the application (under section 33 of the Arbitration Act, 1940) challenging the validity of the Award having been filed after a period of 30 days as enshrined in Article-158 of the Limitation Act, the same could not be entertained and section 5 of the Limitation Act was not at all applicable for condonation of delay”. I respectfully agree with the views expressed in these two cases decided under the Arbitration Act, 1940 and accordingly hold that the limitation period, in facts and circumstances of this case, shall be counted from the date of receiving the award on 29.11.2011 by the petitioner (as admitted in paragraph No. 4 of its affidavit in opposition filed against the application for rejection) and that the petitioner ought to have filed it’s petition under section 42(2) read with section 43 of the Act within 60 days from the date of receiving the award (i.e. within 60 days from 29.11.2011) as prescribed in subsection (2) of section 42 of the Act. Hence, for not filing the petition within 60 days from 29.11.2011 the same is clearly barred by special limitation prescribed under section 42(2) of the Act.

The words occurring in section 55(1) of the Act that “HC BCel ¢hd¡e¡hm£ ü¡fr”, unambiguously and clearly indicates that the Limitation Act, 1908 will apply only subject to the special limitation prescribed in the Arbitration Act 2011 (the Act). Since, section 42(2) of the Act has prescribed special period of limitation, the Act itself being a special law, the petitioner ought to have filed its petition for setting aside the award within 60 days from 29.11.11, i.e. within 28.1.2012. For not filing the petition within 28.1.2012 the same is clearly barred by special limitation prescribed under section 42(2) of the Act.

Besides, the period elapsed between 28.12.2011 [the date of filing application under sub-article (2) of Article 29 of the ICC Rules] and 17.4.2012 [the date of the letter of the secretariat of ICC International Court of Arbitration] intimating that the Article 29 application of the respondent (petitioner in this case) is ‘considered withdrawn’ for not depositing the cost, shall not be excluded in counting the period of limitation. Because, the petitioner cannot be allowed to be benefited from its own default, least it will be a convenient excuse to any unscrupulous person to frustrate the special limitation by resorting to such tactics and because there is no proviso to section 42(2) of the Act making any room for exclusion of time on this or any other ground.

Moreover, the letter dated 17.4.2012 (Annexure-B) and the message it conveyed is neither an award nor modification, addendum or correction of the award. So, the award retains it’s originality and the time, for the purpose of limitation, is to be counted from 29.11.2011 and I also hold that the arbitration proceeding was terminated on 27.11.2011, the date of passing the award.

Besides, as alleged in paragraph No. 13 of the petition, the application dated 28.12.2011 filed under Article 29(2) of the ICC Rules is not a review application. This was an application for ‘interpretation of the award’ dated 27.11.2011, as admitted in paragraph No. 4 of the affidavit in opposition filed by the petitioner. Sub-Article (2) of Article 29 of the ICC Rules reads as follow: “Any application of a party for the correction of an error of the kind referred to in Article 29(1), or for the interpretation of an Award, must be made to the Secretariat within 30 days of the receipt of the Award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the Arbitral Tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. If the Arbitral Tribunal decides to correct or interpret the award, it shall submit its decision in draft from to the court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the court may decide.” As such, the application dated 28.12.2011 was not a review application, since Article 29(2) of the ICC Rules does not make any provision for ‘review’ of the award, nor the same was disposed of in the manner laid down in sub-article (2) of Article 29 of the ICC Rules. Hence, neither the said application dated 28.11.2012 of the petitioner, nor the decision/ letter dated 17.4.2012 (Annexure-B) is of any help to the petitioner to overcome the period of special limitation prescribed under section 42(2) of the Act, while on the admitted position of the petitioner the petition is filed after 86 (eighty six) days, as recorded herein before, though the facts on record shows that the petition was filed after 200 days. (emphasis added)

Next, having considered the judgment dated 31.07.2013 passed in two unreported cases, viz Arbitration Application No.9 of 2013 and Arbitration Application No.10 of 2013, in which two applications filed for setting aside of the award under Section 42(2) of the Act was rejected by this court as barred by limitation and it has been held in those 2(two) cases, disposed of by the single judgment, that the time limit of 60 days shall be counted from the date the applications have been posted in the daily cause list for admission hearing and not for the date of swearing affidavit. I see no reason to depart from the views taken in the judgment dated 31.7.2013 passed in Arbitration Application No.9 of 2013. Even though, the date of swearing affidavit is taken into consideration this petition is also hopelessly barred by limitation.

I also find substance in the submission of the learned Advocate for the applicant-respondent No.4 that there is no cause of action for filling this petition under section 42 sub-section (2) read with section 43 of the Act. Because, admittedly the petitioner has filed an application Article 29(2) of the ICC Rules seeking the interpretation of the award, not seeking to set-aside the award if the petitioner had any cause of action for filling an application to set aside award then they would have file this petition immediately after receiving the award on 29.11.2011, at least within 60 days there from, but they did not. Therefore, it can be safely concluded the petitioner had no cause of action to file this petition for setting aside the award. Moreover, the respondent-petitioner (Roads & High Ways) having not deposited the additional cost fixed by the ICC court of Arbitration, for hearing of the application filed under Article 29(2) of the ICC Rules of Arbitration seeking interpretation of the award dated 27.11.2011, the submission of the learned advocate for the petitioner that the said application was filed bonafide can hardly make any favourable impression. I must refer to the decision reported in 44 DLR(AD) page 260: Rupali Bank Limited and other Vs. Tafazal Hossain and others, also referred to in the judgment dated 31.7.2013 passed while disposing of Arbitration Application No.9 of 2013 and Arbitration Application No.10 of 2013. In that case it has been held by the Appellate Division that “Jurisdiction of a Court goes to the very root of a matter brought before it and if the Court got no jurisdiction everything shall fall through. The Court who got no jurisdiction over a matter shall not get into the merit of the matter.” Accordingly I am of the view that although this court has jurisdiction to decide whether it has jurisdiction, however, once it has arrived at conclusion that the substantive petition is barred by limitation then it does not have jurisdiction to get into the merit of this matter.

In view of the deliberation recorded above, I am of the view that the application for rejection of the substantive petition has merit and the substantive petition is barred by limitation.

In the result the petition is allowed and the substantive petition is dismissed.

The order of stay passed at the time of admission of this application is hereby vacated and the award is restored. The petitioner shall take immediate steps towards marking payment as per the award, passed long back on 27.11.2011.

The parties will bear their respective cost.

Ed.

Reference: 4 LNJ (2015) 110.

Riaz Uddin Ahmed Vs. Khondakar Khorshed Ali

Case No: Civil Review Petition No. 136 of 2009.

Judge: Surendra Kumar Sinha,

Court: Appellate Division ,,

Advocate: A J Mohammad Ali,,

Citation: VII ADC (2010) 392

Case Year: 2010

Appellant: Riaz Uddin Ahmed

Respondent: Khondakar Khorshed Ali

Subject: Property Law,

Delivery Date: 2010-01-31

Riaz Uddin Ahmed Vs. Khondakar Khorshed Ali
VII ADC (2010) 392

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Abdul Matin J
Md. Muzammel Hossain J
Surendra Kumar Sinha J

Riaz Uddin Ahmed…………………...Petitioner
Vs
Khondakar Khorshed Ali alias Khandaker Khorshed Ali being dead his heirs 1(a) Khandaker Mosiur Rahman (Khalil) and others……….......Respondents

Judgment
January 31, 2010.

Code of Civil Procedure, 1908
Order 5 Rule 20

Service of the summons was not made in accordance with law, that the heirs of Azim Munshi including Majom Ali were residents of Asam, India, and therefore their address shown in the plaint in Bangladesh, on which the summons were alleged to have been served by hanging, were found to be not true and that there was no service of summons as per Order 5 Rule 20 of the Code of Civil Procedure. … (4)

Since the suit as framed involved serious question of title, the plaintiff was required to seek consequential relief. The suit is not maintainable and as such, the decree passed is illegal and void ab initio and that though the point of limitation was not agitated yet it is an obligation on the part of the Court to decide the point of limitation and as the suit was filed on 29th September, 1986 for setting aside the judgment and decree passed on 20th December, 1977, the suit was hopelessly barred by limitation. The learned Subordinate Judge also observed that though the process server through whom the service of summons was made, being dead, his signature was proved by his colleague process server, who deposed as P.W.4, and therefore, the service of summons was in accordance with law. …. (6)

Lawyers Involved:
A. J. Mohammad Ali, Senior Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Review Petition No. 136 of 2009.
(From the judgment and order dated 30.07.2009 passed by Appellate Division in Civil Petition for Leave to Appeal No. 1733 of 2008.)

Judgment

Surendra Kumar Sinha J. - The review petition under Article 105 of the Constitution is directed against the judgment and order of this Court dated 30th July, 2009 in Civil Petition for Leave to Appeal No. 1733 of 2008.

2. The petitioner filed Other Class Suit No. 72 of 1986 in the Court of Assistant Judge, Basail, Tangail, for declaration that the ex parte judgment and decree dated 26th November, 1977 obtained in Other Class Suit No. 142 of 1977 by practicing fraud upon the Court by showing false report as to service of summons and on the basis of a forged karfa created in the name of a dead person. The plaintiff claimed the suit land by inheritance and possession thereon.

3. The defendant No.1 contested the suit by filing written statement denying the claim made in the plaint and claiming the suit land by purchase and that he filed the Other Class Suit No. 142 of 1977 for correcting the record of right, since in the record the name of one Azim Munshi was shown as owner-possessor of 3.82 acres of land mistakenly, asserting, amongst others, that the plaintiff has no right, title and interest in the suit property.

4. The plaintiff adduced three witnesses and the defendant adduced four witnesses in support of their respective cases. The plaintiff produced documents, proved and marked as exhibits 1-4 and the defendant produced documents, proved and marked as exhibits 'K' to 'b'. The learned Assistant Judge set aside the ex parte decree observing that the suit property originally belonged to C.S. recorded owner Azim Munshi, that the service of the summons was not made in accordance with law, that the heirs of Azim Munshi including Majom Ali were residents of Asam, India, and therefore their address shown in the plaint in Bangladesh, on which the summons were alleged to have been served by hanging, were found to be not true and that there was no service of summons as per Order 5 Rule 20 of the Code of Civil Procedure.

5. Being aggrieved by the aforesaid judgment and order the defendant No.1 preferred Other Class Appeal No. 22 of 2001 in the Court of District Judge, Tangail, which on transfer was heard and disposed of by the learned Joint District Judge, 4th Court, Tangail.

6. The learned Subordinate Judge allowed the appeal holding that since the suit as framed involved serious question of title, the plaintiff was required to seek consequential relief. The suit is not maintainable and as such, the decree passed is illegal and void ab initio and that though the point of limitation was not agitated yet it is an obligation on the part of the Court to decide the point of limitation and as the suit was filed on 29th September, 1986 for setting aside the judgment and decree passed on 20th December, 1977, the suit was hopelessly barred by limitation. The learned Subordinate Judge also observed that though the process server through whom the service of summons was made, being dead, his signature was proved by his colleague process server, who deposed as P.W.4, and therefore, the service of summons was in accordance with law.

7. Being aggrieved, the plaintiff-petitioner moved the High Court Division in Civil Revision No.152 of 2005 and the High Court Division discharged the Rule. In this backdrop, petitioner moved this court in Civil Petition for Leave to Appeal No.1733 of 2008 and this court on consideration of the material on record dismissed the leave petition by the impugned judgment and order dated 30th July, 2009.

8. Mr. A. J. Mohammad Ali, the learned Counsel for the petitioner submits that it is the admitted position of the petitioner that he lives in Asham, and thus the date of knowledge of the petitioner is corroborated by documentary evidence, such as, the petitioner's passport showing the date of his arrival in Bangladesh, and the certified copy of the ex parte decree obtained by him prior to filing the Other Class Suit No.72 of 1986. Furthermore, from the time of petitioner's arrival to Bangladesh and the date of filing the suit it is very much within the limitation period and therefore, there is error of law apparent on the face of the record which is required to be reviewed for the ends of justice. He further submits that this court failed to appreciate the facts and circumstances of the case that if the ex parte decree is set aside, the respondent No.1's heirs will not be left without any remedy rather, they would be able to contest the suit on merit, on the contrary, the petitioner is left without any remedy and as such, an opportunity should be given to the petitioner for the sake of complete justice to safeguard his constitutional right to property.

9. We have heard the learned Counsel and perused the record. These points were raised and decided by this court. There is no new ground for consideration.
In the premises, we do not find any substance in the Review Petition.
Accordingly, the Review Petition is dismissed.
End.

Robert Pinaru Vs. Moulana Habibur Rahman and others, 2006

Case No: Civil Appeal No. 15 of 2001.

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. A.S.M. Khalequzzaman,S. S. Haider ,,

Citation: I ADC (2004) 421

Case Year: 2004

Appellant: Robert Pinaru

Respondent: Moulana Habibur Rahman and others, 2006

Subject: Property Law,

Delivery Date: 2003-04-07

Robert Pinaru Vs. Moulana Habibur Rahman and others, 2006
I ADC (2004) 421

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
K. M. Hassan J

Robert Pinaru....................Appellant
Vs.
Moulana Habibur Rahman and others…….....Respondents

Judgment
April 7, 2003.

Evidence Act, 1872
Section 13, 41, 43
Code of Criminal Procedure, 1898
Section 144

The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered. …. (12)

Certainly admissible in evidence to show that there was a litigation between the plaintiff and the defendant No. 1 who were parties in the previous suit and in that suit the specific contention of the parties as to whether plaintiff of the previous suit (defendant No. 1herein) has right, title and interest in the land in suit and the Court had found in that suit that said plaintiff had no right, title and interest in the land in suit which is the subject matter of the instant suit. …. (14)

Cases Referred to-
41 DLR (AD) 1997; Malik Din and another Vs. Mohammad Aslam, 21 DLR, 95; Alauddin Mia and another Vs. Abdul Latif and others, 9 DLR, 357.

Civil Appeal No. 15 of 2001

Lawyers Involved:
S. S. Haider, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-On-Record- For the Appellant.
A. S.M. Khalequzzaman, Advocate-on-Record- For Respondent Nos. 1-6.
Not represented- Respondent Nos. 7- 9.

Judgment

Md. Ruhul Amin J. - This is plaintiffs appeal, by leave, against the judgment and order dated August 24, 1999 of a Single Bench of the High Court Division in Civil Revision No. 1358 of 1995 making the Rule absolute upon setting aside the judgment and decree dated February 26, 1995 of the 2nd Court of Additional District Judge. Chuadanga, in Title Appeal No. 22 of 1994 affirming those of dated February 24, 1994 of the Court of Senior Assistant Judge, Damurhuda, Chuadanga, in Title Suit No. 30 of 1985 decreeing the suit which was filed seeking declaration of title, confirmation of possession, recovery of khas possession of some portion of land in suit and for a further declaration that the kabala in the name of defendant No. 8 is void and not binding upon the plaintiff and that the S. A. record in the name of defendant No.9 and R. S. record in the name of defendant No. 8 are incorrect.

2. Plaintiff averred that land in suit belonged to C.S. recorded tenant Monohar Ghosh and on the death of Monahar Ghosh his interest devolved upon his daughter Charubala who settled 41 decimals of land (including the land in suit) to one Taiyab Ali on 10th Baisakh, 1357 B. S. and in his name S. A. record was prepared and he possessed the land on payment of rent to the Government. Plaintiff by the kabala dated August 6, 1963 purchased from Taiyab Ali 41 decimals of land and out of that 14 decimals were acquired by C & B Department and thereupon he remained owner and possessor of 27 decimals of land. It was further averred that during the war of liberation he left Bangladesh and in his absence structures including dwelling house in the land in suit were destroyed and after emergence of Bangladesh he returned and he started to possess the land and while he was so possessing the defendant No.1 threatened him to dispossess and thereupon he filed Criminal Miscellaneous Case No. 89 of 1975 under Section 144 of the Code of Criminal Procedure on June 11, 1975; and the said proceeding was made absolute. Thereupon the defendant No.1 filed Title Suit No. 626 of 1975 in the Court of Munsif, by Bahar Ali upon obtaining settlement in Chuadanga, seeking declaration of Titles and for a further declaration that the S.A khatian as regard the land of the said suit (which is the subject matter of the Title Suit No. 30 of 1985 is erroneous. The said suit having been dismissed on June 30, 1979. The defendant No.1 filed appeal No. 92 of 1979 and the same was dismissed on April 7, 1981. It was also averred that during the pendency of the Title Suit No. 626 of 1975 the defendant No.1 on May 1, 1979 dispossessed the plaintiff from the part of the land of the instant suit and erected one hut and that during the pendency of Appeal No. 92 of 1979 the defendant No. 1, converted the hut erected earlier in to a 'chouchala' hut and also erected some other huts. It is the case of the plaintiff since he has been dispossessed from the portion of the land in suit on May 1, 1979; same has necessitated him to file the suit.

3. The suit was contested by the defendant No.1-6 and 8 by filing separate set of written statements.

4. It was the case of the defendant No 1-6 that defendant No.9 (Nurul Tslam) took statement of 21 decimals of land of plot No. 1049 from Charubala on 15th Chaitra, 1359 B.S. and therefrom 12 decimals of land was acquired by C & B Department and thereupon S.A. record in respect of 9 decimals of land was prepared in his name. Defendant No.9 sold said land on October 20, 1979 to Chahiruddin (defendant and in his R. S. record has been prepared and he allowed the defendant No. 1 to stay therein as licencee. It was also the case of the defendant No.1 that C & B Department acquired 16 decimals of land out of 41 decimals of land of plot No. 1050 and the remaining 25 decimals of land was acquired by Bahar Ali upon obtaining settlement in Ashwin, 1360 B. S. from Charubala and Bahar Ali died leaving 3 sons - Rahim Ali, Taiyab Ali and Ayub Ali and the defendant No.1 purchased 27¹/₂decimals of land from Ayub Ali and Rahim Ali sons of Bahar Ali by the kabala dated January 22, 1975 and since purchase he is possessing the land by constructing huts and is living therein with the members of the family. It was further contended by the defendant Nos. 1-6 that plaintiff has got no right, title and interest in the land in suit and he is not in possession of the land of suit plots, and they have not constructed   any hut in the land of the plaintiff. It was also the case of the defendant Nos. 1-6   that they are exercising act of possession in 16 decimals of land of S.A. Plot No. 1142 which later on recorded in R. S. Plot Nos. 2323 and 2324 and the plaintiff on the basis of his purchase from Taiyab Ali is possessing 9 decimals and the defendants have got their names mutated and upon obtaining receipt paying rent to the Government.

5. The case of the defendant No. 8 was almost similar to the case of defendant Nos. 1-6.

6. The trial Court decreed the suit on the finding that the   suit of the plaintiff as framed is maintainable and not bad for defect of parties and also not barred by limitation and that plaintiff has right, title and interest in the land in suit and defendant Nos. 1-6 in 1979 dispossessed the plaintiff from part of the land in suit and the S. A. record in the name of defendant No.9 is erroneous and the purchase by the defendant No.9 from defendant No. 8 is not binding upon the plaintiff and the R. S. record in the defendant No. 8 is incorrect.

7. Defendant Nos. 1-6 filed appeal. The appellate Court affirmed the judgment and decree of the trial Court on the findings that the defendant's contention relating to quantity of land of plot No. 1050 measuring 41 decimals of land is not correct, rather the defendants have introduced the said case to mislead the Court. The appellate Court disbelieved the defendants' contention of taking settlement from Charubala by Nurul Islam being fictitious since period in which Nurul Islam said to have taken settlement he was a mere child and he had no source of income and moreover the fact of taking settlement was not proved by calling competent witness. The appellate Court also concurred with the finding of the trial Court that transfer by Nurul Islam to Chahiruddin was a mere paper transaction and that plaintiff was dispossessed by the defendant Nos. 1-6 in the year, 1979 and as plaintiff has right, title and interest in the land in suit he is entitled to have a decree for recovery of khas possession upon evicting the defendant Nos. 1-6.

8. The defendant Nos. 1-6 moved the High Court Division in revisional jurisdiction against the judgment and decree of the appellate Court. The High Court Division made the Rule absolute on the finding that the appellate Court as well as trial Court were in error in decreeing the suit on the basis of Exts. 4 and 6 (judgment and decree in Title Suit No. 626 of 1975 and in Title Appeal No. 92 of 1979 respectively) considering them as the good piece of evidence in support of the claim of title of the plaintiff and that appellate Court having had expressed view doubting genuineness of the documents on the basis of which plaintiff claiming title was in error in decreeing the suit basing its judgment thereon. The High Court Division was also of the view that the judgment in the Title Suit No. 626 of 1975 and in the Title Appeal No. 92 of 1979 were not being the judgment kind as contemplated by the provision of section 41 of the Evidence Act and that not being the judgment as regards the matter as contemplates by the provision of 42 of the Evidence Act and consequently as the judgments of the suit and the appeal cannot “Considered as a conclusive proof of the fact they stated and as such they were also not Acceptable as relevant evidence under Section 42 of the Evidence Act" and consequently findings and decisions made by the trial Court as well as by the appellate Court placing reliance of the said judgments as regard the title and possession of the plaintiff in the land in suit are not sustainable in taw. The High Court Division also held that the finding made by the trial Court as well as by the appellate Court in respect of the deed of defendant No. 8 placing reliance on the judgment of the Title Suit No. 626 of 1975 and Appeal No. 92 of 1979 was bad in law. The High Court Division further was of the view that the land as to which decree for khas possession sought for unspecified and indefinite.

9. Leave was granted to consider the contentions that the High Court Division was in error in holding that the judgment on the basis of Exts. 4 and 6 is incorrect in that decision as regard the case of the respective parties in the suit was made by the trial Court as well as by the appellate Court upon discussions of the evidence, both oral and documentary, brought on record and that not solely on the basis of Exts. 4 and 6, that inspite of remark made by the appellate Court, the said Court considered the evidence, both oral and documentary, and on the basis pf the evidence so discussed arrived at the finding as regard the title and possession of the plaintiff, but the High Court Division did not consider the materials that weighed with the appellate Court and that the High Court Division was in error about the admissibility of Exts. 4 and 6, the previous judgments relating to the land in suit and misconstrued the provision of Section 41 of the Evidence Act and wrongly placed reliance in the decision reported in 41 DLR (AD) 1997 though the said decision relates to admissibility of the previous judgment.

10. The learned Counsel for the appellant submitted that High Court Division was in error in reversing the judgments of the Courts below upon taking the view that plaintiffs case was disposed of on the basis of the judgments in the previous suit and the appeal therefrom although both the Courts below on consideration of the evidence brought on record by the plaintiff, both oral and documentary, other than the judgments of the previous suit, i.e. Title Suit No. 626 of 1975 and the appeal therefrom, arrived at the finding that alleged settlement of defendant No.9, Nurul Islam from Charubala was fictitious one and that purchase from defendant No.9 by defendant No. 8 was a mere paper transaction and that purchase by the defendant No.l from the heirs of Bahar Ali who said to have taken settlement in 1360 B. S. from Charubala was also found fictitious and that plaintiffs purchase being of the year, 1963 the defendant No.1 by purchase in 1975 from Bahar All's heirs did not acquire any interest in the land in suit. The learned Counsel further submitted that judgment of the previous suit i.e. 626 of 1975 and the judgment in the appeal therefrom were considered as the fact relevant being the judgment inter parties i.e. plaintiff and the defendant No.1 and also in connection with consideration of the question of possession of the plaintiff and the defendant No.1 in the land in suit. The learned Counsel also submitted that the judgment in the previous Title Suit No. 626 of 1975 and the judgment in the appeal therefrom (Exts. 4 and 6) were referred to by the trial Court as well as the appellate Court in the context of the claim of the parties in the suit i.e. plaintiff and the defendant No. 1, to the land in suit relating to title and possession. The learned Counsel continued that High Court Division was in error in holding that the land as regards which recovery of possession was sought for unspecified and indefinite in that in the schedule to the plaint that land as regard to which recovery of possession has been prayed for specifically described.

11. The learned Counsel submitted that High Court Division was in error in observing that the judgments in the earlier suit i.e. in Title Suit No. 626 of 1975 and the appeal therefrom "were not relevant" in the instant suit, nor the same could be considered as "the conclusive proof of fact stated therein" upon placing reliance on the provision of Sections 41 and 42 of Evidence Act as under Section 43 of the Evidence Act in the background of the contentions of the parties in the instant suit the judgment of the earlier suit was a fact in issue as well as was a relevant fact. The learned Counsel lastly submitted that the High Court Division was in error in holding that though the appellate Court entertained doubt as to the genuineness of the papers on the basis whereof plaintiff claiming the right, title and interest and the suit but still then affirmed the decree of the trial Court upon over looking the material part of the judgment of the appellate Court wherein the said Court discussed the case of the parties in the background of the materials placed on record and arrived at the finding that the claim of the plaintiff in the land in suit is acceptable in the absence of any claim-from the Government in the land in suit, than that of the defendant. The finding so arrived at is based on evidence both oral and documentary and the High Court Division totally ignored the evidence on which the appellate Court based its judgment while making observation that appellate Court inspite of entertaining doubt as to papers of the plaintiff affirmed the judgment of the trial Court.

12. The learned Advocate-on-record appearing for the respondent Nos. 1-6 submitted that since settlement claimed by Taeyab Ali was not proved and thus plaintiff by purchase from Taeyab Ali as did not acquire any right, title and interest in the land in suit the decree passed by the trial Court and affirmed by the appellate Court was rightly set aside by the High Court Division. He also submitted that land as regards which recovery of possession has been sought for as not specific the decree passed in the suit not sustainable in law. He lastly submitted that the judgment in the previous suit relied upon by the trial Court as well as by the appellate Court in decreeing the suit being not relevant, the High Court Division was quite right in setting aside the decree passed in favour of the plaintiff.

13. The contention of the contesting respondents that the land as to which recovery of possession has been sought for unspecified and the finding of the High Court Division in that regard appears to be upon perusal of the schedule to the plaint and the description of the land, recovery whereof has been prayed for, given therein not correct. On perusal of the schedule we are of the view the land as regards which decree for recovery of possession has been passed in identifiable and specifiable. The other contention of the respondent that settlement taken by Taiyab Ali from Charubala as was not established, the plaintiff by purchase from Taiyab Ali in the year 1963 did not acquire any right, title and interest in the land in suit and consequently as the courts below were in error in decreeing the suit the High Court Division committed no error in setting aside the said decree is also of no merit as the trial Court as well as the appellate Court on consideration of the evidence, both oral and documentary, have arrived at the concurrent finding that Taiyab Ali, vendor of the plaintiff, took settlement of the land in suit from the admitted owner Charubala. It may be mentioned High Court Division while setting aside the decree in the suit failed to advert itself to the materials upon placing reliance whereon the Court of first instance and the appellate Court arrived at the finding that Taiyab Ali, vendor of the plaintiff, took settlement in 1357 B. S. of the land in suit and in his name S. A. record was prepared and the plaintiff purchased the land in the year 1963. The High Court Division also failed to notice the fact that while settlement to Nurul Islam by Charubala in the year 1359 B. S. was not established as genuine then the claim of the defendant No.1 in respect of the land in suit by purchase from the person who said to have been taken settlement in 1359 B. S. did not vest any title in him. The fact of dispossession of the plaintiff from the land in suit has been noted in the R. S. khatian prepared in the name of the plaintiff in respect of the land in suit and that has also been established by oral evidence and while in the instant suit the question of dispossession of the plaintiff by the defendant No.1 came up for consideration the trial Court as well as the appellate Court in disposing of the issue of dispossession referred to the judgments, Exts. 4 and 6, wherein it was held that defendant No.1 dispossessed the plaintiff in 1979.

14. There remains the question of taking into consideration judgment in the previous suit i.e. judgment in Title Suit No. 626 of 1975 and the appeal therefrom (Exts. 4 and 6). In the light of the provision of Section 43 and 13 of the Evidence Act Exts. 4 and 6 are relevant in the instant suit since the question of dispossession is a material question for consideration for maintainability of the suit or in otherwords as regards presence of cause of action and also in the context of nothing in the R. S. record to the effect that the defendant No. 1 is in forceful possession of portion of the land in suit as well as finding in the previous suit that defendant No.1 dispossessed the plaintiff from the land in suit in 1979 during the pendency of Title Suit No. 626 of 1975. The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence, date and legal effect, as distinguished from the accuracy of the decision rendered. The former judgments and decrees were not themselves a transaction or an instance within the meaning of section 13 of the Evidence Act, but the suit in which they were made was a transaction or an instance in which the defendant's right of possession was claimed and recognized and that to establish that such transaction or instance took place the previous judgment (s) was the best evidence. (41 DLR (AD) 1997). The question as to admissibility and relevancy of the previous judgment in a subsequent suit in the changed position of the parties as regards the matter, which is common in the previous suit as well as in the latter suit, came up for consideration in the case of Malik Din and another Vs. Mohammad Aslam reported in 21 DLR, 95 and therein it has been observed "Judgments, whether inter parties or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the sustentative as opposed to the judicial portions of the record. But where the judgment is inter parties; even recitals in such a judgment are admissible. a previous judgment is admissible also to prove statement or admission or an acknowledgment made by a party or the predecessor in interest of a party, in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to litigation is admissible to establish the allegations made by them on that occasion". As to admissibility of the previous judgment, under section 43 of the Evidence Act it has been observed in the case of Alauddin Mia and another Vs. Abdul Latif and others reported in 9 DLR, 357 as follows:
"Under this section, judgments are admissible in evidence only if the existence of such judgment is a fact in issue or if it is relevant under some other provision of the Evidence Act . . . .that judgments, not inter parties, were admissible in evidence for and against every one under section 13 of the Evidence Act. They are thus admissible either as evidencing 'transaction’ by which a right or a custom in question is created, claimed or modified, recognized, asserted or denied or as 'particular instances' in which the right or custom in question was claimed or modified, recognized, asserted or denied .....judgments, not inter parties, are admissible in evidence under which according to the High Court Division was section 13 of the Evidence Act".

15. It may be mentioned in the previous suit i.e. Title Suit No. 326 of 1975 defendant No.1 was the plaintiff and the plaintiff of the instant suit was defendant No. 6 and the vendor of the plaintiff was defendant No.1 and in that situation the judgment in the previous suit even if may not strictly be consideration as the judgment inter parties but the same has been certainly admissible in evidence to show that there was a litigation between the plaintiff and the defendant No.1 who were parties in the previous suit and in that suit the specific contention of the parties as to whether plaintiff of that previous suit (defendant No.1 herein) has right, title and interest in the land in suit and the Court had found in that suit that said plaintiff had no right, title and interest in the land in suit which is the subject matter of the instant suit. In the background of the facts of the instant case the trial Court as well as the appellate Court while considering the question of right, title and interest and claim of possession of the plaintiff, which was denied by the defendant Nos. 1-6, the said Courts in deciding the question of right, title, interest and possession of the plaintiff were not in error in considering the judgment in the previous suit along with the other evidence, both oral and documentary and decreeing the suit and that being the position the High Court Division without considering the evidence other than Exts. 4 and 6 (previous judgment) placing reliance whereupon judgment by trial Court was made and the appellate Court affirmed was in error in reversing the judgment of the appellate Court affirming the judgment and decree of the trial Court on the view that the said Courts decreed the suit solely. On the basis of previous judgments not relevant.

16. In view of the discussions made hereinabove the appeal is allowed. The judgment and order of the High Court Division is set aside and the judgment and decree of the appellate Court affirming the judgment and decree of the trial Court is restored.
There is no order as to costs.
Ed.

Robin Chowdhury @ Misba Uddin Vs. Anti-Corruption Commission and others 2017 (1) LNJ 152

Case No: Writ Petition No. 13488 of 2015

Judge: M. Enayetur Rahim. J.

Court: High Court Division,

Advocate: Mr. A. J. Mohammad Ali, Md. Khurshid Alam Khan,

Citation: 2017 (1) LNJ 152

Case Year: 2016

Appellant: Robin Chowdhury @ Misba Uddin

Respondent: Anti-Corruption Commission and others

Subject: Writ Jurisdiction

Delivery Date: 2017-03-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

M. Enayetur Rahim, J

And

Amir Hossain, J

Judgment on

21.07.2016

}

Robin Chowdhury @ Misba Uddin

... Petitioner

-Versus-

Anti-Corruption Commission and others

... Respondents

Constitution of Bangladesh, 1972

Article 35(2)

The accused was prosecuted, tried and convicted in UK under its own law and it was done under the distinct source of power and consequently there can be successive prosecution in Bangladesh for the same course of conduct which does not violate the prohibition on the doctrine of double jeopardy as guaranteed in Article 35(2) of our Constitution. For the words ‘same offence’ indisputably refers to act and omission punishable under laws enacted by our sovereign parliament and it does not refer to that punishable under law of any other foreign country. The principle reflected in Article 35(2) of our constitution is further confirmed in section 26 of the General Clauses Act of 1897 and in section 403 of the Code of Criminal Procedure of 1898. Bangladesh a sovereign entity shall determine what act or omission committed within its territory constitutes an offense in exercise of power under its own law, not that of the other. Therefore, no violation of the prohibition on double jeopardy results from successive prosecutions under the relevant penal law of Bangladesh, because by one act the accused has committed two offences—one is beyond the territory of Bangladesh which was punishable under law of UK a distinct sovereign entity and now is being prosecuted for the same act constituting offence punishable under law of our own. It is to be noted that the territoriality principle is the most common basis of jurisdiction and is widely regarded as a manifestation of state sovereignty. At its simplest, the territoriality principle denotes that a sovereign state has jurisdiction over conduct or act or omission that occurs within its territorial borders. The ‘separate sovereigns’ doctrine allows for two states to prosecute for the same offence occurred within jurisdiction of both locations. Thus, literary ICCPR does not prohibit successive prosecution of the offence committed by same course of conduct under a distinct law of a sovereign country. Prosecuting and convicting of a Bangladeshi national for an offence committed beyond territory of Bangladesh creates no bar for his or her successive prosecution for ‘same act’ in exercise of power given under our own law. The doctrine reflected in Article 35(2) of our constitution does not extend to any offender prosecuted and convicted in a country of distinct sovereignty, under its own statute. . . . (25 to 28)

Money Laundering Protirodh Ain (V of 2012)

Section 2(d)(A)(Av)

The money which was brought to Bangladesh by the writ petitioner was eventually possessed, transferred and converted knowing that such property is proceeds of crime. Thus, new and distinct offence of money laundering has committed in Bangladesh by the petitioner and accordingly the present case has been initiated. . . .(31)

Constitution of Bangladesh, 1972

Article 35(2)

The accused allegedly by a single act violated laws of two sovereign states and thereby committed two distinct offences and thus the instant prosecution relating to an offence punishable under our own law even for the same act does not breach the doctrine of ‘double jeopardy’. . . . (32)

Hussain Mohammad Ershad Vs. Bangladesh and others, 21 BLD (AD) page-69; Saiful Islam Dilder Vs. Government of Bangladesh, 50 DLR, page-318; Bangladesh Vs. Unamarayen S.A. Panama, 29 DLR, page-253; Bangladesh and others Vs. Sombon Asavhan, 32 DLR (AD), page-194; Abdul Quader Molla Vs. Government of Bangladesh, Criminal Appeal No.24 of 2013 heard along with Criminal Appeal No.25 of 2013, page-13 ref.

Mr. A.J. Mohammad Ali, Advocate with

Mr. Abdullah M. Rafiqul Islam, Advocate and

Mr. Raghib Rouf Chowdhury, Advocate

...For the Petitioner

Mr. Mahbubey Alam, Attorney General

(Appeared as per desire of the Court)

Mr. Md. Khurshid Alam Khan, Advocate

...For the Respondent No.1

[Anti-Corruption Commission]

JUDGMENT

M. Enayetur Rahim, J: On an application under Article 102 of the Constitution of People’s Republic of Bangladesh this Rule was issued calling upon the respondents to show cause as to why the initiation and investigation of Kotwali Model Thana, Sylhet, being Case No.23 dated 20.05.2015 under section 4(2) and (3) of the Money Laundering Protirodh Act,2012 should not be declared to have been initiated and continued without lawful authority and is of no legal effect and/ or pass such other or further order or orders as to this Court may seem fit and proper.

2. The facts leading to filing of the writ petition may be noticed in brief.

3. On 20^th May 2015, the Respondent No.2, a Deputy Director (Special Enquiry and Investigation-1) of Anti-Corruption Commission, lodged a First Information Report (FIR), with Kotwali Model Police Station, Sylhet, being Case No.23, implicating the writ Petitioner and others for committing offence under sections 4(2) and (3) of the Money Laundering Protirodh Ain 2012 (herein after referred as Ain of 2012). In the FIR it is alleged that on 06.06.2012, Home Office of the UK sent a Letter of Request For Legal Assistance in the matter of Robin Choudhury @ Misba Uddin to the Ministry of Home, Government of Bangladesh stating that the writ Petitioner was working as an Office Manager in the FLP Solicitors (a law firm), London, from September 2007 to February 2008. During this period the writ Petitioner made 13 fraudulent applications for mortgage, through which he obtained more than 05(five) million pounds and eventually, he remitted taka 16(sixteen) Crore to Bangladesh through different bank accounts. Apart from this he transferred £20,56,527.00 and Taka 13.31 from a joint account with his wife from Landon to Bangladesh. He deposited the said money opening 50 accounts in 10 different Banks in Sylhet in the name of his father, wife, uncle and brother in law. He also invested some portion of money in share market and purchased land, flats, furnishers details of which has been mentioned in the FIR. Thus, the writ petitioner has committed an offence under Section 4(2) and (3) of the Money Laundering Protirodh Ain, 2012. It is also alleged that writ petitioner having changed his name in London as Robin Chowdhury obtained driving license and UK passport.

4. The writ petitioner was arrested in August 2011, by the London Police on the allegation of Fraud and Money Laundering. He was charged under section 1 of the Fraud Act 2006 for fraudulent mortgages and also Money Laundering under Section 372(1) and 334 of the Proceeds of Crime Act, 2002.

5. On 11.04.2013, the writ petitioner was convicted and sentenced to suffer eight years imprisonment and under section 18 confiscation order was passed against the Petitioner under the Proceeds of Crime Act 2002, whereby the Southwark Crown Court in the UK asked for financial information from the Petitioner, i.e. details of his income, property, motor vehicles, bank accounts etc. On appeal the writ petitioner’s sentence was reduced to six years and four months, which he is serving. However, at present the writ petitioner is released on license. Section 18 order is essentially start of a confiscation proceeding, which is part of the Petitioner’s conviction. After receiving the section 18 Order, the petitioner provided all his financial information accordingly to the Crown Prosecution Service (CPS) and the concerned Court. The Proceeds of Crime Act 2002, is essentially akin to the Money Laundering Protirodh Ain of Bangladesh, as it creates the offence of money laundering and also laid down provisions of recovering/confiscation of proceeds of a crime, making it very much parallel to the Money Laundering Protirodh Ain of Bangladesh.

6. The Respondent No.1 Anti-Corruption Commission of Bangladesh started inquiry into the matter vide c¤cL/¢hxAe¤xJ ac¿¹-1/j¡¢emä¡¢lw/61-2013/31836 and then, they also opened another enquiry through their Integrated District Office in Sylhet, vide Memo No. DUDOK/Special Enquiry and Investigation-1/Money Launders Prevention/80-2014/35611 dated 04.12.2014.

7. The Respondent No.1 obtained an order on 02.01.2014 from the Respondent No.4, Senior Metropolitan Special Judge, Dhaka in Permission Petition No.01 of 2014 freezing the Bank accounts of the petitioner and his wife.

8. After completing the enquiry the Anti Corruption Commission has initiated the present case lodging the FIR against the writ petitioner and 04(four) others.

9. Respondent No.1, Anti-Corruption Commission, contested the Rule by filing affidavit in opposition. It is contended by the Respondent No.1 that the writ petitioner has challenged the criminal proceeding and investigation invoking the writ jurisdiction under Article 102 of the constitution which does not fall within the perview of Article 102 of the Constitution; moreover, the petitioner being a fugitive from justice have no locus standi to file any application/petition before any court of law including this Court. The investigating officer having obtained permission from commission by the Memo No. c¤cL/¢hx Ae¤x J ac¿¹-1/j¡¢emä¡¢lw/61-2013/31836 properly investigating the case in accordance with law and also the Integrated District Office in Sylhet vide Memo No. DUDOK/Special Enquiry and Investigation-1/Money Launders Prevention/80-2014/35611 dated 04.12.2014 enquired into the case and found prima facie case under section 4(2) and (3) of the Ain of 2012 against the writ petitioner along with 04(four) others and thereafter, the commission lodged the FIR. And as such, question of harassment does not arise at all and as such the Rule is liable to be discharged with cost.

10. Mr. A.J. Mohammad Ali, the learned Advocate appearing for the writ petitioner submits that offence of money laundering is a transnational crime and the petitioner had already faced prosecution under the proceeds of Crime Act 2002 in UK for committing offence of money laundering and for the same offence the writ petitioner cannot be prosecuted again in Bangladesh under the Ain of 2012, as the essence of the alleged offence under the Act of 2012 and the allegations made in the FIR are same or substantially similar to the offence with which the writ petitioner has already been prosecuted in the UK and awaiting for the outcome of the sentence and as such the action of the Respondents goes against the very principle of law and of natural justice.

11. Mr. Ali then submits that the principle of ‘double jeopardy’ is enshrined in Bangladesh’s legal system as a fundamental right in Article 35(2) of the Constitution of the People’s Republic of Bangladesh, which provides that, no person shall be prosecuted and punished for the same offence more than once; thus, the actions of the Respondents have violated the fundamental rights as guaranteed under the Constitution and are illegal, malafide and violates the principle of natural justice.

12. Mr. Ali further submits that ingredients of the alleged offence under section 4(2) and (3) of the Money Laundering Protirodh Ain, 2012, is as same as the offence with which the petitioner had already been prosecuted and convicted in the UK. Any subsequent proceeding including the impugned proceeding and investigation is a fresh proceeding is prohibited under Article 35(2) of the Constitution and as such the petitioner cannot be tried for the second time and hence the initiation of the present proceeding is liable to be declared as unlawful and is of no legal effect.

13. He referring to section 403(1) of the Code of Criminal Procedure 1898, also submits that initiation of the present case is also barred by the said provision of law.

14. Mr. Ali referring to clause 7 of Article 14 of the ‘International Convenant on Civil and Political Rights’(herein after referred as ICCPR) finally submits that Bangladesh is one of the signatory states of the said covenant and the Government of Bangladesh, being a signatory to the Covenant, is bound by the Article 14(7) of the Covenant where it provides that no one Shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. And as such, the action of the Respondents are in clear violation of the said Covenant and is liable to be declared illegal and without lawful authority.

15. Mr. Md. Khurshid Alam Khan, the learned Advocate appearing for the Respondent No.1 submits that after lodging of the FIR the petitioner is a fugitive and thus, he has no locus standi to file the writ petition through attorney or authorized person. He also submits that it is well settled by the Appellate Division that a criminal proceeding or investigation process cannot be challenged invoking Article 102 of the constitution. He further submits that the writ petitioner committed offence of money laundering in UK and accordingly he was convicted and sentenced. The writ petitioner having brought a huge amount of money from London to Bangladesh illegally again deposited the same in the different bank accounts in Sylhet, Bangladesh in his name as well as in the names of his wife and other relatives and also invested some portion of money in share-market and by purchasing land-flats. Thus, the writ petitioner has committed separate and distinct offence of money laundering as defined in Ain of 2012 and it has no nexus with the offence of money laundering committed in London. Thus, the question of double jeopardy does not arise at all.

16. In course of hearing of the Rule Mr. Khan has informed the court that the Commission after completing the investigation of the case in the meantime submitted charge sheet against the writ petitioner and 04(four) others, which fact was not denied by the learned Advocate for the writ petitioner.

17. As per desire of the court Mr. Mahbubey Alam, the learned Attorney, has participated in hearing. He submits that since in the Ain of 2012 the provision of ‘International Double Jeopardy’ has not been incorporated, and as such this principle cannot be applicable as a matter of right or automatically. Thus, the plea of the writ petitioner for interfering with the criminal proceeding relying on the said covenant that is clause 7 of Article 14 of ICCPR is misconceived and not tenable in the eye of law. He further submits that annexure-J series, the copy of the case summary, statement of information from Crown Prosecution Service (CPS), were not attested or authenticated as per provision of section 86 of the Evidence Act and as such those documents have no evidentiary value and thus, there is no scope to consider the same in deciding the present issue.

18. In this particular case the moot question is whether the initiation and continuation of the impugned criminal proceeding is barred by the principle of ‘international double jeopardy’ in view of Article 14(7) of ICCPR adopted by United Nations Assembly, where Bangladesh is one of the signatories.

19. We would like to address the above issue in two ways. Firstly, whether Article 14(7) of the ICCPR or any other provisions of the same prohibits successive prosecution for the same course of conduct in which an accused was prosecuted and convicted in another sovereign country under its own law; and secondly, whether the principle of ‘international double jeopardy’ doctrine will be applicable in this particular case.

20. Mr. Ali, the learned Advocate for the writ petitioner, has extraneously argued that since writ petitioner once faced trial and convicted by a competent court of England for committing the offence of money laundering, he cannot be prosecuted further for the same laundered money in Bangladesh under the Ain of 2012.

21. Article 14(7) of ‘International Covenant of Civil and Political Rights[ICCPR]’ provides that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with law and penal procedure of each country.

22. This provision is almost similar to Article 35(2) of our constitution. So, Bangladesh has incorporated the provision of article 14(7) of ICCPR in its constitution. And as such, there is no room to say that Bangladesh being a signatory country of the said covenant ignored or deviated from the ICCPR.

23. In this particular case, it transpires that the writ petitioner is being prosecuted has not been tried and convicted ‘in accordance with the penal law and penal procedure’ of Bangladesh. The ICCPR does not prohibit successive prosecution of an individual in exercise of power given in law of Bangladesh as his earlier prosecution and conviction was not under our own penal law and penal procedure. He was prosecuted and convicted for act or conduct occurred beyond the territory of Bangladesh and under law of another sovereign country.

24. Bangladesh as a sovereign entity has the power independently to determine what act shall constitute offences and to punish such offences, by enacting laws. And thus, the court of law of Bangladesh, a sovereign entity, exercises these powers given in its own law and not that of any other state or country. Prerogatives of sovereignty of Bangladesh are the power to enforce its own law.

25. Admittedly, the accused was prosecuted, tried and convicted in UK under its own law and it was done under the distinct source of power and consequently there can be successive prosecution in Bangladesh for the same course of conduct which does not violate the prohibition on the doctrine of double jeopardy as guaranteed in Article 35(2) of our Constitution. For the words ‘same offence’ indisputably refers to act and omission punishable under laws enacted by our sovereign parliament and it does not refer to that punishable under law of any other foreign country. The principle reflected in Article 35(2) of our constitution is further confirmed in section 26 of the General Clauses Act of 1897 and in section 403 of the Code of Criminal Procedure of 1898.

26. Bangladesh a sovereign entity shall determine what act or omission committed within its territory constitutes an offense in exercise of power under its own law, not that of the other. Therefore, no violation of the prohibition on double jeopardy results from successive prosecutions under the relevant penal law of Bangladesh, because by one act the accused has committed two offences—one is beyond the territory of Bangladesh which was punishable under law of UK a distinct sovereign entity and now is being prosecuted for the same act constituting offence punishable under law of our own.

27. It is to be noted that the territoriality principle is the most common basis of jurisdiction and is widely regarded as a manifestation of state sovereignty. At its simplest, the territoriality principle denotes that a sovereign state has jurisdiction over conduct or act or omission that occurs within its territorial borders. The ‘separate sovereigns’ doctrine allows for two states to prosecute for the same offence occurred within jurisdiction of both locations. Thus, literary ICCPR does not prohibit successive prosecution of the offence committed by same course of conduct under a distinct law of a sovereign country.

28. Prosecuting and convicting of a Bangladeshi national for an offence committed beyond territory of Bangladesh creates no bar for his or her successive prosecution for ‘same act’ in exercise of power given under our own law. The doctrine reflected in Article 35(2) of our constitution does not extend to any offender prosecuted and convicted in a country of distinct sovereignty, under its own statute.

29. From annexure-J series, copies of case summary and statement of information from Crown Prosecution Service, UK it transpires that though the name of writ petitioner was Misbauddin but he changed his name in UK as Robin Chowdhury; he faced trial in the crown Court, at Southwark, UK in Indictment Trial No.T20117476 and on 24.08.2011 charged was framed against him in total 18 counts and only count no.15 was related to transfer money from UK to Bangladesh. The other counts of charge were under Fraud Act 2006 and also under Crime Act, 2002 for transferring money from UK to Thailand, Switzerland and Tunisia. The writ petitioner on the following day (25.08.2011) pleaded guilty to 13 counts of charge on the indictment and accordingly he was convicted and sentenced.

30. In view of the above facts it is crystal clear that the writ petitioner was found guilty on admission on so many counts of charge including laundering money to Bangladesh and accordingly convicted and sentenced. And as such, at this stage it is very difficult to hold that both the offences are same and also there is no scope to declare the proceeding of this case illegal and without lawful authority relying annexure-J series, which are not admissible in evidence in view of the provision of section 86 of the Evidence Act.

31. Moreover, the money which was brought to Bangladesh by the writ petitioner was eventually possessed, transferred and converted knowing that such property is proceeds of crime. Thus, new and distinct offence of money laundering has committed in Bangladesh by the petitioner and accordingly the present case has been initiated.

32. In view of above, it cannot be said that the accused is being prosecuted twice for the ‘same offence’ merely for the reason that he has been convicted for the same act which constituted and offence punishable under the law of UK. It transpires that the accused allegedly by a single act violated laws of two sovereign states and thereby committed two distinct offences and thus the instant prosecution relating to an offence punishable under our own law even for the same act does not breach the doctrine of ‘double jeopardy’.

33. In the case of Hussain Mohammad Ershad Vs. Bangladesh and others, reported in 21 BLD(AD), page-69, it has been held:

“True it is that the Universal Human Rights norms, whether given in the Universal Declaration or in the Covenants, are not directly enforceable in national courts. But if their provisions are incorporated into the domestic law, they are enforceable in national courts. The local laws, both constitutional and statutory, are not always in consonance with the norms contained in the international human rights instruments. The national courts should not, I feel, straightway ignore the international obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national courts should draw upon the principles incorporated in the international instruments. But in the cases where the domestic laws are clear and inconsistent with the international obligations of the state concerned, the national courts will be obliged to respect the national laws, but shall draw the attention of the law makers to such inconsistencies.“ (Underlines supplied)

34. In the case of Saiful Islam Dilder Vs. Government of Bangladesh, (reported in 50 DLR, page-318) the decision of the Government handing over of Anup Chetia alias Golap Barua, a Indian citizen who was engaged in a movement for right of self determination of Assamees People, to Indian Government was challenged on the plea that extradition of Chetia to India in absence of any extradition treaty would violate the provision of Article 145A of the Constitution of the people’s Republic of Bangladesh. The writ petition was rejected in limine and the High Division observed that;

“Now it remains for us to consider the case cited from foreign jurisdiction. At the outset we must say that observations made therein are pious expression to secure international fundamental human right, norms obtaining in different declarations and covenants of different state parties to such instrument and have little binding force on the municipal courts. Such views no doubt have opened a new horizon of International Human Right law but in international human rights law interpretation adopted by national courts can at best only be persuasive authority. In Ramoz Vs. Diaz, the right of a foreign power to demand the extradition was created by treaty. And in US in absence of statutory or treaty provision no authority exists in the Government to surrender a fugitive criminal to a foreign Government. A careful reading of the judgment will show that the decision rests on Article VI of the treaty of Extradition made between Government of the US and the Government of Cuba. Article VI of the treaty exempts extradition of a fugitive charged with political offence from the treaty. But Extradition Act, 1974 of our country does not provide such exemption. Therefore, the decision which is only of a persuasive value and decided placing reliance upon Article VI of the Extradition Treaty has no manner of application to the facts of the instant case.“(Underlines supplied)

35. In the case of Bangladesh V. Unamarayen S.A. Panama, reported in 29 DLR, page-253, question arose whether private foreign companies enjoy immunity from arrest and seizures.

36. The High Court denied such immunity to be accorded to private foreign companies and declined to protect them from arrest and seizures. The court observed, “immunity is available under public international law to persons and properties of classified persons mentioned in the list which is usually filed by foreign missions and international agencies”.

37. Where there is clear domestic legislation on the disputed issue, the court gives effect to the domestic law, not to customary norms of international law. This particular aspect of domestic law vis-à-vis international custom was raised in the case of Bangladesh and others vs. Sombon Asavhan, reported in 32 DLR (AD), page-194. Bangladesh Navy captured three Thai fishing trawlers for illegal entrance and fishing in the territorial waters of Bangladesh. The question was whether the trawlers were within the territorial waters or the exclusive economic zone of Bangladesh. Instead of applying existing international law regarding territorial waters, the Appellate Division settled the issue on the basis of Bangladesh Territorial Waters and Maritime Zones Act, 1974, which lays down specific provisions for maritime boundaries for Bangladesh. The Appellate Division has observed:

“It is well settled that where there is municipal law on an international subject the national court’s function is to enforce the municipal law within the plain meaning of the statute”.

It further held:

“. . . . the point touches international law, since three fishing trawlers are involved and they have been captured from a place over which Bangladesh claims sovereignty. We are relieved from entering into long discussion of diverse laws, conventions, rules and practices of international law since there is complete code provided by our municipal law.”

38. Recently, our Appellate Division, in the case of Abdul Quader Molla Vs. Government of Bangladesh (Criminal Appeal No.24 of 2013 heard along with Criminal Appeal No.25 of 2013, page-131) has held:

“Nothing but the provision falling within the above constitutional periphery can be law and provision having force of law within the jurisdiction of Bangladesh. Therefore, even any international obligation or responsibility undertook by the Government cannot have any force of law within the jurisdiction of Bangladesh.

It will appear from the above provisions of the constitution, it is the parliament in general or the president under certain circumstances legislate and not the Government, and the Courts of law do not require to have regard to the acts of the Government including entering into treaties or adopting the convention when interpreting the law. Though International Convention, could be recognized upon ratification, it could be applied in our country only when its provisions are incorporated in our Municipal laws and thus for enforcing any international covenants under any convention to which this country is a signatory, the provisions of the convention have to be incorporated in our domestic law. Any international obligations/ responsibilities of the republic or any undertaking taken at the international level or any norms/ practices, howsoever regularly honoured by the state at international interactions, cannot be applicable in the domestic tribunal of the country unless the same is incorporated in the domestic law by a legislative action.”

39. In the above case Appellate Division has further held:

“There is no rule of CIL prohibits our domestic tribunal to proceed with the trial as per our domestic legislation, and as such, it can be safely said that rules of public international law allows our domestic tribunal to proceed with the trial as per our Act. In short, the rules of international law whether applicable or not, our domestic tribunal has the jurisdiction to continue with the trial in any manner acting in derogation of the rules of public international law.” (Underlines supplied)

40. It is true that the issue of ‘International Double Jeopardy’ is of increasing concern and importance, and this decision may will have an impact in the development of the law. But, said concept of ‘International Double Jeopardy’ is not directly enforceable in domestic court unless it is incorporated in domestic law. International law ought to be trans-formed into State law before it could be applied in State territories. In other words, international law must be specially adopted or incorporated within the municipal legal system by way of implementing act of the legislature. Since the principle of ‘International Double Jeopardy’ has not been incorporated in the Ain of 2012 and as such there is no scope to enforce the said principle within our domestic legal system.

41. Further, it is well settled that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the virus of law involved is challenged.

42. Having considered and discussed as above, we find no merit in the Rule.

43. Accordingly, the Rule is discharged. However there is no order as to cost.

Ed.

Writ Petition No. 13488 of 2015

Robiul Islam & others Vs. Secretary, Ministry of Land, Bangladesh Secretariat & others

Case No: Civil Petition for Leave to Appeal No. 1686 of 2005

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. T.H. Khan,,

Citation: V ADC (2008) 304

Case Year: 2008

Appellant: Robiul Islam & others

Respondent: Secretary, Ministry of Land, Bangladesh Secretariat & others

Subject: Property Law,

Delivery Date: 2007-05-27

Robiul Islam & others Vs. Secretary, Ministry of Land, Bangladesh Secretariat & others
V ADC (2008) 304

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J

Robiul Islam and others....... Petitioners
Vs.
Secretary, Ministry of Land, Bangladesh Secretariat and others..... Respondents

Judgment
May 27, 2007.

East Bengal State Acquisition and Tenancy Act, 1950.
Land Administration Manual, 1990
Article 229
Khulna City Corporation Ordinance, 1984
Hat and Bazar (Establishment and Acquisition) Ordinance, 1959

Declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collusive, inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar. ….. (2)

That the suit Bazar was established sometime in 1990 in the land of a private person and the then Mayor of Khulna City Corporation inaugurated market. The shopkeepers of the market formed a committee and are selling their respective goods and products in the market upon obtaining licence from the City Corporation and on payment of tolls to the City Corporation. Some interested persons in order to make illegal gain and to deprive the plaintiffs managed the above orders passed by the Ministry of land and other government functionaries directing to remove the Bazar upon demolishing the same. …. (3)

Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Md. Mahbubur Rahman, Advocate-on-Record- For the Petitioners.
T. H. Khan, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record-For Respondent No. 2.
Not Represented- For Respondent Nos. 1, 3-1076.

Civil Petition for Leave to Appeal No. 1686 of 2005.
(From the judgment and order dated 20.11.2005 passed by the High Court Division in Civil Revision Nos. 4703 and 5470 of 2003).

Judgment

Md. Joynul Abedin J.- This petition for leave to appeal has arisen out of the judgment and order dated 20.11.2005 passed by a Single Bench of the High Court Division in Civil Revision Nos. 4703 and 5470 of 2003 discharging the rule and thereby affirming the judgment and decree dated 30.7.2003 passed by the Additional District Judge, 1st Court, Khulna in Title Appeal Nos. 290 and 314 of 2002 affirming the judgment and decree dated 7.8.2002 passed by the learned Senior Assistant judge, Khulna in Title Suit Nos. 82 and 77 of 2000 dismissing the suit.

2. The petitioners and the proforma-respondents Nos. 5-1077 as plaintiffs instituted Title Suit No. 82 of 2000 in the Court of the learned Assistant Judge, Khulna Sadar, Khulna against the defendants Nos.1-5 for declaration that the order contained in memo dated 18.4.2000 passed by the Ministry of land and the order contained in memo dated 15.5.2000 passed by the Commissioner, Khulna   Division, Khulna and order contained in memo dated 12.6.2000 passed by the Assistant Commissioner (Land) are illegal, collusive, inoperative and not binding upon the plaintiffs and for permanent injunction against the defendants restraining them from taking over the possession of the Bazar and evicting the plaintiffs and other businessmen and demolishing the Bazar.

3. The case of the plaintiff-petitioners is that the suit Bazar was established sometime in 1990 in the land of a private person and the then Mayor of Khulna City Corporation inaugurated market. The shopkeepers of the market formed a committee and are selling their respective goods and products in the market upon obtaining licence from the City Corporation and on payment of tolls to the City Corporation. Some interested persons in order to make illegal gain and to deprive the plaintiffs managed the above orders passed by the Ministry of land and other government functionaries directing to remove the Bazar upon demolishing the same. The defendant No.2, Deputy Commissioner, contested the suit by filing a written statement contending that the (suit was not maintainable and the bazaar in question was established in violation of law and the same was therefore liable to be removed and demolished inasmuch as no hut and bazaar are permitted to be established or maintained by any private individual after the East Bengal State Acquisition and Tenancy Act came into operation. The contesting defendant also raised a plea that the bazaar in question was liable to be closed down in terms Article 229 of the Land Administration Manual, 1990.

4. The trial court dismissed the suit. Thereafter on appeal by the plaintiffs the appellate Court below dismissed the appeal and upheld the judgment and decree passed by the trial Court. The plaintiffs then moved the High Court Division in revision and the High Court Division discharged the rule affirming the judgment and decree passed by the appellate and the trail court dismissing the suit. This led the plaintiffs to file the civil petition for leave to appeal.

5. Mr. Abdul Wadud Bhuiyan, the learned Counsel for the petitioners submit that the High Court Division failed to under stand the facts and circumstances of the case and came to a wrong conclusion. He next submits that the High Court Division erred in dismissing the suit without applying the amended law i.e. the Hat and Bazar (Establishment and Acquisition) Ordinance, 1959 as amended in 1966 and also by applying the provisions of the Land Administration Manual, 1990 which has no manner of application after the Khulna City Corporation Ordinance, 1984.

6. We have considered the impugned judgment and the connected materials on record. We are not impressed by the submissions of Mr. Abdul Wadud Bhuiyan. In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the materials on record and appreciation of law arrived at a correct decision. There is, therefore, no warrant in law to interfere with the same.
The petition is accordingly dismissed.
Ed.

Rokia Begum @ Rokeya Begum Vs. The State, 3 LNJ (AD) (2014) 72

Case No: Criminal Appeal No. 14 of 2005

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Md. Showardi,,

Citation: 3 LNJ (AD) (2014) 72

Case Year: 2014

Appellant: Rokeya Begum

Respondent: The State

Subject: Confessional Statement, Commutation of Sentence,

Delivery Date: 2013-04-03

APPELLATE DIVISION
(CRIMINAL)

Nazmun Ara Sultana, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Haque, J,
Hasan Foez Siddique, J.

Judgment on
03.04.2013

Rokia Begum Alias Rokeya Begum
. . . Appellant
-Versus-
The State
. . . Respondent

Code of Criminal Procedure (V of 1898)
Section 164
Evidence Act (I of 1872)
Sections 24 and 30
Penal Code (XLV of 1860)
Sections 302/34
It appears that there is no direct evidence against the appellant of having taken any part in the killing of the victim, her own daughter. The confessional statement of the co-accused is no evidence by itself when considering the complicity of another co-accused, and can only be used to lend support to other evidence. In her own confessional statement the appellant did not inculpate herself in the assault on the victim. However, her subsequent conduct in confessing before the witnesses points a finger towards her complicity, but not to the extent of it. In such circumstances, the conviction of the appellant under section 302/34 cannot be said to be without basis or illegal. But in the light of the evidence it would not be consonant to justice to impose capital punishment on the appellant. . . . (30)

Code of Criminal Procedure (V of 1898)
Section 376
In the instant case, when the matter was heard by the High Court Division the convict had been in the condemned cell for less than three years, and hence the plea was not put forward. However, the convict has now been in the condemned cell for more than 11 years, which is beyond the threshold of six years mentioned by this Division in the Abed Ali case cited in the judgment. Thus the length of period by now can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life....(31)

Nalu Vs. State, 32 BLD (AD) 247 and Hazer Ali Mandal and others Vs. State, 37 DLR (AD) 87 ref.

For the Appellant : Mr. Md. Nawab Ali, Advocate-on-Record
For the Respondents: Mr. Shohrowardi, Deputy Attorney General, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record.

Criminal Appeal No. 14 of 2005

JUDGMENT

Muhammad Imman Ali, J:

This appeal, by leave, is directed against the judgement and order dated 16.05.2004 passed by the High Court Division in Death Reference No.34 of 2001 and the connected Jail Appeal No.3201 of 2001 accepting the reference and confirming the death sentence and dismissing the jail appeal thus maintaining the judgement and order of conviction and sentence dated 08.08.2001 passed by the Sessions Judge, Manikgonj in Sessions Case No.2 of 2001.

The prosecution case, in brief, was that the informant’s mother-in-law, accused Rokeya Begum and her adopted son accused Farid alias Reza used to work at Nizam’s Chinese Restaurant, Road No.126, House No.1/B, Gulshan. Approximately two months prior to filing of the case his mother-in-law took his sister-in-law Surja Begum (deceased victim) from his residence to her residence at Bangla Motor. On 16.06.2000 at about 10.30 p.m. his mother-in-law along with accused Farid came to the informant’s house at Manikgonj and told him that Surja had gone out of the house at 11.00 a.m. with Tk.3,300/- and her wherea-bouts could not be traced. At that time both Rokeya Begum and accused Farid were found to be sweating. Rokeya Begum was found barefooted and on query by her daughter, i.e. the informant’s wife, as to why she was not wearing her sandals, Rokeya Begum told her that at the time of boarding the bus one of the sandals fell and that is why the other one was thrown away. Rokeya Begum and Farid had their meal at the informant’s house and they stayed there for the night and in the morning they left for Dhaka. At about 7.00 a.m. the informant came to know from a co-villager that a dead body was found in the sugarcane field of co-villager Jaber Mollah. Having heard this, the informant went there and identified the dead body as that of his sister-in-law Surja Begum. Her throat was found tied with a scarf and the eyes were found to be damaged. The informant found a pair of shoes and one piece of sandal by the side of the dead body and the said sandal was identified as that of Rokeya Begum. The informant came to Dhaka and at first he went to the Chinese Restaurant where his mother-in-law used to work. There he met one of his co-villagers namely Siraj and enquired about his mother-in-law, sister-in-law and accused Farid. Siraj told him that all three left for Surja Begum’s maternal uncle’s house at Adamji on the previous day, i.e. 15.06.2000 at 5.00 p.m. The informant got suspicious and went to the residence of his mother-in-law at Bangla Motor. The informant disclosed to his mother-in-law about the recovery of the dead body of Surja Begum and took his mother-in-law to his house at Manikgonj and there she confessed to have killed Surja Begum with the help of accused Farid alias Reza. It is alleged that the informant’s mother-in-law had an illicit relationship with accused Farid and since Surja Begum disliked and protested it she was killed by strangulation. Hence, the informant lodged the First Information Report (F.I.R.) on 18.06.2000 before the Officer-in-Charge of Manikgonj Police Station, Manikgonj against the condemned prisoners under sections 302/34 of the Penal Code. Accordingly, Manikgonj P.S. Case No.13 dated 18.06.2000 corresponding to G.R. No. 307/2000 was started.

The Investigating Officer visited the place of occurrence, prepared the sketch map with index, prepared inquest report, examined the witnesses and recorded their statements under section 161 of the Code of Criminal Procedure. After completion of investigation he submitted Charge-sheet No.113 dated 30.11.2000 under sections 302/34 of the Penal Code against the two accused persons.

The case was ultimately transferred to the Court of Sessions Judge, Manikgonj where it was numbered as Sessions Case No.02 of 2001. Charge was framed under sections 302/34 of the Penal Code against the accused persons and read over and explained to them, to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined as many as 20 (twenty) P.Ws. who were cross-examined by the defence, but the defence did not examine any witness.

The defence case, as it transpires from the trend of cross-examination was that the accused persons were innocent and they had been falsely implicated in the case.

After close of recording of evidence, the accused persons were examined under section 342 of the Code of Criminal Procedure. They repeated their innocence.

The Sessions Judge, Manikgonj after hearing the parties and upon consideration of the evidence and materials on record convicted the accused persons under sections 302/34 of the Penal Code and sentenced them to death by his judgement and order dated 08.08.2001.

Reference under section 374 of the Code of Criminal Procedure was made to the High Court Division for confirmation of the sentence of death, which was registered as Death Reference No.34 of 2001.

Before the High Court Division Jail Appeal No.3201 of 2001 was preferred by the condemned petitioner, which was heard along with the death reference. By the impugned judgement and order, the High Court Division accepted the reference and dismissed the jail appeal and confirmed the judgement and order of conviction and sentence passed by the Sessions Judge, Manikgonj.

The condemned prisoners filed Criminal Petition for Leave to Appeal No.311 of 2004 with Jail Petition No.3 of 2005.

Mr. Md. Nawab Ali, submitted that since it was a case of capital sentence the right of appeal is guaranteed under the Constitution. He further submitted that he would not argue on merit rather he would argue only on ground of sentence. After hearing, leave was granted only to consider the sentence of the condemned petitioner.

Mr Muhammad Nawab Ali, the learned Advocate-on-Record appearing on behalf of the appellant submitted that the case against the petitioner is one of murdering her own daughter. This, he submitted was unnatural to contemplate. He submitted that there is no ocular or direct evidence against the petitioner and she has been convicted on the basis of tenuous circumstantial evidence. He submitted that even if the petitioner had any part in the murder, which is highly unlikely, it was neither proper nor just to award the death sentence in the facts and circumstances of the case. He prayed that the sentence of death may be commuted, keeping in view that the petitioner is an old lady who has suffered through the loss of her own daughter.

Mr. Shohrowardi, the learned Deputy Attorney General, appearing on behalf of the State-respondent made submissions in support of the impugned judgement and order of the High Court Division. He submitted that when a mother plots and carries out the murder of her own child in order to cover up her illicit relationship, she does not deserve any sympathy. He submitted that the prosecution has been able to prove her involvement in the murder and there is no scope to reduce the sentence in the facts and circumstances disclosed by the evidence on record.

We have considered the submissions of the learned Advocate-on-Record for the appellant and the learned Deputy Attorney General for the Respondent and perused the impugned judgement of the High Court Division and other connected papers on record.

The relevant law:

The law relating to murder in Bangladesh is based upon sections 299 and 300 of the Penal Code which define culpable homicide and murder. Just by way of comparison, it is noted that the same law applies in neighbouring India. However, over the years the procedures followed and matters considered before passing sentence for murder under section 302 of the Penal Code has varied. In Bangladesh the sentence for murder is death, or imprisonment for life. Hence, it is the normal course upon finding the accused guilty of an offence under section 302 of the Penal Code to sentence him to death unless any extenuating circumstances lead the Court to award the lesser sentence of imprisonment for life, and for that he would have to give his reasons. So, effectively the burden lies on the accused to provide grounds for awarding the lesser sentence.

On the other hand, in India the sentence for murder under section 302 of the Penal Code is similarly either death or life imprisonment, but the difference is that life sentence is considered to be the norm and the sentence of death is to be awarded only in the rarest of rare cases.

At this juncture it may be noted that in Bangladesh there is no longer in existence any provision for a sentence hearing, which existed under sections 250K(2) and 265K(2) of the Code of Criminal Procedure which were introduced by the Law Reforms Ordinance, 1978 (Ordinance No. XLIX of 1978) which provided as follows:

“250K(2):”Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of section 349 or section 562, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law”.
265K(2):”If the accused is convicted, the Court shall, unless it proceeds in accordance with the provisions of section 562, hear the accused on the question of sentence, and then pass sentence on him according to law”.

These two provisions provided the opportunity to the accused to plead for a lesser sentence.

However, these two provisions were subsequently omitted by section 21 of Ordinance XXIV, 1982 and section 3 of Ordinance XXXVII, 1983 respectively. On the other hand, section 325(2) of the Indian Code of Criminal Procedure, 1973 provides for a hearing of the accused on question of sentence, which was held in the case of Santa Singh Vs. State of Punjab reported in AIR 1976 (SC) 2386 to be a mandatory provision. In the said decision it was held as follows:

“This Court has taken the view that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgement of conviction to stay his hands and hear the accused on the question of sentence and give him an opportunity to lead evidence which may also be allowed to be rebutted by the prosecution”.

In the context of Bangladesh it is noted that in the prevailing adversarial system, there is very little scope for any accused persons to urge any plea in mitigation during the course of trial or at the time of examination under section 342 of the Code of Criminal Procedure. The accused practically stands by while his lawyer pleads for him. At the time of examination under section 342 of the Code of Criminal Procedure he is simply told what evidence has been placed against him and asked to comment on that evidence and he is asked whether he will produce any defence witness or say anything further. Having pleaded not guilty all through the trial, it is felt that any plea in mitigation at this stage would weaken the case of the accused. So, he says nothing more. In the absence of a sentence hearing there is no opportunity for the accused to bring to the notice of the Court any extenuating circumst-ances. The learned Judge conducting trial considers the points of view of the accused only so far as it is exposed during cross-examination of the prosecution witnesses and the statement of the accused given at the time of examination under section 342 of the Code of Criminal Procedure. It must be borne in mind that those aspects elicited by the defence counsel during cross-examination of prosecution witnesses are merely with the view to exonerate the accused from the charge levelled against him. The mitigating circumstances bearing around the accused, his family, social, economic and educational background etc. are seldom given any mention or importance. Thus there is little scope for the trial Judge to consider any mitigating or extenuating circum-stances other than those directly apparent from the prosecution evidence as having existed at the time of commission of the offence. This in my opinion puts the accused at a serious disadvantage so far as sentencing is concerned. Moreover, there being no sentencing guidelines, the tendency is for trial Judges to award the highest possible sentence provided by the law.

Sentence of death or imprisonment for life:

As mentioned earlier, according to the prevailing decisions in Bangladesh, the sentence for murder under section 302 of the Penal Code is death or imprisonment for life and also fine. The dichotomy of awarding sentence of death or life imprisonment has been raging for decades across the globe. As of the present day 35 out of 50 States in the USA still retain the death penalty. The countries of the European Union as well as European countries outside the Union have abolished the death penalty. On the other hand, India, being the largest democracy of the world has retained the death penalty.

England abolished the death penalty:

The Royal Commission on Capital Punishment 1949-53 was set up to consider and report whether “capital punishment for murder should be limited or modified”. The Commission recommended retention of capital punishment unless there was overwhelming public support for abolition, which there wasn’t. Under the terms of the Murder (Abolition of Death Penalty) Act 1965 hanging was suspended for an experimental period of five years. On the 16th of December 1969, the House of Commons reaffirmed its decision that capital punishment for murder should be permanently abolished. However, the death penalty was retained for offences like treason and piracy with violence until 1998. In 1999 the home secretary signed the sixth protocol of the European Convention of Human Rights which formally abolished the death penalty in the UK and ensured it could not be brought back.

Upon scrutiny of the 35th Report of the Law Commission on Capital Punishment, 1967, India retained the death penalty. There was lengthy discussion on the issue by the Indian Supreme Court in the case of Bachan Singh Vs. the State of Punjab (1980)2 SCC 684 (report published in 1967). Suffice it to say that India has found the sentence of death to be lawful penalty to be awarded, whereas in England death penalty was not favoured as a proper or necessary punishment.

Meaning of life sentence:

It can be stated that sentence of “imprisonment for life” as used in Bangladesh is utterly a misnomer; indeed it appears to be an erroneous interpretation. The way it has been interpreted, the word “life“ does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30(thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial. Hence, the sentence of imprisonment for life imposed at the time of delivery of judgement appears to be a lenient sentence and may in the minds of some appear to be not a proper sentence, especially when some horrific facts are disclosed in evidence.

Criminal justice in Bangladesh is guided by the Penal Code, 1860, the Code of Criminal Procedure, 1898 and the Evidence Act, 1872, all vestiges of British rule, which ended 66 years ago. The law in England has over the years transformed and developed and looks nothing like the law which the British left behind for us. Just to give one example, which is relevant in the present context, life sentence in England can mean any period of sentence measured in years and months which the Court feels is an appropriate period in the facts and circumstances of the case and can extend to a sentence of imprisonment for life which would mean that the prisoner would not be allowed to leave the prison throughout his natural life. Such a punishment is arguably “a fate worse than death”. Reference may be made to the famous case of the Moors murder where the accused Ian Brady and Myra Hindley were found guilty of murder of several children which took place between July 1963 and October 1965. Both the accused were sentenced to imprisonment for life and several appeals against their life sentence were made. But they were never released. Myra Hindley died in prison when she was aged 60; the other convict was declared insane and has been repeatedly asking to be allowed to die. This case clearly shows that for a criminal sentenced of impriso-nment for life meaning the rest of his life, death would have been a softer option. Hindley who was sentenced to life in 1966 just after the death penalty was abolished wrote in a letter; ”I knew I was a selfish coward but I could not bear the thought of being hanged. Although over the years I wish I had been” (as reported on BBC news dated 29.02.2000).

This day we find that in many countries, including England, after a sentence of life imprisonment is imposed the Judge may specifically order that the prisoner is not to be released before the expiry of a term of years which can be any number of years ranging from 10 to 60 years or even for the rest of his natural life, so long as the Judge follows the sentencing guideline issued by the appropriate authority. In the past the Lord Chief Justice sitting in the Court of Appeal issued sentencing guidelines by way of judgements. The Sentencing Council for England and Wales was established in April 2010, replacing the Sentencing Guidelines Council and the Sentencing Advisory Panel, its predecessor bodies.

In Bangladesh there is no specific authority to issue any sentencing guideline and as a result Judges are guided only by the sentences provided in the Penal Code and other special laws, and life sentence, in some cases, turns out to be a relatively lenient sentence. It is in this backdrop that many Judges choose the sentence of death for crimes which they consider to be most heinous since that effectively is the harshest punishment. Had there been any provision in our law for gradation of the life sentence or for expressing the view that the convict shall not be released during his life time, or for a specified number of years, then perhaps the Judges would opt for the longer life imprisonment, which may be considered a more harsh punishment than death. Moreover, as we have explained above, the trial procedure does not allow for any effective plea in mitigation after the verdict is pronounced. As a result the sentencing in most cases is arbitrary and there is no scope for the accused to plead for a lesser sentence or for the trial judge to take into account any mitigating circumstances since there was no opportunity to place any before him.

In considering the sentence of the appellant before us, we may aptly refer to the decision in Nalu Vs. The State, 32 BLD (AD) 247 where this Division referred to the following mitigating circumstances which are also relevant in the facts of the instant case:

The condemned prisoner has no history of prior criminal activity.

The condemned prisoner is not likely to commit any further act of violence.

She has been in the condemned cell since 8.8.2001, i.e. more than 11 years during which period the hangman’s noose has been dangling in front of her eyes.

We may also refer to the case of Hazer Ali Mandal and others Vs. The State, 37 DLR (AD) 87. In that case the conviction and death sentence was based on circumstantial evidence. The High Court Division commuted the sentence of death to one of imprisonment for life. This Division upheld the decision of the High Court Division.

Returning to the facts of the instant case, it appears that there is no direct evidence against the appellant of having taken any part in the killing of the victim, her own daughter. The confessional statement of the co-accused is no evidence by itself when considering the complicity of another co-accused, and can only be used to lend support to other evidence. In her own confessional statement the appellant did not inculpate herself in the assault on the victim. However, her subsequent conduct in confessing before the witnesses points a finger towards her complicity, but not to the extent of it. In such circumstances, the conviction of the appellant under section 302/34 cannot be said to be without basis or illegal. But in the light of the evidence it would not be consonant to justice to impose capital punishment on the appellant.

With regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light to this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death. It is noted that the High Court Division in rejecting this plea in other cases referred to the case of Abed Ali Vs. the State, 10 BLD (AD) 89. In that case this Division noted the observation of the High Court Division in the case of Nowsher Ali and other Vs the State, 39 DLR 57, that delay in execution cannot by itself constitute a mitigating circumstance but a delay of six years may be considered for commutation of death sentence to life imprisonment (emphasis added). When the case of Nowsher Ali came before this Division, it was held that “In some cases inordinate delay in execution of death sentence may be considered a ground for commuting it to transportation for life but some delay such as in this case should not be considered to be a ground for commutation, particularly when the delay is not due to any laches of the prosecution. In that case the condemned prisoner had been in the condemned cell for about 4 years. However, their Lordships in fact commuted the death sentence on the ground of bitter matri-monial relationship which played a part. In the instant case, when the matter was heard by the High Court Division the convict had been in the condemned cell for less than three years, and hence the plea was not put forward. However, the convict has now been in the condemned cell for more than 11 years, which is beyond the threshold of six years mentioned by this Division in the Abed Ali case cited above. Thus the length of period by now can be taken as one of the reasons to commute the sentence of death to one of imprisonment for life.

In the light of the above discussion, we are of the view that the judgement of the High Court Division be upheld so far as it relates to conviction of the appellant under section 302/34 of the Penal Code. The Criminal Appeal is, therefore, dismissed. However, in the light of the discussion regarding sentence, we are of the view that in the facts and circumstances of the case justice will be sufficiently met if the sentence of death is commuted to one of imprisonment for life. Accordingly, the sentence of the convict Rokeya Begum alias Rokaya Begum is modified to imprisonment for life.

With regard to Criminal Petition for Leave to Appeal No.342 of 2007, filed by condemned prisoner Faridur Rahman @ Reza, Mr. Md. Nawab Ali made similar submissions with a view to commutation of the sentence of death to one of imprisonment for life. He submitted that the condemned prisoner is in the prime of his life and has suffered in the condemned cell for over 11 years. However, unlike the evidence against the appellant Rokeya, the inculpatory confession of accused Foridur Rahman alias Forid alias Raza establishes the case against him beyond any shadow of doubt. This considered alongside the other circumstantial evidence against him, we are not inclined to interfere with the judgement and order of the High Court Division passed against the petitioner Foridur Rahman alias Forid alias Raza. Hence the Criminal Petition for Leave to Appeal is dismissed along with Jail Petition No. 03 of 2005.

Ed.

Rowshan Ara Begum & others Vs. Sitakundu Chandra Nath Chatuspaty Tole & others

Case No: Civil Appeal Nos. 126-28 of 2001.

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Abdul Quayum,Mr. Abdul Wadud Bhuiyan,,

Citation: VI ADC (2009) 721

Case Year: 2009

Appellant: Rowshan Ara Begum & others

Respondent: Sitakundu Chandra Nath Chatuspaty Tole & others

Subject: Property Law,

Delivery Date: 2006-04-09

Rowshan Ara Begum & others Vs. Sitakundu Chandra Nath Chatuspaty Tole & others
VI ADC (2009) 721

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Md. Tafazzul Islam J

Rowshan Ara Begum and others………….Appellants (In Civil Appeal No. 126 of 2001).
Zohara Khatun and other…...................Appellants (In Civil Appeal No.127 of 2001)
Ahasanuzzaman and others…................Appellants (In Civil Appeal No.128 of 2001)
Vs.
Sitakundu Chandra Nath Chatuspaty Tole and others….......Respondents (In all the appeals)

Judgment
April 9, 2006.

State Acquisition and Tenancy Act, 1950
Section 144A
Limitation Act, 1908
Article 142

From the appellant's side a feeble argument was made as to acquisition of title by the defendants by adverse possession. There was no pleading of the defendants as to acquisition or claim of title in the land in suit by adverse possession. The appellate Court considered the aforesaid contention of the defendants and in the background of the materials on record held that papers i.e. Ext.C. Ext.D and the Exts. B-B(2) series have not given rise to any claim of adverse possession by the defendants since the admitted position is that R.S. and P.S. record of rights stand in the name of Mela Committee and the Ext.D and B series are the papers subsequent to the dispossession of the plaintiff from the land in suit by the defendants and inspite of the fact stated in Ext. C the land was recorded in the name of the Mela Committee and that in Ext. C name of the defendants do not appear and that in Miscellaneous Case No.95 wherein order was made on 25.11.1961 (Ext.C) the defendants were not parties. On the top of everything no evidence was lead from the side of defendants to establish the case of acquisition of title in the land in suit by adverse possession. It has also been submitted from the side of the appellants that in case decree is passed in the suits that would violate the provision of Rule 9 of Order 20 of the Code of Civil Procedure. The submission so made is of no merit since description of the land in suit as given in the schedule is quite sufficient to identify the same both by referring to the boundary as well as by referring to the survey plot number. … (16)

Lawyers Involved:
Abdul Quayum, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-record-For the Appellants (In all the appeals)
Abdul Wadud Bhuiyan, Senior Advocate (Harendra Nath Nandi, Advocate, Shubrata Chowdhury, Advocate with him, instructed by Aftab Hossain, Advocate-on-record-For Respondent No. 1 (In all the appeals)
Not represented-Respondent Nos. 2-6 (In Civil Appeal No.126 of 2001).
Not represented-Respondent Nos.2-4 (In Civil Appeal No.127 of 2001).
Not represented-Respondent Nos.2-7 (In Civil Appeal No.128 of 2001).

Civil Appeal Nos. 126-28 of 2001.
(From the Judgment and Order dated April 9, 1997 passed by the High Court Division in Civil Revision No.7556 heard along with Civil Revision Nos.7557 and 7558 of 1991).

Judgment:

Md. Ruhul Amin J.- These appeals by the defendants of the respective suits, by leave, are against the judgment dated April 9, 1997 in Civil Revision No.7556 (heard along with Civil Revision Nos.7557 and 7558 of 1991) discharging the Rules obtained against the judgment and decree dated July 28, 1991 of the 2nd Court of Subordinate Judge (now Joint District Judge), Chittagong in Other Appeal Nos.30, 31 and 32 of 1986 allowing the same and thereupon decreeing the suit upon reversing the judgment and decree dated December 21, 1985 of the Court of Munsif (now Assistant Judge), Sitakunda, Chittagong in Other Class Suit Nos.157, 158 and 230 of 1984 (previously numbered 173, 174 and 175 of 1973 respectively) dismissing the same.

2. The suits were filed seeking declaration of title in respect of 30 decimals of land of R.S. Plot No.792 listed in R.S. Khatian No.1700 described in schedule 'Ka' to the plaint and recovery of khas possession of different quantity of land (part of the land described in schedule 'Ka' to the plaint) described in the schedule 'Kha' attached to the plaint of the aforementioned respective suits and for mesne profit.

3. The plaintiff, Sitakunda Chandra Nath Chatuspaty Tole (the Tale) filed the suit stating, inter alia, that the land in suit belonged to Sitakunda Mela Committee, that the plaintiff applied for land to the Sitakunda Mela Committee and the Sub-Divisional Officer on behalf of the Mela Committee gifted the land in suit by the deed of gift dated January 15, 1963 and handed over possession of the land so gifted to the plaintiff and since then the plaintiff possessed the same by constructing 'kacha' huts and let out the same to different persons on monthly rent basis, that during war of liberation 'kacha' huts were burned by the Pakistani Army and consequent thereupon the land in suit had fallen vacant and taking advantage thereof defendant No.1 of Other Suit No.157 of 1984, defendant No.1 of Other Suit No.158 of 1984 and defendant Nos.1-4 of Other Suit No. 230 of 1984 entered upon the land and constructed huts in January, 1973 and the said defendants let out the huts so constructed by them to the other defendants of the respective suits. It is also the case of the plaintiff that it requested the defendants to hand over vacant possession of the land in suit but they did not pay any heed to that and as such the plaintiff was constrained to file the suit.

4. It is also the case of the plaintiff that it has leased out the land other then the land described in the 'Kha' schedule to others who have been described as tenant-defendants on monthly rent basis and at the time of P.S. survey instead of recording the land in suit in the name of the plaintiff, the record has been wrongly prepared in the name of some other persons who had no right, title and interest in the land in suit.

5. The suit was contested by the principle defendant/defendants by filing written statement denying the material averments made in the plaint and stating, inter alia, that the land in suit was never the land of the Sitakunda Mela Committee and the same belonged to C.S. recorded tenants Elahi Boksha and Mowla Boksha and the land being full of jungle and bushes the C.S. recorded tenants abandoned the land and in that state of the matter the defendants upon cleaning the jungle and bushes made the land usable and constructed huts and started business therein about 35/40 years back, that the story of the plaintiff that the defendants dispossessed it is not true. It was also the case of the defendants that the land in suit was the khas land and thereupon the defendants entered into the land upon cleaning the jungle and bushes and possessing the land described in the 'Kha' schedule of the plaint of the respective suits upon paying rent to the revenue department. It was also the plea of the defendants that the land of both the schedules claimed by the plaintiff is unspecified and unidentifiable.

6. The trial Court dismissed the suit on the finding that the land described in the deed of gift Ext.2 and the land described in the schedule attached to the plaint is not the same and the land of the deed of gift is the land other than the land in suit, that there is no averments in the plaint nor it has been proved from which portion of the land in suit plaintiff has been dispossessed, that at the time of P.S. survey in connection with the preparation of the Khatian Miscellaneous Case No.95 dated 25.11.1961 was initiated and from the order-sheet (Ext. c) of the said Miscellaneous case, it is seen that there was a local inquiry and at that time defendants were found in possession of the land in question, that the defendants are in possession of the land in suit for more then 40 years and the plaintiff has never possessed the land in suit on the basis of deed of gift and plaintiff's story of possession in and dispossession from the land in suit is not true, that it is the case of the plaintiff that the defendants dispossessed the plaintiff in 1973 but the plaintiff filed the suit on September 28,1983 and as such plaintiff's claim for recovery of possession is barred by limitation, that the suit filed by the plaintiff is not maintainable as there was no cause of action to file the same, that the plaintiff failed to prove his case.

7. The plaintiff went on appeal. The appellate Court reversed the judgment and decree of the trial Court on the finding that Ext.1-R.S. khatian shows that the land in suit was recorded in the name of Sitakunda Mela Committee represented by the Sub-Divisional Officer, Sadar, Chittagong and the superior landlord was Government of India (ভারত সম্রাট) and the land of the Ext.1, the R.S. khatian was rent free, that although defendants claimed that the land in suit belonged to C.S. recorded tenants Elahi Boksha and Mowla Boksha but the defendants are not claiming the land either as the heirs of the said two persons or as the settlement holders from the said persons and the defendants are claiming the land on the basis of Ext. D- B.S. khatian, that the plaintiff has filed Ext.4(b) to show that they are possessing the other portion of the land through the tenants, that the plaintiff has filed Exts.4(a) and (b), Exts.5(ka), order in other Execution Case No.32 of 1984, Ext.6 decree in Title Suit No.256 of 1981 and the order dated 11.1.1983 passed in Title Suit No.256 of 1981 in support of its title and possession in the land in suit, that defendants filed mutilated and torn copy of the C.S. পর্চা and the rent receipt- Exts. B-B(2) shows payment of rent in July, 1975, March 1978, and May 1983, but of the said rent receipts, rent receipt of July, 1975 is erased, that the defendants have filed the order dated 25.11.1961 (Ext.C) passed in Miscellaneous Case Np.95 in support of their claim of possession in the land in suit, that on perusal of the documents filed by the parties it is seen that the plaintiff got the land in suit from the R.S. recorded tenant by the deed of gift and thereupon having had got the possession of the gifted land, possessed the same by letting out to the tenants and the huts in the land in suit were burned in 1971 finds support from the indirect admission of the witnesses examined by the defendants, that defendants failed to prove that they are in possession of the land for long time and thereupon acquired title in the land in suit by adverse possession, that there is no evidence from the side of the defendants that they got the land from the C.S. recorded tenants Elahi Boksha and Mowla Boksha , that by the B.S. পর্চা defendants have not acquired any title in the land in suit, that B.S. khatian No.700/8 was prepared in the name of Sitakunda Mela Committee and the plot mentioned therein is 792 comprising 65 decimals of land and out of that plaintiff got 30 decimals of land by gift, that because of Ext. D (B.S.পর্চা) title of the plaintiff can not be ignored or rejected since in the C.S. record Government of India was the superior landlord and the land of plot No.792 listed in the said R.S. khatian was possessed by the Mela Committee through the Sub-Divisional Office, that defendants had no occasion to claim adverse title against the Mela Committee or the Government or the plaintiff, that it is the case of the plaintiff that it was dispossessed from 'Kha' schedule land in January, 1973 and as such as per provision of Article 142 of the Limitation Act the plaintiff was required to file suit within 12 years from the date of dispossession and having had filed the suit in 1983, the same was filed quite within the period of limitation and as such the suit was not barred by limitation. The appellate Court finally held that plaintiff has title in the land in suit and that the plaintiff was dispossessed by the defendants from the land in Suit on January 22, 1973 and as the B.S.পর্চা prepared in the name of the defendants was without any basis, it can not be said that the defendants' claim in the land in Suit is genuine and legally sustainable, that the defendants in disprove of title of the plaintiff have not brought on record any material.

8. The defendant/defendants of the respective suit as against the judgment of the appellate Court moved the High Court in revisional jurisdiction and obtained Rules in the aforementioned civil revisions. It was the contention of the petitioners before the High Court Division that the judgment of the appellate Court was not a proper judgment of reversal since the finding of the trial Court, which was based on material evidence, was not reversed, that the finding of the appellate Court in the background of the Ext. C dated 15.11.1961 that although possession of the persons other then the Sitakunda Mela Committee was found but that would not disentitle the plaintiff to get the relief was erroneous and contrary to the materials on record, that finding of the appellate Court that the suit was not barred by limitation is also contrary to the materials on record, particularly because of the Ext. C and that the suit of the plaintiff was barred by waiver, estopple and acquiescence since inspite of their averments made in the plaint that they were dispossessed from the land in suit in January 1973 but they waited for 10 years since the date of dispossession and thereby allowed the defendants to believe that they are the owners of the land in suit, that the appellate Court against the established principle of law that the plaintiff is to establish his case and can not have the relief on the weakness of the defense case allowed the appeal on the finding that defendants could not prove their claim as regard the land in suit on the basis of continuous possession, that the trial Court dismissed the suit on the finding that the land in suit is different from the land described in Ext.2, the deed of gift, on the basis of which plaintiff claimed the land but the appellate Court did not advert itself to the said finding, that the trial Court dismissed the suit on the finding that the land in suit is vague and indefinite and that the plaintiff failed to prove from which part or portion of the land in suit it was dispossessed but the appellate Court while allowing the appeal did not reverse the said finding of the trial Court, that the appellate Court was in error in decreeing the suit without adverting to the finding of the trial Court that the land in suit was indefinite and identity of the land was not established by local inspection, that record of right having been in the name of the defendant and as the same has presumption of correctness under section 144A of the State Acquisition and Tenancy Act the appellate Court was in error in discarding the Ext. D, (B.S.পর্চা) wherein name of the defendant appears, that though record of right and the rent receipts are not document of title but certainly those being the document of possession and in limited case can be used as a collateral evidence of title the appellate Court was in error in setting aside the judgment and decree of the trial Court, that appellate Court having had not discussed the evidence and in the absence of non-discussion of the evidence, correct decision in the background of the facts and circumstances of the case as could not be arrived at for ends of justice the case required to be sent back to the appellate Court for disposal on due consideration of the evidence on record, that appellate Court was in error in reversing the judgment of the trial Court inspite of the fact that the plaintiff's suit was bad for not describing the land in suit as requires by the provision of Order 7, Rule 3 of the Code of Civil Procedure.

9. As against the aforesaid contentions of the defendant-petitioner(s) it was contended on behalf of the plaintiff-opposite-party that the appellate Court on scrutiny of the evidence on record correctly arrived at the finding that the plaintiff proved its title and possession in the land in suit on the basis of Ext.2 i.e. deed of gift dated January 15, 1963, that the appellate Court on consideration of the pleading and the evidence lead by the plaintiff in support thereof quite legally held that the suit was not barred by limitation as per provision of Article 142 of the Limitation Act, since plaintiff while in possession on the basis of the deed of gift from January 1963 was dispossessed on January 1973 and the suit was filed in 1983 and as such the suit was filed quite within time, that the appellate Court on due consideration of the materials on record as well as evidence, both oral and documentary set aside the finding of the trial Court relating to title and possession of the plaintiff, that the appellate Court on proper scrutiny of Ext. C and the other materials as well as the evidence, both oral and documentary correctly held that defendant failed to prove their basis of possession and continuation of possession thereafter as was noted in Ext. C. since the plaintiffs by reliable evidence proved their possession since January 1963 and dispossession in January, 1973 by the defendants, that the appellate Court having had noticed that in Ext. C names of the defendants do not appear and that inspite of the fact noted in the Ext. C the land was recorded in the name of the Sitakunda Mela Committee, the said Court has quite correctly recorded the finding that on the basis thereof (Ext. C) defendants are not claiming that their possession was recorded in Ext. C, rather it appears as the land was recorded in the name of Mela Committee, persons whose names appear in Ext. C gave up their claim in respect of the land in question, that the appellate Court was quite correct in discarding the case of the defendants of being in possession of the land since 1947 as because the persons, whose names appear in Ext. c claiming their possession from 1941, that the appellate Court because of the evidence lead from the side of the plaintiff was quite correct in arriving at the finding that the plaintiff established its claim of title in and possession of the land in suit and followed by dispossession therefrom, that only in Other Suit No. 157 of 1984 defendant examined 3 witnesses and in other two suits only principal defendants examined themselves, that the contention of the petitioner that the judgment of the appellate Court is not based on consideration of the materials on record is not correct since the appellate Court considered the evidence, both oral and documentary and thereupon made the decision as to the claim of the plaintiff in the land in suit, that though the defendants claimed possession since 1947 but in support thereof no evidence was lead and defendants in support of their claim of possession in the land in suit relied on the B.S. record and the Ext. B-B(2)-rent receipts which stands in the name of the defendant of the Other Suit No. 158 of 1984, but the defendants of the other two suits did not file any parcha or rent receipt and that the rent receipt Exts. B-B(2) are of years of 1975, 1978 and 1983 and the appellate Court had noticed that the rent receipt of the year 1975 was erased or in other words was a tempered rent receipt, that the contention of the petitioners that there ought to have a local inspection for ascertaining identity of the land in suit is of no substance since the defendants did not challenge the identity of the land in suit, that defendants failed to make out a case of adverse possession, that the plaintiff's suit was not bad for not describing the land in suit as per requirement of law, particularly as per provision of Order 7, Rule 3 of the Code of Civil Procedure, that no case from the side of the defendants was made out as to waiver, estopple and acquiescence on the part of the plaintiff and the contention of the defendants that plaintiff having had filed the suit after 10 years and allowed the defendants to believe that they have title in the land in suit is of no substance, that contention of the defendants to remand the suit to the appellate Court for disposal on discussion of the evidence is also of no merit since there is no finding in the judgment of the courts below that because of insufficiency of the evidence on record it was difficult for the said courts, particularly appellate Court to arrive at a decision as regard the case of the parties in the suit.

10. It may be mentioned that the trial Court dismissed the suit on the finding that description of the land given in the plaint does not tally with the land as in Ext.2, the deed of gift and that by Ext. 2 some other land other than the land in suit was gifted to the, plaintiff, that plaintiff did not mention from which portion of the land in suit defendants dispossessed the plaintiff, that the Exts.4 and 4(b) the tenancy agreements were created for the purpose of the suit and that Ext. C shows that the defendants are in possession at least for 40 years which is well beyond the period of limitation and that the land of Mela Committee is under a separate khatian and the plaintiff was never in possession of the suit land and as such there is no question of dispossessing it from the land in suit and the suit was barred by limitation since it is the case of the plaintiffs that they were dispossessed in 1973 and the suit was filed after expire of 10 years and as such the suit was barred under Article 186 of the Limitation Act.

11. The High Court Division in the background of the contention of the respective parties considered the evidence, both oral and documentary, led by the parties and other materials on record and thereupon arrived at the finding that the finding of the appellate Court as to induction of the plaintiff in the land in suit on the basis of Ext.2 and as to title in the background of the Exts.5, 5A and 6 read with Ext.1 (R.S. khatian) and Ext.2 (deed of gift) is quite sustainable, that the appellate Court on consideration of the Ext. A (C.S. khatian), Ext. C (order dated 25.11.1961 passed in the Miscellaneous Case No.95) as well as Ext. B series (rent receipts) and in the light of B.S.পর্চা filed by the defendants as well as the evidence adduced by the parties was quite correct in arriving at the finding that plaintiff acquired the land by gift from the Mela Committee, constructed huts thereon and let out the same to different tenants and the huts were burned by Pakistani army in 1971 and taking advantage of the land being vacant the defendants made forcible entry therein and thereupon erected huts in the land in suit and thus dispossessed the plaintiffs, that the appellate Court upon considering the evidence, both oral and documentary of the parties, and particularly noticing absence of documentary evidence in support of the case of the defendants was quite correct in disbelieving the defendants' story as to possession of the suit land on the basis of Ext. C. since defendants did not claim the land through the C.S. recorded tenants and in Ext. c name of defendants was not, that the appellate Court was not in error in not accepting the case of the defendants as of their being in possession since they failed to produce any evidence either oral and documentary to establish their possession since 1947 or thereafter, that the appellate Court was quite correct in holding that the Ext. C and the Ext. D (B.S. parcha) do not create any title in favour of the defendants since in Ext. C name of the defendants do not appear and that there was no basis for preparation of Ext. D in the name of the defendants of Title Suit No.158 of 1984 as because inspite of the materials in the Ext. C the land was recorded in the name of the Mela Committee both in R.S. and B.S. khatian and in the B.S. khatian possession of the Mela Committee was recorded, that there is no dispute that the Mela Committee gifted 30 decimals of land of R.S. plot No.792 listed in R.S. khatian No. 1700, that no evidence was lead from the side of the defendants that in the Miscellaneous Case No.95, wherein order was made on 25.4.1961 as evident by Ext. C, the defendants were parties along with the person whose name appeared in the Ext. C and that being the state of the matter the appellate Court was correct in holding that on the basis of Ext. C defendants can not raise any claim as to the land in suit in any respect or can not claim any possession in the land in suit since inspite of the Ext. C, in B.S. khatian land in suit and other land was recorded in the name of the Sitakunda Mela Committee and as to that fact no exception was taken from the side of the defendants, that the appellate Court on consideration of the documentary evidence as well as the oral evidence held that plaintiff got the land in suit described in schedule 'Ka' by the deed of gift and also got possession on the basis of deed of gift and thereupon erected huts and the same were burned in 1971 and the fact of burning of the huts in 1971 finds support indirectly from the evidence of the D.Ws. The appellate Court on consideration of the oral evidence as well as the documentary evidence held that the plaintiff has title in the land in suit and it was dispossessed from the land in suit on January 22, 1973 and the defendants upon dispossessing the plaintiff erected huts there, that by the B.S. পর্চা no title was created in favour of the defendant, that the appellate Court on independent consideration of the materials on record as well as the evidence lead by the parties correctly held that the plaintiff has established its right, title and interest in the land in suit as well as possession therein and also the fact of dispossession by the defendants from the land in suit, that it is not correct to say that the appellate Court without taking into consideration the evidence both oral and documentary reversed the finding of the trial Court, that although the defendants claimed that they are in possession of the land in suit for more than 30/40 years but except Ext. B series, which relates to the period subsequent to the date of dispossession of the plaintiff, the defendants did not file any paper to show that they paid rent before 1975 or that any record was prepared in their names prior to B.S. record, Ext. D, that the finding of the appellate Court that the suit is not barred by limitation is quite legally sound since the suit was filed within 12 years from the date of dispossession and the finding of the trial Court on the question of limitation is totally incorrect since the same was made against the provision of law as in Article 142 or 144 of the Limitation Act, that the appellate Court was quite correct in holding that the defendants failed to establish that they are possessing the land for the last 30/40 years and as against the said claim of the defendants, the plaintiff has proved that the defendants dispossessed it from the land in suit in 1973, that the trial Court while dismissing the suit left out of consideration the R.S. and S.A. khatians and the appellate Court considered the documentary evidence and upon considering the documentary and oral evidence made its judgment placing reliance quite correctly on the R.S. and S.A. khatian and was not in error in discarding the Ext. D since the same was prepared subsequent to the dispossession of the plaintiff from the land in suit and there was no basis for the preparation of the Ext. D in the name of the defendant of Title Suit No.158 of. 1984, that trial Court was in error in holding that the land in suit is unspecified, indefinite and vague since there was no such definite case from the side of the defendants and moreover the land in suit was described referring to the plot number and the khatian number as well as by referring to the boundary and in support of the claim in the land in suit plaintiff filed Ext.2, the deed of gift and the defendant did not challenge the genuineness thereof, nor disproved the correctness of the facts in Ext.2, that the defendants in their pleading did not plead any case of acquiring title in the land in suit by adverse possession, nor they established by leading reliable evidence their claim of acquiring title in the land in suit by adverse possession, that the trial Court dismissed the suit without discussing the oral evidence and failed to consider the documentary evidence in its correct perspective and as against that the appellate Court duly considered the evidence, both oral and documentary and thereupon reversed the findings and decisions of the trial Court and set aside the judgment of the trial Court upon assigning cogent reason.

12. Leave was granted to consider the contentions that the land in suit belonged to C.S. recorded tenant Elahi Boksha and Mowla Boksha and it having not been established by the plaintiff how Sitakunda Mela committee got the land of C.S. khatian or in other words how Sitakunda Mela Committee acquired title of the C.S. recorded tenant as regard the land in question and obtained possession of the land in suit and thus plaintiff having had failed to prove title and possession in the land in suit the High Court Division was in error in arriving at a finding that the lower appellate Court has correctly found title and possession as regard the land in suit in favour of the plaintiff. It may be mentioned defendants while opposing the claim of the plaintiff in the land in suit proceeded their case upon contending that the land in suit belonged to C.S. recorded tenants Elahi Boksha and Mowla Boksha and the land in suit or in other words land of the C.S. recorded tenants being full of jungle and also bushes, they abandoned the land and thereupon Revenue Department of the Government having had represented to the defendants that the land belonged to the Government they i.e. defendants went into possession of the land and upon clearing the jungle and bushes made the land in suit or in other words land of the C.S. recorded tenants usable and thereupon possessing the land for the last 30/40 years by paying rent to the Government. It may also be mentioned that defendants are not claiming the laud through Elahi Boksha and Mowla Boksha, nor has placed any material before the Court as to acquiring title through Elahi Boksha and Mowla Boksha. The defendant on the basis of Ext. C i.e. order passed in Miscellaneous Case No.95 in the year 1961 tried to make out a case that the land in suit was neither belonged to the plaintiff, nor to the Sitakunda Mela Committee and as Ext. C shows that Mela Committee was not in possession but the land was possessed by the persons whose names find place in Ext. C, as such plaintiff did not acquire any title on the basis of Ext.2 in the land in suit. The lower appellate Court as well as the High Court Division considered the Ext. C and thereupon arrived at the finding that claim of the defendants as regard the land in suit on the basis of Ext. C is not sustainable since inspite of the fact whatever noted therein the land was recorded in the name of Sitakunda Mela Committee and the possession was also noted in favour of the Mela Committee. The High Court Division as well as the lower appellate Court also noticed that in Ext. C names of the defendants do not appear, nor the defendants brought any material on record to show that in Miscellaneous Case No.95 they were parties in the category of the petitioner and as the land was recorded inspite of the material in Ext. C in the name of the Sitakunda Mela Committee the High Court Division as well as the lower appellate Court was of the view, in our opinion quite correctly, that ultimately at whose instance Miscellaneous Case No.95 was initiated they abandoned their claim as against the land in suit since in R.S. khatian the land in suit was recorded in the name of the Sitakunda Mela Committee.

13. The learned Counsel for the appellant(s) in the respective appeals primarily submitted that the lower appellate Court was in serious error in setting aside the judgment of the trial Court while the said Court i.e. trial Court dismissed the suit on the finding amongst orders that the land described in the suit is indefinite, uncertain and vague. This submission has been made upon referring to the schedule 'Ka' of the plaint, particularly schedule 'Ka' of Title SuitNos.157 and 158 of 1984. It may be mentioned 3 Title Suits i.e. Title Suit Nos.157, 158 and 230 of 1984 were filed on the same date seeking declaration of title in respect of 30 decimals of land of plot No.792 listed in R.S. khatian No.1700 on the basis of Ext.2, the deed of gift in favour of the plaintiff by the Sitakunda Mela Committee on January 15, 1963. The land in respect whereof declaration of title so sought was described in schedule 'Ka' to the plaint. As stated hereinbefore that in the background of the description of the land given in schedule 'Ka' to the plaint of Title Suit Nos.157 and 158 of 1984 it was contended that the land in suit being vague, indefinite and uncertain or in other words having not been described in the light of the document Ext.2 on the basis of which plaintiff claiming the land in suit the same was liable to be dismissed and the trial Court was quite correct in dismissing the suit on that ground. The schedule as given in the aforesaid two title suits is as follows:
"-:(ক) তপশীল (বিরোধয়):
জিলা-চট্টগ্রাম, মৌজা-মহাদেবপুর,থানা সীতাকুন্ড, আর,এস জরিপের ১৭০০ নং খতিয়ানের ৭৯২ নং দাগের আন্দর পশ্চিমাংশে .৩০ শতক।
চৌহদ্দিঃ-
উত্তরে-টেম্পল রোড
দক্ষিনে-লাল ডিঘী
পুর্বে-বাদী
পশ্চিমে-আছনজ্জমা গং।"

14. It is pertinent to mention that in Title Suit No.230 of 1984 schedule 'Ka' is as follows:
"-:তপশীল (বাদীর দান প্রাপ্ত জমি):-
জিলা-চট্টগ্রাম, মৌজা-মহাদেবপুর, থানা-সীতাকুন্ড,
আর,এস জরিপের ১৭০০ নং খতিয়ানের ৭৯২ নং দাগের আন্দর পশ্চিমাংশে .৩০ শতক।
চৌহদ্দিঃ-
উত্তরে-টেম্পল রোড
দক্ষিনে-লাল দিঘীর জলজলা, সীতাকুন্ড মাদ্রাসার জমি
পুর্বে-উত্তরে পাড়স্থিত পাকাঘাট ও সীতাকুন্ড প্রাথমিক অবৈতনিক স্কুলের জায়গা
পশ্চিমে-অক্ষয় কুমার দাশের দোতালা পাকা গৃহ।"

15. The description of the land in suit given in schedule ‘Ka’ of Title Suit No.230 of 1984 is quite inconformity to the schedule given in Ext.2 i.e. the deed of gift dated January 15, 1963. It may also be mentioned that the southern and northern boundary of the land in suit as given in schedule 'Ka' to the plaint of Title Suit Nos.157 and 158 is the same as in Ext.2. As against the contention of vagueness of the land in suit of the appellants upon referring to the schedule of the plaint of Title Suit Nos.157 and 158 of 1984 it has been submitted by the learned Counsel for the plaintiff Respondent that as per provision of Order 7, Rule 3 of the Code of Civil Procedure the land in suit has been described upon referring to plot number, khatian number and also mentioning name of mouza wherein the land in suit situates and as in one of the suits which was tried along with the Title Suit Nos.157 and 158 of 1984 the schedule given being quite inconformity to the schedule given in Ext.2 on the basis whereof the plaintiff is claiming right, title and interest in the land in suit and the defendants having jointly contested the suit it can not be said that there was any difficulty on their part about the identity of the land in suit. The learned Counsel for the Respondent has also submitted that when the land has been described upon referring to the settlement plot number and the khatian number and that northern and southern boundary of the land in suit given in the schedule 'Ka' to the plaint of Title Suit Nos.157 and 158 of 1984 being uniform to the schedule as given in Exii.2 and in the other suit i.e. in Title Suit No.230 of 1984 conforming to the description as in Ext.2 and the subject matter of all the suits being the one compact of land as in Ext.2 the contention of the defendants that the land being indefinite and unspecified the lower appellate Court and the High Court Division was in error in not dismissing the suit is not well founded as defendants did not feel any difficulty in contesting the suit or in other words they contested the suit being quite aware of the identity of the land in suit since it was pleaded by the defendants that the land in suit i.e. land of plot No.792 of R.S. khatian No. 1700 belonged to Elahi Boksha and Mowla Boksha, the C.S. recorded tenants although they did not file any paper showing acquiring of title from the said persons nor they claimed interest in the land in suit through the said persons. In our view, as contended by the learned Counsel for the Respondent, that the mistake as to eastern and western boundary as regard the land in suit was bonafide respect of the 2 suits i.e. Title Suit Nos.157 and 158 of 1984 since in the other suit i.e. Title Suit No.230 of 1984, which was filed on the very day as the other two suits were filed, the land in 'Ka' schedule was correctly described in the light of Ext.2. It has also been submitted on behalf of the appellants that the suit was bad for non-impleading the necessary parties, particularly Sitakunda Mela Committee, the recorded tenant in P.S. khatian, the mosque, which is in the land in suit and the Club and that no relief has been sought against the said parties who are admittedly on the land and as such the suit was not maintainable and the decree if any passed would be unexecutable. The plaintiff has established the fact that Sitakunda Mela Committee has gifted 30 decimals of land out of the land as listed in P.S. khatian and delivered possession to the plaintiff and that plaintiff possessed the same till dispossession by the defendants. The genuineness of the Ext.2 by which Sitakunda Mela Committee gifted the land to the plaintiff is not challenged or in other words genuineness of the Ext.2 has not been dislodged from the side of the defendants. This being the position the contention that plaintiff as did not implead Sitakunda Mela Committee as the party in the suit, the suit is bad for defect of party and that decree if any obtained in the suit in question the same would be unexecutable is of no merit since gift made by Sitakunda Mela Committee in favour of the plaintiff has been found by the High Court Division as well as by the appellate Court is genuine and that there is no material on record that subsequent to 1963 Sitakunda Mela Committee at any point of time claimed any interest in the land in suit. It is seen from the materials on record that there is a mosque in a part of the land in suit with the approval of the plaintiff and the club is in the land in suit as lisensee of the plaintiff. It was contended by the defendants that there is a public latrine in the land in suit but this fact has been denied by the plaintiff's witnesses and from the defendants' side the said fact was not established. In the afore state of the matter plaintiff's suit was not bad for not making the mosque and the club party in the suit. It has been contended on behalf of the appellants that no evidence was brought on record from the side of the plaintiff that on the basis of the deed of gift possession was handed over to it. In repelling the said contention plaintiff has examined P.W.1 who has stated that on the basis of the deed of gift possession was given to the plaintiff and the said witness has been corroborated by P.W.3. It has also been contended by appellants that there is no evidence that tole was established in the land in suit and the gift so made was acted upon. It is seen from the evidence of P.W.1 that tole was established in the land in suit-and he has been corroborated by P.W.2, P.W.3 and P.W.5. The above being the materials on record the contention as to that there is absence of evidence as to establishing tole and acting upon of the Ext.2 is of no merit. It has also been contended on behalf of the appellants that recovery of possession has been sought upon giving uniform boundary in respect of different quantity of land. The contention so made is of no merit since on perusal of the schedule 'Kha' of the plaint of the respective suits it is seen that except northern and southern boundary the two other boundaries are not same or similar. The southern and northern boundary of the land in suit is common in the schedule 'Kha' of all the suits since from the description of the land given in the schedule of Ext.2 it is seen the -land in suit is located on the south of temple road or in other words on the north of the land in suit is temple road and on the south ‘দিঘী’ or in other words on the north of the ‘দিঘী’ the land in suit is located and the front side of the land is the northern boundary which is on the south of the road i.e. the temple road. Since the boundary of the land in respect whereof khas possession has been sought for is not the same and similar as contended on behalf of the appellants and it being the definite case of the plaintiff that upon dispossessing it from the land, which is part of the land in 'Ka' schedule, in 1973 the defendants' erected huts as described in schedule 'Kha' and the defendants having not denied that they are not on the land as described in schedule 'Kha' to the plaint of the respective suits we are of the view the contention that the decree that has been passed by the appellate Court and affirmed by the High Court Division would not be executable is of no substance. It may be mentioned here that although it was the case of the defendants that they are on the land in suit for more than 30/40 but in support thereof did not produce any paper, rather it is found from the evidence of D.W.1 that he raised huts in the land in suit after 2/1 year of the liberation. It may be mention this D.W.I is the defendant No.1 in Other Suit No.230 of 1984. D.W.2 has stated that he has no paper to show that, his father possessed the land in suit from 1949 till 1973. It may be mention D W.1 has stated-that before 1973 huts on the suit land were burned. So from the evidence of this witness it is seen that the huts in the land in suit as stated by plaintiff were burned and it is the case of the plaintiff that huts were burned in 1971 by Pakistani army and that has been established by the plaintiff by the evidence of reliable witness.

16. The learned Counsel for the appellant upon referring to the discrepancy of the description of the land in suit as in 'Ka' schedule submitted that the land being not properly described or in other words being indefinite and for that trial Court having had dismissed the suit the High Court Division as well as the appellate Court were in error in arriving at the finding that the land in suit as contended by the defendants vague, indefinite and uncertain is not correct. It may be mentioned the suits, in all three, were filed on the same date and in the suits i.e. in Suit Nos. 157 and 158 of 1984 in 'Ka' schedule southern and northern boundary was given as per the deed of title, but the eastern and western boundary were not as in the deed of title. In the other suit i.e. in Title Suit No.230 of 1984 the boundary of the land in 'Ka' schedule was given as per the deed of title i.e. Ext.2. The High Court Division on consideration of the evidence and the other materials on record held that the plaintiff has described the land mentioning the plot number and the khatian number and also described the land by mentioning the boundaries uniformly north and south, except in two suits stated eastern and western boundary different from the Ext.2, but for that it can not be said that the land in suit is indefinite and unspecified and vague since defendants were very much aware that the land in suit is of plot'No.792 and they contested the claim of plaintiff as to the land in schedule 'ka' as the relief sought in the suit was as regard the land described in 'ka' and 'kha' schedules. It is seen from the evidence of D.W.4, who is defendant No.1 in Title Suit No. 158 of 1984, that the defendants being quite aware about the identity of the land in suit contested the suit and further defendants were aware which particular land was in suit or in other words as regard which particular land plaintiff was seeking relief evident from the cross examination directed by the defendants to the P.Ws. There is no dispute' that the land in suit was recorded in the name of Mela Committee in the R.S. khatian and the P.S. khatian was also prepared in the name of the Mela committee inspite of the observation in Ext. C i.e. order passed in Miscellaneous Case No.95. It may be mentioned on Miscellaneous Case No.95 defendants of the instant cases were not parties and their names also do not find place in Ext. C. In the background of the said fact the appellate Court as well as the High Court Division held that there was no basis for the preparation of Ext. D i.e. B.S. khatian in the name of one of the defendants and the payment of rent by the Exts. B-B(2) can not be made basis, since B.S. khatian and the rent receipts relate to the period subsequent to the dispossession of the plaintiff from the land in suit, for holding that the defendants have title and possession in the land in suit. The learned Counsel for the appellants also has submitted that fact being that in the suit land there is a mosque and club and also public latrine and the same having had not been impleaded relief as to declaration of title in the land in suit can not have and upon over looking those material facts the High Court Division as well as the appellate Court were in serious error in not holding that the suit is not maintainable. In repelling the aforesaid contention of the appellants the learned Advocate for the Respondent has referred to the evidence of P.W.1 who has stated that the mosque and the club are the plaintiff's lisencee and the said witness has also denied the existence of public latrine. P.W.1 has been corroborated by P.W.3 and P.W.5. Because of afore mentioned evidence the contention of the appellants that without impleading the mosque and club the suit having been filed seeking the relief for declaration of title the same is not maintainable is of no merit. It may be mentioned it is more or less admitted fact or in other words undisputed fact that the land in suit belonged to the Sitakunda Mela Committee and possession of the said Committee has been established by the evidence of P.W.1, P.W.3 and P.W.4 as well as by the documentary evidence Ext.2 and the R.S. as well as P.S. khatians. The defendants although pleaded that the C.S. recorded tenant Elahi Boksha and Mowla Boksha were the owners of the land in suit, but the fact is that the defendants are not claiming the land through the C.S. recorded tenants. As mentioned hereinbefore their case was that the land in suit being covered by jungle and bush and they were being told by Revenue department that the land belong to the Government they cleared the jungle and bush and made the same usable and thereupon upon erecting huts they are possessing the land in suit. As stated hereinbefore the land belonged to Sitakunda Mela Committee has been established by the oral as well as by the documentary evidence and on the basis of the evidence on record High Court Division as well as the appellate Court held that the land belonged to the Sitakunda Mela Committee and the plaintiff got the land from the Mela Committee. The appellate Court on consideration of the evidence and other materials on record held that plaintiff got the land from the R.S. recorded tenant Sitakunda Mela Committee by the Ext.2, deed of gift and possessed the land through monthly tenants and that the temporary structures in the land in suit burned in 1971. It may be mentioned it was the case of the plaintiff that in 1971 the huts wherein plaintiff had monthly tenants were burned by the Pakistani army and that taking advantage of the land being vacant defendants entered on the land and erected huts. As against the said case of the plaintiff it was the case of the defendants that they are in possession of the land for 30/40 years. It may be mentioned the appellate Court on scrutiny of one of the exhibits of B series i.e. rent receipt of 1975 found the same erased or in other words tampered and the other two rent receipts relates to the period subsequent to the year of dispossession as claimed by the plaintiff. The undisputed position is that R.S. and P.S. records stand in the name of the Sitakunda Mela Committee and in that background the appellate Court as well as the High Court Division held that there was no basis for the preparation of the Ext. D in the name of one of the defendants. It is in the evidence of D.W.2 that he erected huts after '2/1' year of the liberation war of Bangladesh. D.W.2 has stated that he has no paper to show that his father and after him he is on the land from 1947 to 1973. On consideration of the evidence produced from the side of the plaintiff and the evidence lead from the side of the defendants the appellate Court as well as High Court Division arrived at the finding that the land in suit was possessed by the plaintiff and the defendants dispossessed the plaintiff therefrom. It was submitted by the learned Counsel for the appellants that evidence is absent from the side of the plaintiff to show that on the basis of Ext.2, the deed of gift, the plaintiff got the possession of the land in suit or that anybody handed over possession to the plaintiff and that evidence also is lacking about establishment of tole in the land in suit. The submission so made is not correct. As from the evidence of P.W. 1 it is seen that in the light of the Ext.2 the possession was handed over to the plaintiff. P.W. 1 has been corroborated by P.W.3. As regard the establishment of to be P.W.1 has stated about the establishment of tole and in support thereof submitted the resolution book (Ext.8) and he has been supported by P.W.2, member of the to be committee and also by the P.W.3 who has deposed about the fact of tole committee. As it has been stated hereinbefore that it was the contention from appellants' side the land suit was in uncertain, unspecified and vague, but the evidence from the side of the defendants is otherwise, as the D.W.1 has stated that the land in suit is on the south of the temple road, that Jagabondhu's shop is west of the land in suit and D.W.4 has stated that the land in suit is of plot No.792. From the appellant's side a feeble argument was made as to acquisition of title by the defendants by adverse possession. There was no pleading of the defendants as to acquisition or claim of title in the land in suit by adverse possession. The appellate Court considered the aforesaid contention of the defendants and in the background of the materials on record held that papers i.e. Ext.C. Ext.D and the Exts. B-B(2) series have not given rise to any claim of adverse possession by the defendants since the admitted position is that R.S. and P.S. record of rights stand in the name of Mela Committee and the Ext.D and B series are the papers subsequent to the dispossession of the plaintiff from the land in suit by the defendants and inspite of the fact stated in Ext. C the land was recorded in the name of the Mela Committee and that in Ext. C name of the defendants do not appear and that in Miscellaneous Case No.95 wherein order was made on 25.11.1961 (Ext.C) the defendants were not parties. On the top of everything no evidence was lead from the side of defendants to establish the case of acquisition of title in the land in suit by adverse possession. It has also been submitted from the side of the appellants that in case decree is passed in the suits that would violate the provision of Rule 9 of Order 20 of the Code of Civil Procedure. The submission so made is of no merit since description of the land in suit as given in the schedule is quite sufficient to identify the same both by referring to the boundary as well as by referring to the survey plot number.

17. In the background of the materials on record and the discussions made herein-above we are of the view the High Court Division was not in error in affirming the judgment and decree of the lower appellate Court since the same was based on due consideration of the evidence, both oral and documentary. On examination of the judgment of the High Court Division we do not find any infirmity of the kind calling for interference.
Accordingly the appeals are dismissed with costs.
Ed.

Rowshan Ara Begum Vs. General Certificate Officer, Feni, (Mohammad Ullah, J.)

Case No: Writ Petition No. 11403 of 2013

Judge: Gobinda Chandra Tagore, J And Mohammad Ullah, J.

Court: High Court Division,

Advocate: Mr. Minhazul Hoque Chowdhury, Advocate,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Rowshan Ara Begum

Respondent: General Certificate Officer, Collectorate Building, Feni and 7 (seven) others

Subject: Constitution of Bangladesh

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Gobinda Chandra Tagore, J

And

Mohammad Ullah, J.

Judgment on

06.08.2018

}

Rowshan Ara Begum

. . .Petitioner

-Versus-

General Certificate Officer, Collectorate Building, Feni and 7 (seven) others

. . .Respondents

Constitution of Bangladesh, 1972

Article 102

The petitioner in a formidable circumstances and finding no other alternative filed an application stating that she is not liable to pay the arrear bills however, if the fine and surcharge are exonerated she intended to pay the actual bill of respondent No. 4, company with an intention to get the connection of the meter into her name. Since law does not permit the respondent No. 3 to place any claim against the petitioner for arrear bills, the initiation and continuation of the certificate proceeding is liable to be declared to have been initiated without lawful authority. Moreover, there cannot be estoppel against a statute. . . . (19)

Daulatpur Ice Cold Storage Ltd. and another Vs. Chairman, Power Development Board and others, 57 DLR (2005) 109 and Ram Chandra Parasad Sharma and others Vs. State of Bihar and another, AIR (1967(SC) 349 (V 54 C66) ref.

Mr. Minhazul Hoque Chowdhury, Advocate

. . .For the petitioner

Mr. A.Z.M. Mohiuddin, Advocate

. . . For the respondent No. 3

JUDGMENT

Mohammad Ullah, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the Rule Nisi was issued calling upon the respondents to show cause as to why initiation and continuation of the proceedings of Certificate Case No. 18 of 2012 under provisions of Public Demands Recovery Act, 1913 (“the Act, 1913”) then pending in the Court of General Certificate Officer and Executive Magistrate, Feni (respondent No. 1) should not be declared to have been initiated and continued without lawful authority and of no legal effect and/or why such other or further order or orders should not be passed as to this Court may seem fit and proper.

2. At the time of issuance of the Rule on 18.11.2013, all further proceedings of Certificate Case No. 18 of 2012 then pending in the Court of General Certificate Officer and Executive Magistrate, Feni was stayed initially for a period of 6(six) months from date and subsequently from time to time the period of stay has been extended.

3. Facts for disposal of the Rule as stated in the Writ Petition, in short, are that 82(eighty two) decimals of land of C.S. Plot Nos. 21, 22, 23 and 27, C.S. Khatian Nos. 81, 226 and 202 corresponding to S.A. Plot Nos. 21, 25, 31, 32 and 33, S.A. Khatian Nos. 358, 540 and 607 under Birinchi Mouza, Feni Sadar, Feni originally belonged to respondents No. 5-8 and their mother Foyzer Nessa who incorporated a company named M/S. Ananda Biscuit Private Limited (respondent No. 4) and the biscuit factory building was established inside the said land. They got an electricity connection from office of the Executive Engineer, Power Distribution Division, Bangladesh Power Development Board, Feni (the respondent No. 3) under account No. F/13. The respondent No. 3 installed Meter No. 56991154 for calculation and record of the consumed electricity bills.

4. It has been stated in the Writ Petition that though the factory building of the respondent No. 4-company was established inside the said land but it was never vested to the company and belonged to respondents No. 5-8 and their mother as their personal property. The respondents No. 5-8 obtained a loan facility from Rupali Bank Limited, Feni Branch, Feni for their biscuit manufacturing business purpose and ultimately they failed to continue their business and production of company was shut down in the year, 1999. Since a huge amount of electricity bill of respondent No. 4-company was due, respondent No. 3, office of the executive engineer on 31.05.1999 disconnected the electricity connection therefrom. Neither the petitioner was a shareholder of respondent No. 4-company nor she had any relation with it. The petitioner was not aware of arrear electricity bills of respondent No. 4-company as because no demand notice of such dues ever was hanged over on the factory premises or no notice was published to that effect from the office of the respondent No. 3 till 2011. The respondents No. 5-8 and their mother obtained loan facility to run the business of the respondent No. 4-company from Rupali Bank Limited, Feni Branch, Feni upon mortgaging 5.92 acres of land along with 82 decimals of land from Birinchi Mouza wherein the biscuit factory building was established.

5. At one stage of their business when the respondents No. 5-8 failed to continue the factory as well as their business, they decided to sell the land for repayment of the loan taken from Rupaly Bank Limited. Accordingly, the respondent No. 6 sold 30 decimals of land out of 82 decimals of land from Birinchi Mouza to husband of the petitioner, Shamsul Hoque Mojumder through a registered sale deed No. 1900 dated 25.02.2009. Thereafter, the respondent No. 7 also sold 15 decimals of land therefrom to the petitioner by registered deeds No. 8960 and 843 dated 25.10.2010 and 30.01.2011 respectively.

6. Accordingly, the petitioner and her husband became the owner and possessor of 30+15=45 decimals of land out of 82 decimals of land from the aforesaid plots and khatians. Meanwhile, the respondents No. 5-8 repaid their entire liability to Rupali Bank and it executed a deed of redemption and the property was redeemed. Md. Shamsul Hoque Mojumder, husband of the petitioner died on 19.03.2009 leaving behind the petitioner as his wife, 5(five) sons and 2(two) daughters who became the owner and possessor of the said land by virtue of inheritance. While the petitioner and her sons and daughters have been possessing and enjoying the said land as true and lawful owner, all on a sudden, the petitioner got a notice on December, 2012 issued under section 7 of the Act, 1913 and for the first time she came to know that the impugned certificate proceedings has been initiated against her for recovery of arrear electricity bills, surcharge, and interest amounting to Taka 83,06,074.00 (taka eighty three lac six thousand seventy four only). After obtaining the aforesaid notice, the petitioner rushed in the certificate court and found that the respondent No. 3 sent a written requisition on 24.11.2012 to the respondent No. 1 in a prescribed form for recovery of arrear electricity bills consumed by the respondent No. 4-company under account No. F/13, Meter No. 56991154 for the period of March, 1998 to October, 1999. Thereafter, on receiving such requisition the respondent No. 1 on 12.12.2012 signed a certificate alleging that the demand is due to the petitioner but she never consumed any electricity under account F/13, Meter No. 56991154. She purchased only 15 decimals of land out of 82 decimals of land wherein the respondent No. 4-company established a biscuit factory and consumed the electricity. The General Certificate Officer without considering the mandatory provision of law mainly the Act, 1913 signed a certificate upon receiving requisition from the respondent No. 3 which has been registered as Certificate Case No. 18 of 2012. A petition was filed at the instance of the petitioner denying the liability of the demanded bill in the certificate court. The petitioner neither purchased any share of the respondent No. 4-company nor had any relationship with the said company. The respondent No. 4-company is still in existence and the respondents No. 5-8 are still acting as shareholders and directors of the said company and the company has not been winding up in accordance with law.

7. The petitioner being aggrieved by and dissatisfied with the certificate proceedings initiated against her moved this Court and obtained the Rule Nisi and the order of stay as stated above.

8. The Rule has been contested by the respondent No. 3, through Mr. A.Z.M. Mohiuddin, learned Advocate who filed an Affidavit-in-Opposition, on behalf of the respondent No. 3, controverting the statements of the Writ Petition contending, inter alia, that having been fully aware of the arrear electricity bills of respondent No. 4, Ananda Biscuit Factory, the petitioner purchased the said factory together with 82 decimals of land whereupon the factory was established. Therefore, the petitioner is liable to pay the arrear bills.

9. It has further been stated in the Affidavit-in-Opposition that the petitioner, by a representation dated 18.06.2012, addressing to the respondent No. 3 amongst others stated that the liability of the said arrear electricity bill may be reduced upon waving the surcharge imposed thereon and prayed 1(one) year time for making the payment of the principal amount of the said arrear electricity bills by 12 (twelve) monthly equal installments and also prayed for changing the electricity connection into her name and therefore she cannot be absolved from the liability of the respondent No. 3.

10. Mr. Minhazul Hoque Chowdhury, learned Advocate appearing for the petitioner submits that according to the provisions of section 6 of the Act, 1913, it is the duty of the Certificate Officer having been received of a written requisition to determine as to whether the demand is recoverable and that recovery of such demand is not barred by law but in the instant case the respondent No. 1 without mentioning anything about his satisfaction signed a certificate and initiated the proceedings against the petitioner and as such, the initiation and continuation of the certificate proceedings is liable to be declared to have been initiated without lawful authority and is of no legal effect.

11. The learned Advocate next submits that as per provisions of section 54A of the Electricity Act, 1910 the charges for supply of energy or any other outstanding against a consumer under the said Act shall be recoverable as an arrear of land and the period of limitation for such realization of area of revenue is governed by Article 110 of the Limitation Act, 1908. Wherein 3(three) years limitation period has been prescribed from the date of arrear and that view of the mater since the certificate proceeding has not been initiated within the stipulated period of limitation, the initiation and continuation of the certificate proceedings is liable to be declared to have been initiated without lawful authority.

12. The learned Advocate next submits that according to the provision of section 56 of the Act, 1913 the provisions of Limitation Act, 1908, except sections 6-9 of the said Act, is applicable to all proceedings under PDR Act and as such the demand of the certificate holder is barred by law of limitation and the right whatever may be of the respondent No. 3 has been extinguished by operation of law stipulated therein.

13. The learned Advocate further submits that from the facts and circumstances it is abundantly clear that the petitioner did not consume any electricity as demanded and as such if any allegation of arrear bills, the respondent No. 3 can claim against the respondent No. 4-company who consumed the electricity under account No. F/13, Meter No. 56991154.

14. The learned Advocate lastly submits that the Certificate Court has initiated the proceeding without considering the provision of law mechanically and therefore the proceeding is liable to be declared to have been initiated without lawful authority and is of no legal effect.

15. The learned Advocate for the petitioner to substantiate his submission has referred to a decision in the case of Daulatpur Ice Cold Storage Ltd. and another Vs. Chairman, Power Development Board and others reported in 57 DLR(HCD)(2005)109 with regard to the provision of limitation.

16. The learned Advocate for the respondent No. 3, reiterated the facts as stated in the affidavit-in-opposition as his submissions who seeks to rely on the decision in the case of Ram Chandra Prasad Sharma and others Vs. State of Bihar and another reported in AIR(1967)(SC)349 (V 54 C 66).

17. Let us examine the provisions of law of the Electricity Act, 1920. Clause (c) of section 2, which is the definition Clause of consumer, reads as follows:

Section 2

(a)..........

(b).........

(c) “consumer” means any person who is supplied with energy by a licensee, or who is the owner or occupier of the premises which are for the time being connected for the purposes of a supply of energy with the works of a licensee.

18. Having considered the provisions of law particularly the definition of consumer, it appears that the name of the petitioner cannot be treated as a consumer of the respondent No. 3 since she never used the electricity provided in the name of the respondent No. 4-company under a meter and as such the respondent No. 3 cannot claim arrear bills from the petitioner and the certificate court without determining the actual debtor cannot demand the due bill from the petitioner. On that count, we are of the view that the very initiation and continuation of the certificate proceedings against the petitioner is without jurisdiction.

19. With regard to the submission of the learned Advocate for the respondent No. 3 that the

Writ Petition No. 11403 of 2013

Rupak Dey Vs. Commissioner of Customs and others, 17 BLT (AD) (2009) 314

Case No: Civil Petition for leave to Appeal No. 293 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Citation: 17 BLT (AD) (2009) 314

Case Year: 2009

Appellant: Rupak Dey

Respondent: Commissioner of Customs

Subject: Customs, Fiscal Law,

Delivery Date: 2008-1-23

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Md. Hassan Ameen, J.

Rupak Dey
…………...........................Petitioners
Vs.
Commissioner of Customs and others
…………………….…......Respondents

Judgment
January 23, 2008.

Constitution of Bangladesh, 1972
Article 102
Customs Act, 1969
Section 30
In order to challenge the Tariff Value in force the writ petitioner must disclose reliable and relevant materials in the writ petition itself showing that the Tariff Value as fixed is not fair or has no nexus with the prevailing international market rate , otherwise the petition is not entertainable and must be dismissed.… (4)

Case Referred To-
Mostafa Kamal Vs. Commissioner of Customs and others, 52 DLR (AD) 1

Lawyers Involved:
Maqbul Ahmed, Advocate, instructed by A. K. M. Shahidul Huq, Advocate-on-Record- For the Petitioner.
Not represented- the Respondents.

Civil Petition for leave to Appeal No. 293 of 2006.
(From the judgment and order dated 28.11.2005 passed by the High Court Division in Writ Petition No. 1577 of 1999)

JUDGMENT

Mohammad Fazlul Karim J.

This petition for Leave to Appeal is directed against the judgment and order dated 28.11.2005 passed by the High Court Division in Writ Petition No. 1577 of 1999 discharging the Rule.

2. The petitioner in course of his business opened a letter of credit on 02.02.1999 through National Bank Limited, Khatoongonj Branch, Chittagong for importing of DRAGON BRAND CHINA ORIGIN white cigarette papers for an amount of US $ 36,160.00. On arrival of the consignment at Chittagong the petitioner submitted two bills of Entry on 14.03.1999 along with all necessary papers and documents to the customs authority for the purpose of assessment of customs duty, tax and other charges, on the basis of the C & F price made but the respondents instead of making the assessment on the basis of the C & F price made the assessment at the rate of US $ 1800.00 per metric ton being the Tariff value.

3. Mr. Maqbul Ahmed, learned Advocate, appearing for the petitioner submits that the High Court Division failed to take notice that the imposition of the duty on the basis of Tariff value pursuant to notification No.67/99 Customs dated 01.02.1999 is arbitrarily and has no objective basis and does not reflect the fair price of the imported goods in the international market and as such the impugned judgment is liable to be set aside that section 25 of the Customs Act does not confer authority or to determine arbitrary and fictitious Tariff value and in that view of the matter the impugned judgment is liable to be set aside; that imposition of duty on the basis of tariff value determined by executive order creates restriction on freedom of trade and thereby violated the fundamental rights of the petitioner to carry business as guaranteed by Article 22 of the constitution and as such, the impugned judgment is liable to be set aside.

4. It appears from the record that as per provisions of Section 30 of the Customs Act the importer is liable to pay the duty, tax and other charges at the rate prevailing on the date of submission of the Bill of Entry and the petitioner being well aware about the provisions of Section 30 of the Customs Act opened the Letter of Credit and inasmuch as the Tariff Value under reference has been fixed before opening of the L.C. by the petitioner. Accordingly, the petitioner is barred apart from the provision of Section 30 of the Contract Act under the principle of waiver, acquiescence and estoppel from challenging the Tariff Value as fixed for the purposes of assessment of duty, tax and other charges by the Customs Authority. Further, the petitioner did not disclose any relevant or reliable material in the writ petition to show that the Tariff Value as fixed has no nexus with the prevailing international market rate and or the Tariff Value as fixed is inflated one. It also appears that our appellate Division in the case of Mostafa Kamal Vs. Commissioner of Customs and others reported in 52 DLR (AD) 1 has observed that in order to challenge the Tariff Value in force the writ petitioner must disclose reliable and relevant materials in the writ petition itself showing that the Tariff Value as fixed is not fair or has no nexus with the prevailing international market rate, otherwise the petition is not entertainable and must be dismissed.

In view of the above, we find no substance in the submissions of the learned advocate for the petitioner.

Accordingly, the petition is dismissed.

Ed.

Rupali Bank Ltd. and others Vs. Shawkat Ara Salauddin and another

Case No: Civil Appeal Nos. 97-98 of 1997.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mahmudul Islam,A J Mohammad Ali,Ataul Huq,,

Citation: I ADC (2004) 337

Case Year: 2004

Appellant: Rupali Bank Ltd. and others

Respondent: Shawkat Ara Salauddin and another

Subject: Property Law,

Delivery Date: 2004-04-05

Rupali Bank Ltd. and others Vs. Shawkat Ara Salauddin and another
I ADC (2004) 337

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Rupali Bank Ltd. Head office, Motijheel Commercial Area, Dhaka...........Appellant (In Civil Appeal No. 97 of 1997).
Government of Bangladesh, Represented by the Secretary Ministry of Works, Dhaka......... ..Appellant (In Civil Appeal No. 98 of 1997).
Vs.
Shawkat Ara Salauddin and another.....................Respondent (In both the appeals)

Judgment
April 5, 2004.

Registration Act, 1908
Section 28(2), 30(2)
Evidence Act, 1872
Section 76(6)

We are of the view that Annexure L to the leave petition and the certified copy produces before us prima facie shows that late Md. Serajuddin having transferred his title and interest in the property in question to Standard Bank by deed of conveyance date 19.8.1965, the respondents at the time of filing the Writ Petition No. 2465 of 1992 had no title at all to the property in question and so the respondents, without title, was not entitled to pray for a Writ of mandamus for directing the Ministry of Works to mutate their names in the records. …. (22)

Lawyers Involved:
Mahmudul Islam, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record - For the Appellant (In Civil Appeal No. 97 of 1997)
AJ Mohammad Ali, Additional Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record - For the Appellant (In Civil Appeal No. 98 of 1997)
Khondker Mahbubuddin Ahmed, Senior Advocate (K.S. Nabi, Senior Advocate with him) instructed by Aftab Hossain, Advocate-on-Record - For Respondent Nos. 1, 6-11. (In Civil Appeal No. 97 of 1997)
Ataul Huq, Advocate-on-Record - For Respondent No. 14 (In Civil Appeal No. 97 of 1997)
Not Represented - Respondent Nos. 12, 13 & 15 (In Civil Appeal No. 97 of 1997).
Khondker Mahbubuddin Ahmed, Senior Advocate, K.S. Nabi, Senior Advocate, instructed by Aftab Hossain Advocate-on-Record - For Respondent Nos. 6-11 (In Civil Appeal No. 98 of 1997).
Ataul Huq, Advocate-on-Record - For Respondent No 14 (In Civil Appeal No. 97 of 1997)
Not Represented - Respondent Nos. 1-5, 12, 13 & 15 (In Civil Appeal No. 97 of 1997).

Civil Appeal Nos. 97-98 of 1997.
(From the Judgment and Order dated 27 June, 1996 passed by the High Court Division in Writ Petition No. 2465 of 1992).

Judgment

Md. Tafazzul Islam J. - These two appeals by leave arise out of the judgment and order dated 27.6.1996 passed by the High Court Division in Writ Petition No. 2465 of 1992 Making the Rule absolute and directing the Ministry of Works, Government of Bangladesh, to mutate the names of the respondents in place of late Md. Serajuddin, within 60 days from the date of receipt of the copy of the judgment, in the relevant records of rights of the Ministry of Works and all other records of the Government or wherever it is necessary in respect of the premises situated at 156 and 157 Motijheel Commercial Area, Dhaka. The Government of Bangladesh represented by Ministry of Works is the appellant in Civil Appeal No. 97 of 1997 and Rupali Bank Ltd. is the appellant in Writ Petition No. 98 of 1997.

2. Late Md. Salahuddin, son of late Md. Serajuddin, filed the above Writ Petition No. 2465 of 1992 stating inter alia that after his father late Mr. Md. Serajuddin paid Tk. 1,14,966.00, a dead of lease for 99 years was duly executed and registered on 26 of August, 1960 between late Md. Serajuddin and the Ministry of Works leasing the property situated at 156 and 157, Motijheel Commercial Area, Dhaka, comprising of 18 Kathas of land in his favour and then late Md. Serajuddin, with the permission of the Rajuk, constructed a big multi-storied commercial building thereon; late Md. Serajuddin died on 8.10.1976 leaving behind four sons two daughters and one wife and the said heirs had been possessing some portions of the above multi-storied building and the remaining portion were let out to different tenants; the above heirs of late Md. Serajuddin approached the Ministry of Works on several occasions for mutation of their names in place of their father late Md. Serajuddin and then in reply to their letter dated 28-07-87 requesting for mutating their names, the Ministry of Works by letter dated 2-8-87 directed the said heirs to submit certain papers and documents as mentioned in the above letter dated 2.8.87 for consideration of their request for mutation and then as directed, those papers and documents including the documents of title and all other connected papers were submitted and being satisfied the Ministry of Works by letter dated 13.9.97 asked the aforesaid heirs to deposit a total sum of Tk. 77,876.00, the arrear premium which had fallen due against the above premises; on 11.1.1988 the heirs deposited the entire amount of Tk. 77,876.00 and also submitted the succession certificate dated 16 March, 1977 issued by the District Judge, Dhaka on 16.5.1977; after verification of the records, by report dated 28.01.88, Annexure H to the writ petition, Ministry of Works recommended to the relevant authority for mutation of the names of the heirs of late Md. Serajuddin immediately but the mutation has not yet been completed even though the relevant authority went on giving hope.

3. During the pendency of the above writ petition late Md. Salauddin having died, his heirs were substituted as petitioners in his place and subsequently the remaining heirs of late Md. Serajuddin were also made petitioners in the above writ petition.

4. No affidavit-in-opposition was filed in the above writ petition by the appellants but the learned Assistant Attorney General appeared and made his submission. The High Court Division, after hearing, made the Rule absolute.
Leave was granted in both Civil Appeal Nos. 97 and 98 of 1997 on the following sub-missions:-
"The petitioner Rupali Bank Ltd. has inter alia, stated in the leave petition that it is in fact and law the owner in possession of the disputed property. It appeared and filed a power in the writ petition on 25.8.92 through its Advocate and got a draft affidavit in opposition ready. The original writ petitioner Md. Salauddin died a few days later but there was no service of notice upon the Rubali Bank for substitution of the heirs of the deceased, writ petition had abated and so the affidavit-in-opposition was not filed and the Bank did not follow the case any longer. On receipt of a notice from Mr. Kabir, learned Advocate of the writ petitions on 01-08-96 for payment of all arrear rents etc. the Bank upon enquiry came to know all about the matter.

5. The petitioner Bank has further stated that the disputed premises originally belonged to Md. Serajuddin who transferred his right, title and interest and possession of the same in favour of the Standard Bank Ltd. by a deed of conveyance dated 19.08.65 for a consideration of Tk. 25, 00,000/- The standard Bank got delivery of possession and had been possessing the property to the knowledge of the public in general and the writ petitioners-respondents in particular. The premises after transfer has been duly mutated in the name of its original owner the Standard Bank/Rupali Bank and taxes and rates etc. are being paid in the name of the petitioner Bank. Copies of a number of documents including the sale deed dated 19-08-65 have been annexed to the leave petition in support of the title and possession of the writ petitioner bank.

6. It has been stated that in the circumstances stated above the petitioner Bank could not represent its case in the High Court Division and the Rule was made absolute causing great miscarriage of justice. The impugned judgment and order have been obtained upon practicing fraud on the court.

7. Dr. Rafiqur Rahman, learned counsel for the petitioner Bank, submits that after the transfer by sale of the right, title and interest in the disputed premises by Md. Serajuddin, the owner therefore and the predecessor in interest of the writ petitioners, the prayer for mutation of their name as successors in interest of Md. Serajuddin had no legal basis and that they succeeded in obtaining the impugned judgment and order by practicing the fraud upon the court. He submits further that the writ petition was not ex facie maintainable for the relief sought.

8. The learned Additional Attorney General, appearing for the Government petitioner, submits that the law officer who represented the Government in the High Court Division was not posted with facts. The correct facts have now been brought to the notice on the basis of official records. The learned Additional Attorney General submits that the writ petitioner respondent to are bound by the sale deed of their predecessor in interest late Md. Serajuddin and the said deed having been acted upon the respondents have no legal basis to pray for mutation of their names in respect of the disputed premises. The respondent were required to establish their title to the disputed premises before praying for a direction for mutation of their names and the writ jurisdiction was not the proper forms for deciding the question of title. Mutation could not be ordered without finding title with the writ petitioners and the High Court Division acted beyond its jurisdiction in allowing the prayer of the respondents."

9. Mr. Mahmudul Islam, the learned counsel appearing for the appellant in Civil Appeal No. 98 of 1997, submits that late Md. Serajuddin, the predecessor of the respondents and the lessee of the property in question, on receipt of Tk. 25,00,000/- from Standard Bank transferred the title and possession of the property in question to Standard Bank by a deed of conveyance dated 19.8.1965 executed at Karachi and since then Standard bank possessed the property in question; the appellant bank was constituted under by Bangladesh Banks Nationalization Order, 1972 (P.O. No. 26 of 1972) and in terms of Article 6 of the above Order the undertakings of Standard Bank, Commerce Bank and Australatia Bank situated in the then East Pakistan stood transferred to the appellant bank as shown in column 2 of the schedule of the above Order; in terms of Article 7 of the above Order the undertakings of the Standard Bank also meant all the asset of Standard Bank situated in the then East Pakistan including its property situated at 156-157 Motijheel Commercial Area, Dhaka; the appellant bank including its predecessor Standard Bank had been in possession of the premises since 1965 to the knowledge of the public in general and also late Mr. Sirajuddin and the respondents in particular; the premises in question was duly mutated in the name of Standard Bank/Rupali Bank and Annexes N to Z of the leave petition show that Dhaka Municipal Corporation asked the appellant bank to pay taxes in terms of which municipal taxes were paid and the appellant bank paid rents etc. to Tahsil Office and also paid urban immovable property tax as well as income tax to the Income Tax Authorities; in terms the principle of promissory estoppel the respondents, being the successors-in-interest of late Md. Serajuddin, are bound by the aforesaid deed of conveyance dated 19.08.65 which having been acted upon and the name of Slandered Bank/Rupali Bank having been mutated the respondents had no locus standi to file the writ petition and by suppressing the material facts and practicing fraud upon the Court the respondents got the Rule absolute causing great miscarriage of justice; in terms of section 30(2) of the Registration Act as it stood in the year 1965 the aforesaid deed of conveyance dated 19.8.65 could be registered at any place within the then Pakistan and further in terms of section 28(2) of a Registration Act the validity of the registration of the above deed of conveyance regarding jurisdiction of the Sub-Registrar can not be challenged; since the property in question stood transferred to Standard Bank on 19.8.1965 the claim of the respondents for mutation of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a competent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute.

10. Mr. A.J. Mohammed Ali, the learned Additional Attorney General appearing for the appellant in Civil Appeal No. 97 of 1997, has submitted that since the respondents did not at all approach the Assistant Commissioner (Land) Dhaka or the Additional Deputy Commissioner (Revenue), Dhaka or Commissioner Dhaka Division regarding mutation, the writ petition is not maintainable.

11. Mr. Khondker Mahbubuddin Ahmed, the learned counsel appearing for the respondents in both the appeals, submits that in the present case the original deed of conveyance alleged to have been executed on 19.08.1965 has not yet been produced and merely a copy of the certified copy, obtained as late as in the year 1993 from the Office of the Sub-Registrar, Karachi for the first time, has been annexed with the leave petition as Annexure-L and further their being no explanation as to why the original deed of conveyance could not be filed, such certified copy is not admissible in evidence for non compliance of the relevant provisions of the Evidence Act in this regard and further Annexure-L is merely a deed of agreement; since in District Registration Office Dhaka nothing has been recorded in respect of the deed of conveyance dated 19.8.1965 alleged to have been registered at Karachi and the appellant bank, though supposed to be in possession of premises in terms of the deed of conveyance, did not take any step for mutation of their names after 19.8.1965 and obtained the certified copy of the deed of conveyance only on 4.8.1993 i.e. after issuance of the Rule on 13.7.92, there is something fishy in the above deed of conveyance; the balance money due against the lease having not been deposited before execution of the deed of conveyance dated 19.8.65, the above deed of conveyance is ex facie illegal; the direction given by the Ministry of Works to the respondents to deposit Tk. 77,875/- invariably proves that in the records of right lying with the Ministry of Works late Md. Serajuddin still remained as lessee and a sum of Tk. 77,875/- was due from him as arrears against the aforesaid premises otherwise the Ministry of Works by letter dated 13.9.87 would not have directed the respondents to deposit the balance arrear premium amounting to Tk. 77,875/- and also would not have given the report dated 28.1.88 recommending for mutation and thus the relation between the Government of Bangladesh and late Md. Serajuddin/ respondents as lessor and lessee still continues; acceptance of Tk. 77,875/- against arrear premium amounts to mutation of the names of the respondents in respect of the property in question; even if the respondents as landlord, could not produce any paper showing receipt of rent from the appellant bank since 1972 the same will not establish the ownership of the appellant bank in the above premises; enquiry as to whether the appellant bank acquired title to the premises in question on the basis of alleged deed of conveyance dated 19.8.1965 cannot be done in writ jurisdiction.

12. In reply Mr. Islam submitted that the original deed of conveyance dated 19.8.1965 is lying with the Head Office of the Standard Bank at Karachi, Pakistan and since the same may be required by the above bank in connection with their accounts in respect their undertakings situated in the then East Pakistan, the above Bank retained the original deed; the above deed of conveyance being out and out a sale the respondents can not at all take the plea of non payment of balance premium against the lease as the liability of payment of arrear premium against the lease as the liability of payment of arrear premium, if any, will go with the land on transfer and the authority concerned may always demand from the transferee and in case of default consequence will follow; there was no bar for registration of the aforesaid deed of conveyance dated 19.8.1965 at Karachi and at the relevant time there was no provision to the affect that if a deed of conveyance in respect of any property situated in then East Pakistan is registered outside the territory of the then East Pakistan, copy of the same ought to have been sent to the District Registration Office Dhaka and that noncompliance thereof would render such deed of conveyance void; Ministry of Words issued the letter dated 13.9.87 and the report dated 28.1.1988 on the basis of the papers submitted by the respondents in terms of the letter dated 2.8.87 issued by the Ministry of Works and not on basis of the records lying with it.

13. As it appears leave was granted to consider, amongst others, the submission of the learned counsel of the appellant to the effect that in the writ petition the appellant bank filed power on 25.08.1992 through its advocate and got a draft of affidavit in opposition ready and the original writ petitioner Md. Salahuddin died few days later but there being no substitution of his heirs within time the writ petition had abated and so the affidavit-in-opposition was not filed and the appellant bank also did not follow the case any longer and it is only on receipt of the notice on 1.8.1996 issued by the learned Advocate of the respondents asking for payment of all arrears rent etc the appellant bank, upon inquiry, came to know all about the matter and also the submission that by a deed of conveyance dated 19.08.65, late Md. Serajuddin the previous owner transferred the property in question to Standard Bank at a consideration of Tk. 25,00,000/- and the above bank after getting delivery of possession had been possessing the premises to the knowledge of public in general and the writ petitioners-respondents in particular.

14. As it appears the copy of the certified copy of the above deed of conveyance dated 19.08.1965 has been annexed as Annexure-L to the leave petition and during hearing Mr. Mahmudul Islam produced before us the certified copy and we perused the contents of the same. We are of the view that in terms of the leave granting order we may consider as to whether by the deed of conveyance dated 19.8.1965 the title of the property in question was transferred to Standard Bank; provided the certified copy of the same produced by the appellant bank is otherwise admissible in evidence.

15. In terms of Sub-section 6 of Section 76 of the Evidence Act the above deed of conveyance dated 19.8.1965 may be proved by producing the original, or by a copy thereof certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of Bangladesh Consul or diplomatic agent, that the copy has been duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.

16. As it appears from the contents of Annexure L and the certified copy produced before us, the application for the above certified copy was filed on 13.07.93 and the Sub-Register Central Record, Karachi certified the copy on 4.8.93 and the signature of the Sub-Register Central Record was attested by the Protocol Officer, Ministry of Foreign Affairs, Government of Pakistan Camp Office, Karachi as well as by Mr. Golam Mohammad, First Secretary, Office of the Deputy High Commission for Bangladesh at Karachi. Further section 79 of the Evidence Act provides that the Court shall presume such certified copy as genuine.

17. Regarding registration of the above deed of conveyance dated 19.8.1965 at Karachi, Sub-section 2 of Section 30 of the Registration Act, as it stood on 19.8.65, provided that notwithstanding anything contained in section 28 any Registrar may receive and register any document without regard to the situation in any part of Pakistan of the property to which the document relates if he is satisfied that there is sufficient cause for doing so.

18. Further sub-section (2) of section 28 of the Evidence Act provides that notwithstanding anything contained in sub-section (1) after a document is registered, no party thereto shall be entitled to question the validity of its registration on the ground that the property which purported to give jurisdiction to the Sub-Registrar to register it either did not exist or was fictitious or insignificant or was not intended to be conveyed.

19. Regarding acquisition of the property in question by the appellant bank it papers that Article 6 of P.O. No. 26 of 1972 provides that the undertaking of Standard bank, situated in the then East Pakistan stood transferred to the appellant bank as shown in column (2) of the schedule of the above Order and in terms of Article 7 of the above Order the under taking of the Standard Bank also meant all the assets of the Standard Bank in the then East Pakistan including the property in question situated at 156/157 Motijheel Commercial Aria, Dhaka.

20. The contents of above Annexure L and the certified copy produced before us at the time of hearing shows that by the above deed of conveyance dated 19.8.1965 late Md. Serajuddin, the predecessor in interest of the respondents, transferred the property in question to the Standard Bank on 19.08.65 and it is also not a deed of agreement as submitted by Mr. Ahmed. As stated earlier at the relevant time there was no bar to register the above deed of conveyance at Karachi and by the said deed the title of the premises in question stood transferred to the Standard Bank. It also appears that in terms of the provisions of Articles 6 and 7 of P.O. 26 of 1972, the appellant bank became owner of the property of Standard Bank situated at 156-157 Motijheel Commercial Area Dhaka of the then East Pakistan.

21. We are of the view that the appellant bank had been able to prove the circumstances under which they could not file the affidavit-in-opposition during hearing of the writ petition and as it appears the High Court Division in the absence of the copy of deed of conveyance dated 19.8.1965 made the Rule absolute mainly on the ground that, late Md. Serajuddin got lease of the property in question for 99 years by deed of lease registered on 26.8.1960 and the succession certificate issued by the District Judge, Dhaka in 16.5.77 showed that the respondents were the heirs of Late Md. Serajuddin and accordingly after the death of late Md. Serajuddin the respondents became the owners of the property in question and that Ministry of Works, the respondent No. 12, by report dated 28.1.1987 recommended the relevant authority to accord immediate mutation but even then mutation was illegally withheld and no affidavit-in-opposition was also filed by the Ministry of Works denying the statements made in the writ petition and that the learned Assistant Attorney General, who appeared for the respondent No. 1, found it difficult to oppose the Rule.

22. We are of the view that Annexure L to the leave petition and the certified copy produces before us prima facie shows that late Md. Serajuddin having transferred his title and interest in the property in question to Standard Bank by deed of conveyance date 19.8.1965, the respondents at the time of filing the Writ Petition No. 2465 of 1992 had no title at all to the property in question and so the respondents, without title, was not entitled to pray for a Writ of mandamus for directing the Ministry of Works to mutate their names in the records.

23. Mr. Ahmed by referring to letter dated 13.9.87 and report dated 28.1.88 submitted that those invariably proved that in the records of the Ministry of Works late Md. Sirajuddin, remained as lessee otherwise the letter dated 13.987 directing the respondents to deposit the balance arrears rent amount to Tk. 77,875.00, would not have been issued and the Ministry of Works also would not have issued the report dated 28.1.88 recommending the relevant department to mutate the names of the respondents, whereas Mr. Islam referring to annexures-N to Z of the leave petition submitted that against the property in question the appellant bank paid the municipal taxes, paid rents to Tahsil Office and also paid urban immovable property tax as well as income tax to Income Tax Department and that letter dated 13.8.87 and report dated 28.1.88 was issued on the basis of papers submitted by the respondents and not on the basis of records lying with it. However those have no relevancy in the background of the facts placed on record by the appellant Rupali Bank.

24. In any view of the matter since because of the acceptance of Annexure L to the leave petition as additional evidence it sufficiently appears that late Md. Serajuddin transferred the property in question to Standard Bank on 19.8.1965 and in terms of the provisions of P.O. 26 of 1992 as the appellant bank is also the successor of interest of Standard Bank, we are of the view that the respondents were not legally competent as well as entitled to pray/ seek for a direction upon the Ministry of Works for mutation of their names and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute.
25. Accordingly the appeals are allowed with costs and the judgment and order dated 27.6.1996 passed by the High Court Division in making the Rule absolute and directing mutation of the names of the respondents are set aside.
Ed.

Rupali Bank Ltd. Vs. Tobacco Industries Ltd. and others , 46 DLR (AD) (1994) 190

Case No: Civil Petition for Leave to Appeal No. 200 of 1992

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Shaheed Alam ,,

Citation: 46 DLR (AD) (1994) 190

Case Year: 1994

Appellant: Rupali Bank Ltd.

Respondent: Tobacco Industries Ltd. and others

Subject: Banking,

Delivery Date: 1993-07-20

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Latifur Rahman, J.

Rupali Bank Ltd.
.....................Plaintiff-Petitioner
Vs.
Tobacco Industries Ltd. and others.
.....................Defendant-Respondents

Judgment
July 20th, 1993

Constitution of Bangladesh, 1972
Article 104
This provision should not be resorted to in the case of laches on the part of a financial institution like Bank, which should better take action against its own wrong doers, if any.

Lawyers Involved:
Shaheed Alam, Advocate, Supreme Court, instructed by Md. Sajjadul Huq, Advocate-on -Record - For the Petitioner.
Not represented -For the Respondents.

Civil Petition for Leave to Appeal No. 200 of 1992.

JUDGMENT

Shahabuddin Ahmed, CJ.

1.         Petition Rupali Bank, filed Money Suit No. 94 of 1989, re‑numbered as Money Suit No. 187 of 1991, in the Court of Subordinate Judge-cum- Commercial Court No. 1, Dhaka, against defendant No. 1, a Private Ltd. Company and its directors, defendants Nos. 2-6 for realisation of Taka 89 lac and some odd. But, on an application by the said directors-defendants, their names were struck off by the Subordinate Judge, by an order dated 12 June, 1990, and in their place some other persons, namely opposite parties Nos. 7-11, were impleaded as defendants. This order was sought to be reviewed by the petitioner, but the review petition was dismissed. Thereupon, the petitioner (plaintiff filed a revisional application (Civil Order No. No. 348 of 1992), but it was summarily rejected by the High Court Division, by an order dated 26 January, 1992, on the ground of limitation. Petitioner is now seeking leave to appeal from this order.

2.         Mr. Shaheed Alam, learned Advocate for the Petitioner, has submitted that exclusion of the Directors who had given guarantee "both collectively and severally" for the Bank's loan, seriously prejudiced the petitioner-bank's Suit and that to do "complete Justice" to the petitioner, leave may be granted for considering the glare impropriety of the trial Court's order striking off the names of the defendants guarantors. The High Court Division found that the order dated 12 June, 1990, striking these defendant's names was passed in presence of the petitioner's lawyer, but no action was taken within 10 months after which the review Petition was filed and further that in the review petition, the petitioner did not give any explanation for the delay in seeking the remedy. The learned Advocate has pointed out that it is the defendants-directors who had given surety, but their names were struck off merely on their application that they had sold away their interests to other persons, namely opposite parties Nos. 7-11; no paper was also shown for the alleged transfer. It was further found that the transferees, namely opposite parties Nos. 7-11, had given no surety to the Bank, and as such, the suit against them will be useless, learned advocate has argued.

3.         There is, of course, some substance in the argument that the order of the trial Court striking off the names of the defendants-guarantors is improper, but it was passed in presence of the Bank's representative; no action was taken in time to seek remedy from the superior Court within die period of about ten months. It appears that the impugned order of trial Court was obtained and the application for correction of the order was delayed, at the connivance of the Bank’s officials concerned. The High Court Division, therefore, did not do any wrong in rejecting the application for revision on the ground of limitation.

4.         As to the prayer for complete justice under Article 104 of the Constitution, this provision should not be resorted to in the case of laches on the part of a financial institution like the petitioner bank, which should better take action against its own wrong doers, if any.

5.         The Petition is dismissed.

Ed.

Rupali Bank Vs. Md. Komoruddin @ Kamar & others, 2 LNJ (2013) 232

Case No: First Appeal No. 747 of 1991

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Citation: 2 LNJ (2013) 232

Case Year: 2013

Appellant: Rupali Bank

Respondent: Md. Komoruddin @ Kamar & others

Subject: Artha Rin,

Delivery Date: 2010-10-13

HIGH COURT DIVISION
(Civil Appellate Jurisdiction)

Sheikh Abdul Awal, J.
And
M. Moazzam Husain, J.

Judgment
13.10.2010

Rupali Bank.

..Plaintiff-appellants.

-Versus-

Md. Komoruddin alias Kamar and another.

...Defendant-respondents.

Artha Rin Adalat Ain (VIII of 2003)
Section 2 (Ga)
The High Court Division became surprised noticing that how a Subordinate Judge dealt with some irrelevant facts on the basis of un-corroborative oral evidence of Dw.1 giving a go by to the admitted documentary evidence namely, original deed of mortgage property , loan sanction letter, mortgage deed and power of attorney. In fact, there is nothing on record to suggest that the defendant No.1 in the facts and circumstances of the case made a scapegoat or he did not receive any loan amount from the bank. The reasons given by the trial court for passing the decree in favour of the defendant No.1 are not sustainable either in law or on facts. The impugned judgment and decree of the Artha Rin Adalat insofar as it relates to defedant No.1 is set aside and the suit is decreed. . . .(17 and 19)

Mr. Md. Golam Mostafa, Advocate

…For the appellant.

No one appears.

....For the respondents.

First Appeal No. 747 of 1991

JUDGMENT

Sheikh Abdul Awal, J:

This appeal is directed against the judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) passed by the Subordinate Judge, and Artha Rin Adalat, Mymensingh in Mortgage Suit No.94 of 1990 decreeing the suit against the defendant No.2 while dismissing the same against the defendant No.1.

Material facts of the case as necessary for the disposal of the appeal are that the sole appellant-Rupali Bank Ltd. as plaintiff instituted a suit being Mortgage Suit No.75 of 1989 in the Court of Sub-Judge, 1^st Court, Mymensingh which was re-numbered on transfer as Mortgage Suit No.94 of 1990. The suit was for realisation of loan amounting to Tk. 92,059/- with interest as stood on 7.6.1989 given by the plaintiff-appellant-Bank to the defendants namely, defendant No.1 Md. Komoruddin alias Kamar and defendant No.2 Sree Narayan Chandra Basak for business in which the defendant No.1 Md. Komoruddin alias Kamar mortgaged his property in favour of the plaintiff bank to secure the loan facility; that the defendants as per terms and conditions of loan sanction letter failed to reimburse the loan money in due time inspite of several letters issued by the plaintiff bank and hence the suit.

The defendant No. 1 appeared in the suit and filed written statement denying all the material allegations of the plaint contending, inter-alia, that the Manager of the Bank inclusion with defendant No.2 created a joint account in the name of defendant No.1 and defendant No.2 and the defendant No.1 never received or withdrawn any money from the said account.

In the course of trial upon considering the pleadings of the parties the trail judge framed the following issues:-

Whether the suit is maintainable in its present form?
Whether the suit is barred by law?
Whether the plaintiff is entitled to get a decree as prayed for?
Whether the plaintiff-Bank is entitled to get any other relief?

At the trial the plaintiff-Bank examined in all 3 PWs. and the defendants also examined 3 witnesses namely DW-1, DW-2, DW-3 and both the parties exhibited a series of documents in support of their respective cases.

The learned judge of the trial Court below on consideration of the materials on record by his judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) decreed the mortgage suit against defendant No.2 and dismissed the same against the defendant No.1 (Mortgagor).

Being aggrieved by the aforesaid judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) the plaintiff-Bank as appellant filed the instant First Appeal before this Court.

Mr. Md. Golam Mostafa, the learned Advocate appearing for the plaintiff-appellant submits that the learned trial Judge under misconception of law and facts most illegally by the impugned judgment and decree dated 16.5.1991 decreeing the suit against the defendant No.2 while dismissing the suit against the defendant No.1, who admittedly mortgaged his property as security of the loan facility to the plaintiff-Bank. The learned Advocate next in the course of his argument has taken us through the impugned judgment and decree, loan sanction letter (Ext.7), written statement of defendant No.1 and deposition the of PWs. and DWs. and then submits that the impugned judgment so far it relates to dismissing the suit against the defendant No.1 is perverse being contrary to law as well as the material evidences on record.

Referring to the concluding portion of the written statement of defendant No.1, Mr. Mostafa, the learned Advocate points out that admittedly the defendant-respondent mortgaged his property in favour of the Bank to secure the loan facility and as such the trial Court below ought to have decreed the suit against the defendant respondent No.1 Md. Komoruddin alias Kamar along with defendant No. 2. Mr. Mostafa, finally submits that from a reading of the impugned judgment, it is apparent that the learned trial Judge in order to dismiss the suit so far it relates to the defendant No.1 mechanically dealt with some irrelevant facts and as such the impugned judgment and decree so far it relates to defendant-respondent No.1 is liable to be set-aside. The learned Advocate to fortify his argument has relied on the decision reported in 43 DLR-439.

No one appears on behalf of the respondents.

We have heard the leaned Advocate and perused the impugned judgment, deposition of witnesses, exhibits and other materials on record. It appears that both the defendant-respondents failed to reimburse the loan inspite of several letters issued by the appellant-Bank and thereupon, the plaintiff-Bank filed the suit for realisation of Tk. 92,059/- with interest as stood on 7.6.1989. It also appears that the trial Court below on consideration of the materials on record by the impugned judgment and decree dated 16.5.1991 decreeing the suit against the defendant No.2 while dismissing the suit against the defendant No.1 stating that: ১নং বিবাদীর সরলতা ও মুর্খতার সুযোগে তৎকালিন ম্যানেজার ঋণ মঞ্জুর হয় নাই বলিয়া তাহাকে বলে অথচ ২ নং বিবাদী টাকা উঠাইয়া নেয়। এই অবসহায় ১ নং বিবাদী ঋণের কোন টাকা না নেওয়ায় তাহার বিরুদ্ধে অত্র মোকদ্দমার ডিক্রী প্রদান করিলে ন্যায় বিচারের পরিপন্থী হইবে বলিয়া আমি মনে করি। ২ নং বিবাদী কোন সম্পত্তি ব্যাংকের নিকট বন্দক না রাখায় তাহার বিরুদ্ধে বাদী-ব্যাংক দাবীকৃত টাকার জন্য ব্যক্তিগত ডিক্রী পাইতে পারে।

Now, let us see how far the learned trial Judge was justified in dismissing the suit against the defendant-respondent No.1 Md. Komoruddin alias Kamar. The plaintiff-appellant-Bank in order to prove its case examined 3 witnesses and also exhibited a series of documents. PWs. namely, PW-1 and PW-2 in their respective testimony categori-cally stated that the defendant-1 mortgaged his property in favour of the plaintiff-Bank to secure the loan facility and both the defendants took loan money through their joint account No. 1540. It is found from the loan sanction letter (Ext.7) that both the defendants in agreeing with the terms and conditions of loan sanction letter put their signature in loan sanction letter (Ext.7) in presence of witnesses.

Mr. Mostafa, the learned Advocate for the appellant upon referring to the concluding portion of the written statement filed by the defendant No.1 Md. Komoruddin alias Kamar wherein, it has been stated as follows: “বাদীর মোকদ্দমা আদালতের ন্যায় বিচারে আদৌ ডিক্রী হইবে বিবেচিত হইলে যাবতীয় সুদ ও খরচাদি মওকুফ করিয়া এই বিবাদীকে শুধু মাত্র আসল ২৮,৫৬০/০০ টাকা ১০ টি মাসিক কিসিত্মতে পরিশোধ করার বিহিতাদেশ দিতে মর্জি হয়। submits that from the aforesaid pleadings of the defendant No.1, it is clear that the defendant-respondent No.1 by mortgaging his property as security to the plaintiff-Bank took loan along with defendant-respondent No.2.

From a reading of the above quoted written objection of the defendant No.1, we find considerable merit in the aforesaid sub-mission of Mr. Mostafa, the learned Advocate for the appellant-Bank.

On perusal of the impugned judgment together with the deposition of PWs. and DWs. and other tangible materials on record, we do not find any possible reason to hold that the defendant-respondent No.1 is made a scapegoat in the facts and circumstances of the case. Rather, it seems to us that the defendant-respondent No.1 mortgaged his property as security of loan facility as well as took loon along with defendant No. 2 and thereafter, deliberately on various pretext denied the same.

In the facts and circumstances of the case the grievance of Mr. Mostafa, the learned Advocate for the appellant that the learned trial Judge in order to dismiss the suit against the defendant No.1 dealt with some irrelevant facts does not appear to be without any substance. The trial Court dismissed the suit so far it relates to defendant No. 1 on the observation that “ ১নং বিবাদীর সরলতা ও মুর্খতায় সুযোগে তৎকালিন ম্যানেজার ঋণ মনজ্ঞুর হয় নাই বলিয়া তাহাকে বলে অথচ ২নং বিবাদী টাকা উঠাইয়া নেয়। এই অবসহায় ১নং বিবাদী ঋনের কোন টাকা না নেওয়ায় তাহার বিরুদ্ধে অত্র মোকদদমার ডিক্রি প্রদান করিলে ন্যায় বিচারের পরিপমহী হইবে বলিয়া আমি মনে করি। ২নং বিবাদী কোন সম্পত্তি ব্যাংকের নিকট বন্ধক না রাখায় তাহার বিরুদ্ধে বাদী ব্যাংক দাবীকৃত টাকার জন্য ব্যক্তিগত ডিক্রী পাইতে পারে। ” This finding of the trial court is, in fact, contrary to the material evidence on record.

On an analysis of the impugned judgment and decree dated 16.5.1991 our view is that the reasons given by the trial Court below for passing the decree in favour of the defendant respondent No. 1 are not sustainable either in law or on facts. In this appeal, we are surprised to notice how a Subordinate Judge dealt with some irrelevant facts on the basis of un-corroborative oral evidence of DW-1 giving a go by to the admitted documentary evidence namely, original deed of mortgaged property (Ext.6), loan sanction letter (Ext.7), mortgage deed (Ext.8) and power of attorney (Ext.9). In fact, there is nothing on record to suggest that the defendant-respondent in the facts and circumstance of the case made a scapegoat or he did not receive any loan amount from the appellant-bank.

For the reasons stated above the impu-gned judgment and decree of the Subordinate Judge and Artha Rin Adalat, Mymensingh does not deserve to be sustained.

In the result, the appeal is allowed. The impugned judgment and decree dated 16.5.1991 (decree signed on 26.5.1991) passed by the learned Subordinate Judge and Artha Rin Adalat, Mymensingh in Mortgage Suit No. 94 of 1990 so far it relates to defendant-respondent No.1 is set-aside and accordingly, the suit is hereby decreed against both the defendant-respondents.

Let a copy of this judgment along with lower Court’s record be sent down at once.

Ed.

Rupe Jahan Begum and others Vs. Lutfe Ali Chowdhury and others, 49 DLR (AD) (1997) 73

Case No: Civil Appeal No. 65 of 1993

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Md. Moksudur Rahman,MR. SR Pal,,

Citation: 49 DLR (AD) (1997) 73

Case Year: 1997

Appellant: Rupe Jahan Begum and others

Respondent: Lutfe Ali Chowdhury and others

Subject: Revisional Jurisdiction, Procedural Law,

Delivery Date: 1996-08-21

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Rupe Jahan Begum and others
..……………….. Appellants
Vs
Lutfe Ali Chowdhury and others
………………… Respondents

Judgment
August 21, 1996

Code of Civil Procedure (V of 1908)
Section 115
The finding that the transactions in respect of the suit lands were not benami being essentially a finding of fact is immune from revision unless it is shown that the finding based on gross misreading of evidence or non-consideration of material evidence or it has been founded on misconception of law occasioning failure of justice.….. (15)

Cases Referred to-
Gopeekrist Gossain vs. Oungapershad Gossain (1854) 6 MIA 53; Nurjahan Begum vs. Mahmudur Rahman 34 DLR (AD) 61; Bilas Kunwar vs. Desraj Ranjit Singh (1915) LR 42 IA 202;Imambandi Begum vs. Kumleshwari Pershad (1886) LR13 IA 160; Ram Narain vs. Mohammad Hadi (1898) LR 26 IA 38; Jaydayal Poddar vs. Bibi Hazra (1974) 2 SCR 90; Mohammad Sadeq Ali Khan vs. Fakhr Jahan Begum (1932) 59 IA (PC) 1.

Lawyers Involved:
SR Pal, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record — For the Appellants.
Moksudur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 1.
Not represented— Respondent Nos. 2-7.

Civil Appeal No. 65 of 1993.
(From the judgment and order dated 18 April 1993 passed by the High Court Division, Dhaka in Civil Revision No. 89 of 1987 (Chittagong) and 1894 of 1991 (Dhaka).

JUDGMENT

Bimalendu Bikash Roy Chowdhury J:

This appeal by the defendants, following leave, is directed against the judgment and order dated 18 April 1993 passed by a learned Single Judge of the High Court Division in Civil Revision Nos. 89 of 1987 (Chittagong) and 1894 of 1991 (Dhaka) making the Rule absolute and sending the suit back to the trial Court for disposal in accordance with law and in the light of observations made in the judgment.

2. The decision of this appeal turns upon the question whether the High Court Division, in exercise of its powers under section 115 of the Code of Civil Procedure, acted beyond its jurisdiction, in setting aside the concurrent findings of the first two courts below and sending back the case on remand.

3. The facts are brief. One Ali Akbar Chowdhury instituted Other Suit No. 10 of 1982 in the Third Court of Munsif, Chittagong for declaration that defendant No. 1, his eldest daughter was his benamder in respect of the suit lands described in schedules 1-5 to the plaint and he was the ostensible owner of the same. A further declaration was sought to the effect that the registered Heba-bil-Ewaj executed by defendant No. 1 in favour of her husband, defendant No. 2, was void and not binding upon him.

4. The case of the plaintiff set out in his plaint was that defendant No. 1 was very affectionate to him. He purchased schedule 1 land in her name by means of a Kabala dated 9 July 1952 on payment of the entire consideration. Similarly, he purchased schedules 2-5 lands from different persons by the kabalas dated 10 September 1956, 5 November 1956 and 9 September 1957 with his own money. He took delivery of all the original kabalas from the Sub registry and kept them in his custody. Since the said purchases the plaintiff had been in possession of the suit lands on payment of rents. But his daughter, defendant No. 1, who was issueless had executed a collusive deed of Heba-bil-Ewaj in favour of her husband defendant No. 2 on 8 September 1974 and her husband in his turn created certain agreements for sale in favour of one Faruk Ahmed Chowdhury and his wife and children, (added-defendant Nos. 4-9) who had brought suits for specific performance of contract. In those Suits some of the lands of the plaintiffs were included. The plaintiff got himself impleaded in those suits and demanded a deed of relinquishment from his daughter which having been refused he was obliged to bring the suit.

5. The suit was contested by defendant Nos. 1 and 2 as well as defendant Nos. 4-9 upon similar written statements. Their case, in short, was that the suit lands were acquired by defendant No. 1 with her own fund and in her own interest. She possessed the suit land through Bargadar and paid rents from her own income. She also submitted statement of property including the suit land under President’s Order No. 98 of 1972 showing the said land as her own. The deed of Heba-bil-Ewaj in favour of defendant No. 2 was genuine and acted upon. While in possession on the basis of the said deed defendant No. 2 entered into three separate agreements for sale in respect of 3.38 acres of the land in suit with defendant Nos. 4-9 and delivered possession there of in their favour in part performance of the contracts. Since then defendants No. 4-9 had been in possession of the said lands. They instituted the above mentioned suits for specific performance of the contracts for failure of defendant No. 2 to execute and register the kabalas in time.

6. The learned Munsif disbelieved the plaintiff’s claim and dismissed the suit finding that the plaintiff failed to establish that the purchases in respect of the Suit lands were benami and that he had possession therein. He further found that without a prayer for khas possession the suit was barred under section 42 of the Specific Relief Act. In arriving at his decision the learned Munsif considered the material evidence on record keeping in view the principles governing the determination of the question whether a transfer is a benami transaction or not.

7. The plaintiff then took an appeal being Other Appeal No. 89 of 1987 therefrom. The appellate Court upheld the decision of the trial Cowl concurring with the material findings of the said court.

8. Aggrieved plaintiff preferred Civil Revision No. 89 of 1987 (Chittagong) and 1984 of 1991 (Dhaka) to the High Court Division. But on his death during the pendency of the case present respondent Nos. 1-6 were brought on record by way of substitution.

9. After a hearing a learned Single Judge of the High Court Division sent the case on remand after setting aside the concurrent findings of the courts below by the judgment impugned before us.

10. Appearing for the defendant- appellants Mr. SR Pal, learned Counsel submits that the High Court Division travelled beyond us jurisdiction under section 115 of the Code of Civil Procedure in reversing the concurrent findings of the first two courts below which were based on cogent evidence.

11. In reply Mr. Moksudur Rahman, learned Counsel for the plaintiff-respondents, argues that the judgment of the appellate Court suffers from misreading and non-reading of evidence. He further argues that the lower appellate Court failed to appreciate the evidence in its true perspective. He therefore contends that the High Court Division committed no illegality in reversing the decision and sending back the case for fresh disposal.

12. The submissions of the learned Counsel for both the parties necessitate close scrutiny of the impugned judgment in order to ascertain if the said judgment suffered from any error of law and/or misreading of evidence as would call for interference by the High Court Division in its revisional jurisdiction under section 115 of the Code of Civil Procedure.

13. The main question that came up for consideration in the suit was about the title of the suit lands. The plaintiff claimed that he purchased the same in the name of his eldest daughter, defendant No. 1 which was, of course, denied from the side of the defendants. It is admitted on all hands that the concerned kabalas stand in the name of defendant No. 1. Both the trial Court and the appellate Court were therefore called upon to determine whether the transactions were benami or not. The law of benami transaction has long been settled. The Judicial Committee of the Privy Council in Gopeekrist Gossain vs. Gungapershad Gossain (1854) 6 MM 53 was probably the first authority on the subject. Since then the superior courts f this sub-continent more or less followed the principles enunciated in the said case and certain other cases decided by the Privy Council. This court in the case of Nurjahan Begum vs. Mahmudur Rahman 34 DLR (AD) 61 traced the history of benami transaction and also the law propounded by the Privy Council for the following conclusions:

In a benami transaction source of purchase money is an important criteria (sic) but it is not conclusive. The initial presumption in the case of a transfer concluded by a registered deed is in favour of the person whose name appears as the transferee in the deed, but this presumption is rebuttable. Source of consideration money though an important criteria in a benami transaction but in the absence of an unambiguous ownership consideration of other relevant circumstances become important in a case where ownership is disputed. The disputed question of benami cannot be determined only on the consideration of source of consideration money, and it becomes incumbent for the Court to fall back upon the surrounding circumstances of the transaction, the position of the parties and the relationship to each other. The motive which could govern their actions, but their subsequent conduct including their dealings and the enjoyment of the property become relevant factors for consideration. In the case of Bilas Kunwar vs. Desraj Ranjit Singh (1915) LR 42 IA 202 the Privy Council while adopting the principle an laid down is Gopeekrist Gossain’s case, that the criterion in benami cases is the source of money with which the consideration was paid, made an important qualification, in that the source of purchase money is only to be the criterion in the absence of all other relevant circumstances, Among other circumstances possession of the property has been held to be very important. Privy Council in Imambandi Begum vs. Kumleshwari Pershad (1886) LR 13 IA 160 held as under:

“Where there are benami transactions and the question is who is the real owner, the actual possession or receipt of rents of the property is most important.”

In the case of Ram Narain vs. Mohaminad Hadi (1898) LR 26 IA 38 the Privy Council laid stress on the factum of possession of the property and the collection of rents. Incidentally, it may be mentioned that in a disputed case of benami, custody of the documents is a relevant factor to be considered.”

14. The Supreme Court of India in Jaydayal Poddar vs. Bibi Hazra (1974) 2 5CR 90 had summed up the principles governing determination of benami transaction to which we have respectful approval, in the following words:

“It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on tine person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances; (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour, (4) the position of the parties and the relationship, if any between, the claimant and the alleged benamder, (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.”

15. It appears that the lower appellate Court dealt at length upon the evidence and circumstance of the case in the light of the aforesaid principles upon which the benami nature of a transaction is determined and concurred with the material findings of the trial Court. In coming to its conclusion the appellate Court relied on the following circumstances. The motive of acquisition of the Suit lands by the plaintiff in the benami of defendant No. 1 had not been substantiated. It was against the normal human conduct that the father would buy land in the name of his daughter even after her marriage: The plaintiff failed to lead any reliable evidence to prove that he paid the consideration money for the transactions in question. On the other hand, it was borne out from the evidence of the plaintiff that the husband of defendant No. 1 had been solvent since before the marriage of defendant No. 1 with him and that the plaintiff presented golden ornaments to his daughter. The recitals in the different kabalas in favour of defendant No. 1 clearly showed that the consideration for the same had been paid by the karjyakarak of defendant No. 1. Although the original Kabala documents came from the custody of the plaintiff the defendants offered sufficient explanation that defendant No. 1 brought the documents to her father’s house for the purpose of payment of rent but due to her illness she forgot to take them back with her, and further produced all other documents namely, khatians and rent receipts showing payment of rents by defendant No. 1 through her karjyakarak. The plaintiff was not in possession of the disputed lands. Rather the defendants had been in possession thereof. Ext. B series showed that defendant No. 2 submitted a statement under President’s Order No. 98 of 1972 on behalf of defendant No. 1 in respect of the suit lands claiming the same to be her own while the plaintiff did not. Had the plaintiff been the real owner of the suit lands he would have certainly filed such a statement and this aspect spoke a volume against the plaintiff’s claim of ownership of the disputed lands. The plaintiff himself gave out that schedule 1 land was purchased by him in the name of defendant No. 1 out of his love and affection for her which indicated that the purchase was for the benefit of defendant No. 1. The finding that the transactions in respect of the suit lands were not benami being essentially a finding of fact is immune from revision unless it is shown that the finding is based on gross misreading of evidence or on non consideration of material evidence or it has been founded on misconception of law occasioning failure of justice. The learned Judge of the High Court Division did not at all refer to any particular evidence when he made some sundry observations that the courts below failed to appreciate the evidence in its true perspective and also misread certain evidence before passing his verdict. The learned Counsel for the respondents could not also point out that there was any misreading or non-reading of evidence either by the appellate Court or the trial Court that deserved interference from the revisional court.

16. Mr. Moksudur Rahman has however attempted to submit that the Kabala in respect of schedule 1 land having been admittedly executed before the marriage of defendant No. 1 when she had no money to pay for the transaction the purchase could not but be a benami one. Mr. Pal, on the other hand, pointed out that according to the plaintiff schedule I land was purchased in the name of defendant No. 1 out of his love and affection for her which was sufficiently indicative that the purchase of the said land was for the benefit of defendant No. 1. But the High Court Division failed to notice the same.

17. In the case of Mohammad Sadiq Ali Khan vs. Fakhr Jahan Begum (1932) 59 IA (PC) 1 a Mohammedan purchased an immovable property taking the conveyance in the name of his daughter who was five years of age. Upon her marriage, the deed was sent for the inspection of her father-in-law. After the death of the donor it was contended that the property was part of his estate, the purchase being benami, the Judicial Committee of the Privy Council held that there was a valid gift to the daughter because there was proof of a bona fide intention to give, and that intention was established. In course of the judgment their Lordships observed:

“The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife and though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale. The sending of the deed for the inspection of the lady’s father-in-law, which the Chief Court held to be established, was clearly a representation that the property was hers, and their Lordships agree with the learned Judges in the conclusion to which they came.”

18. As already noticed there is enough in the facts of the case to negative any inference that the transaction was benami even it be assumed that the purchase money proceeded from the father. The learned Single Judge of the High Court Division lost sight of this aspect of the case.

19. It is the further submission of the learned Counsel for the appellants that the first two courts below concurrently found that the plaintiff had no possession in the suit lands and that without a prayer for recovery of khas possession the suit as framed was not maintainable, but the learned Judge of the High Court Division did not reverse the said findings and thus committed an error of law in passing his judgment. The learned Counsel for the respondents finds it difficult to repel the contention. We find substance in the contention of the learned Counsel for the appellants.

20. For the reasons stated herein-above we are of the opinion that the learned Single Judge of the High Court Division acted beyond his jurisdiction under section 115 of the Code of Civil Procedure in setting aside the concurrent findings of fact and sending back the case on remand to the trial Court.

In the result, this appeal is allowed with costs and the impugned judgment and order of the High Court Division stand set aside.

Ed.

Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others, 1 LNJ (2012) 386

Case No: Civil Revision No. 2448 of 2006

Judge: Farid Ahmed,

Court: High Court Division,,

Advocate: Mr. Ajmalul Hossain QC,Mr. Abdul Quayum,,

Citation: 1 LNJ (2012) 386

Case Year: 2012

Appellant: Rupsha Fish and Allied Industries Ltd.

Respondent: The Premier Bank Limited and others

Subject: Ex-parte Decree,

Delivery Date: 2009-08-17

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

Mr. Farid Ahmed, J.
and
Mr. Obaidul Hassan, J.

Judgment
17.08.2009

Rupsha Fish and Allied Industries Ltd.

...Petitioner

Vs.

The Premier Bank Limited and others

...Opposite Party.

Code of Civil Procedure (V of 1908)
Order VIII, rule 10
Order IX, rule 13
Order XLIII, Rule 1(b)
After rejecting the defendant’s application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted.

The ex-parte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit. …(16)

On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under: “ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” …(17)

The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held: ..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”..... .....(20)

Code of Civil Procedure (V of 1908)
Order VIII, rule 10
Order IX, rule 13
Order XLIII, Rule 1(b)
From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex-parte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellany-eous case as being not entertainable. ...(26)

Damodar Das Vs. Raj Kumar Das , AIR 1922 (Patna) 485; Bothra and others Vs. Kedar Nath Bothra and others, A.I.R. 1938 (Calcutta) 74; Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another, 39 DLR 223; Narendra Patra Vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa 45; Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad, AIR 1991 Andhra Pradesh 69; N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd., AIR 1981 Madras 258; M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore, AIR 1985 (Kant) 77; M.S. Manick Peter and others Vs. K. Surendra Nathan, AIR 1988 Kerala 161; Most. Hakumat Bibi Vs. Imam Din and others, PLD 1987 (S.C.)-22 ref.

Mr. Abdul Quayum with
Mr. Probir Halder and
Mr. Swarup Kanti Deb

....For the Petitioner .

Mr. Ajmalul Hossain QC with
Mr. A.B.M. Siddiqur Rahman Khan and
Mr. Affan Ahmed Siddiq

....For the Opposite Parties.

Civil Revision No. 2448 of 2006.

Judgment

Farid Ahmed, J:

        This rule was issued calling upon the opposite parties to show cause as to why the impugned order No. 20 dated 3.7.2006 passed by the learned Joint District Judge, 1^st Court, Khulna in entertain-ning the Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

2.     The petitioner on 1.8.2005 instituted Money Suit No. 6 of 2005 before the 1^st Court of Joint District Judge, Khulna agaisnt the opposite parties for a decree for Tk. 53,97,3,000/- as compensation for damage and for mandatory injunction directing the defendant-opposite parties to handover key of chamber of the factory and to restrain them from interfering to the running of the business of the plaintiff-petitioner namely ‘Rupsha Fish and Allied Industries’.

3.     The learned court by order dated 11.9.2005 fixed up 18.10.2005 for filing written statements and thereafter consecutively on 4 dates the defendant-opposite parties failed to file written statements. The learned Joint District Judge by order No. 12 dated 22.1.2006 as last chance allowed time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, for exparte hearing and decision. On 6.2.2006 the defendants appointed a new lawyer and again filed an application for 15 days adjournment to file written statements. The Court rejected the prayer for adjournment and took up the case for exparte hearing and decreed the suit exparte.

4.     Against the said exparte decree the defendant opposite parties have filed a case being Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 of the Code of Civil Procedure stating that defendant-opposite parties could not prepare the written statements as the Head Office of the Bank did not supply the necessary facts and documents in support of their case and that they engaged a new Advocate but he could not prepare the written statements and as such prayed for time, the learned Court rejected the prayer for time and passed the exparte decree. In the miscellaneous case the petitioner filed an application stating that the impugned exparte order was passed under Order 8 Rule 10 of the code of Civil Procedure which is appealable, so, the miscellaneous petition under Order 9 Rule 13 of the Code of Civil Procedure is not maintainable.

5.     The learned Joint District Judge by order No. 20 dated 3.7.2006 rejected the application for rejection of the miscellaneous case on the finding that in order to avoid delay and for expeditious disposal of the case the provision of   Rule 13 (A) of Order 9 has been inserted in the Code of Civil Procedure.

6.     Being aggrieved thereby, the petitioner moved this court and obtained the present Rule.

7.     The defendant-opposite parties have filed a counter affidavit controverting the statements made in the revisional application and stated that in their miscellaneous case they stated that for bonafide reason they failed to file written statements within the time granted by the Court and that as per provision of Rule 13A of Order 9 of the Civil Procedure Code, to ensure the expeditious hearing of the case the learned court rejected the petitioner’s application for rejection of the miscellaneous case and that the said miscellaneous case is maintainable.

8.     Mr. Abdul Quayum with Mr. Probir Halder, learned Advocates appearing on behalf of petitioner-company have submitted that the exparte order was passed as per provision of Order 8 Rule 10 which is appealable under Order 43 Rule 1(b) of the Code of Civil Procedure and as such the miscellaneous case is not maintainable. Mr. Probir Halder thereafter has submitted that petitioner took specific ground that an appeal lies against the order passed under Order 8 Rule 10 of the Code of Civil Procedure and the learned Judge quoted the submission of the petitioner in his judgment but without considering the said provision of law illegally rejected the petitioner’s application for rejection of the miscellaneous case.

9.     Mr. Ajmalul Hossain, learned Senior Counsel appearing with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Mamun Chowdhury learned Advocates have submitted that the order passed by the Joint District Judge in the money suit is an exparte decree within the meaning of Order 9 Rule 6 of the C.P.C and as such an application under Order 9 Rule 13 of the C.P.C is attracted. Mr. Ajmalul Hossain thereafter has submitted that the judgment passed in the money suit deemed to be a decree under Order 17 Rule 2 of the C.P.C and the remedy lies under Order 9 Rule 13 of the C.P.C. He further has submitted that 1^st part of the Order 9 Rule 13 of the C.P.C defines that in case of every exparte decree an application under Order 9 Rule 13 is maintainable and the present miscellaneous case being an application against the exparte decree under the 2^nd limb of the Order 8 Rule 10 the proper forum is an application under Order 9 Rule 13 of the C.P.C. He lastly has submitted that the exparte judgment passed in the Money suit being not a judgment within the meaning of Section 2 (9) and Order 20 Rule 4 of the C.P.C the application under Order 9 Rule 13 is entertainable.

10.    Certified copy of the entire order sheet of the Money Suit No. 6 of 2005 have been annexed with the revisional application as Annexure-B. From order No. 12 dated 22.1.2006 it appears that previously on 4 occasions adjournment were allowed for filing written statements but the defendant did not file any written statements. The Court by that order again granted adjournment for the last time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, fixed for exparte disposal and decision of the case. The defendants without filing any written statements and without depositing the cost money filed an application for time to file written statements. This application was filed by a new lawyer who stated that the previous lawyer of the defendants retired from the case. The defendants then and there deposited the cost amount and made a prayer for adjournment. The learned Court rejected the said prayer and took up the case for exparte hearing and disposed of the case by an exparte judgment.

11.    The learned Advocate for the opposite party has submitted that the exparte decree was passed in absence of the learned Advocate and that the learned court debarred him from appearing in the case. So, the miscellaneous case under order 9 Rule 13 of the C.P.C is maintainable . In support of his submission he referred three decisions.

12.    In the case of Damodar Das Vs. Raj Kumar Das reported in AIR 1922 (Patna) 485 the suit was decreed exparte on 20.9.1919. The defendant applied Under Order 9 Rule 13 of the C.P.C to have the decree set aside. The High Court found that the trial took place on the 11^th, 12^th and 13^th August, 1919 and on the 11^th the defendants pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day stating that he had no instruction from his client to cross-examine the plaintiff whose evidence had been taken on the 11^th . His application was again refused.

13.    In the case of Bothra and others Vs. Kedar Nath Bothra and others reported in A.I.R. 1938 (Calcutta) 74 the plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed. The court rejected the application. Thereupon Counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. It has been held that if the plaintiff’s counsel confines himself to asking for an adjournment and when it is refused, retires from the case and states that he has no further instruction in that case it cannot be said that in presence   of the plaintiff decree was passed.

14.    In the case of Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another reported in 39 DLR 223 their Lordships held :

........... “It is apparent that after rejection of the prayer for adjournment when the suit was called on for hearing the plaintiff did not appear within the meaning of Order 9 Rule 8 read with Order 17 Rule 2 of the C.P.C and the learned Subordinate Judge dismissed the suit for default”........

15.    In all the aforesaid cases there was an application for adjournment which was rejected by the court. The learned Advocate thereafter withdrew him from the suit and intimated the court that he has no further instruction from his client . So, it was held that the suit was disposed of in absence of the Advocate and miscellaneous case under order 9 Rule 13 were entertained.

16.    The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit.

17.    On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under:

“ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”

18. So, the order passed by the Court clearly comes within the perview of Order 8 Rule 10 of the C.P.C. An order passed under Order 8 Rule 10 of the C.P.C. is an appealable order under the provision of Order 43 Rule 1(b) of the C.P.C. The provision of Order 43 Rule 1(b) of the C.P.C reads as under :

“ 1. An appeal shall lie from the following orders under the provisions of section 104, namely:-
(a) ..............................
(b). an order under Rule 10 of Order 8 pronouncing judgment against a party.”

19. According to learned Advocate for the opposite party the impugned judgment having been passed under the provision of Order 17 Rule 2 of the Code of Civil Procedure the application under Order 9 Rule 13 is maintainable and that the exparte judgment passed in money suit can be considered as an order under the second limb of Rule 10 of Order 8 of the Code of Civil Procedure. In case of failure to file written statement the court can take two courses: (1) pass an exparte judgment and (2) can make such order in relation to the suit as it thinks fit. In support of his submission he relied on the cases of Narendra Patra Vs. Shiba Narayan Taldi and another reported in A.I.R. 1995 Orissa 45, Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad reported in AIR 1991 Andhra Pradesh 69, N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd. reported in AIR 1981 Madras 258, M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore reported in AIR 1985 (Kant) 77 and the case of M.S. Manick Peter and others Vs. K. Surendra nathan reported in AIR 1988 Kerala 161. In all these cases it has been decided that an order passed under Order 8 Rule 10 of the Code of Civil Procedure can be challenged by an application under Order 9 Rule 13 of the Code of Civil Procedure.

20. The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held :

..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”...............

21. Mr. Probir Halder also referred the case of Most. Hakumat Bibi Vs. Imam Din and others reported in PLD 1987 (S.C.)-22. In that case exparte decree was passed for not filing the written statements on the date fixed by the Court. An appeal was filed against that order under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. In Pakistan the provision of Order 43 Rule 1(b) neither has been amended nor deleted. The provision of appeal Under Order 43 Rule 1(b) against an order passed Under Order 8 Rule 10 still is present in Pakistan like Bangladesh.

22. It has been argued on behalf of opposite parties that the exparte judgment passed by the lower Court is not a judgment as defined in Section 2(9) read with Order 20 Rule 4(2) of the Code of Civil Procedure as the learned Court did not consider the case of the parties, the documents and the evidence cited by the plaintiff-petitioner in support of his case. In the case in hand the Court passed a short judgment disposing the suit in favour of plaintiff and did not at all consider the facts of the case and a decree was drawn. As per provision of Rule 10 of Order 8 the Court had two options open to it to deal with the situation arising out of the failure of the opposite party to file written statements despite they having been allowed several opportunity to do so. One of the options was to decide the suit forthwith, (ii) to make such order in relation to the suit as it thought fit. As per the provision of Order 8 Rule 10 the court can pass a judgment if the defendant fails to file written statements on the date fixed by the Court. In the present case the judgment passed by the Court is an order and the Court was not required to draw a decree in support of the said judgment. In this point we get support from the case referred by the learned Advocate for the petitioner in the case of Sarder Sakhwat Ud-Din and others Vs. Muhammad Iqbal and others reported in PLD 1983 (Lahore)-448. In that case it was held that “ after making the impugned order the learned Senior Civil Judge had drawn up a decree sheet as well. It was perhaps through inadvertence that the decree sheet was prepared because, as held above the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. In that case the case of the provice of Punjab and others ruled by the Pakistan S.C. was considered and wherein it was held :

“...... an order pronouncing the judgment against the defendants for failure to file written statements is an appealable order but not a decree. The use of the ward “Judgment” in Rule 10 of Order 8 of the Code of Civil Procedure is of little avail to the respondents because according to the definition of the “judgment” as given in clause 9 of section 2 of the above code a decree as well as an order is a judgment. It is therefore, not correct to say that only that adjudication of the court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment” .............

23.    The Court has drawn up a decree in terms of the judgment but the same was not necessary and for drawing up such decree it cannot be said that it is a decree within the meaning of section 2 (9) of the C.P.C and the judgment comes within the perview of Order 9 Rule 6 of the Code of Civil Procedure and against the said judgment the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.

24.    Referring the 1^st part of the Order 9 Rule 13 of the Code of Civil Procedure the learned Advocate for the opposite party has submitted that in any case in which an exparte decree is passed against a defendant, he may apply to the court for setting aside the exparte decree by an application Under Order 9 Rule 19 of the C.P.C. In support of his submission he referred the case of Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates Secundrabad reported in AIR 1991 (Andhra Pradesh) 69. From plain reading of the entire provision of rule 13 of order 9 it appears to us that if the Court is satisfied that the summons was not duly served upon the defendant or that he was prevented by sufficient cause from appearing at the hearing, the court can set aside an exparte decree. Specific provision has been made for preferring an appeal under Order 43 Rule 1(b) of the CPC when an order is passed under Order 8 Rule 10 of the CPC and an application Under Order 9 Rule 13 will not be entertainable in the garb of “ in any case” mentioned in the provision of Order 9 Rule 13 of the C.P.C. Moreover, the decision referred in AIR 1991 (Andhra Pradesh) 69 was passed on 30.8.1990 when the Indian C.P.C. was amended in 1976 and Rule 1 (b) of Order 43 was deleted. ‘In any case’ mentioned in rule 13 of order 9 of the Code of Civil Procedure can only be entertained when it is found is that the summons of the suit was not properly served or that the defendant was prevented by sufficient cause in appearing on the date of hearing of the suit.

25.    By amending Rule 1 of Order 8 of the C.P.C. provision has been made to file written statement within the time not exceeding two months from the 1^st date of hearing. But before amendment there was no specific time limit in the CPC for filing written statement. Before amendment it was in the discretion of the Court to allow time to the defendant to file written statement but after amendment the written statement is required to be filed before the first hearing or within 2 months. The defendants on 11.9.2005, 18.10.2005,24.11.2005 and 22.1.2006 took four adjournments for filing written statements and the court by order No. 12 dated 22.1.2006 allowed time with a cost of Tk. 700.00 and directed the defendant to file written statement on 6.2.2006 with a direction that the suit would be taken up for exparte decision in case of failure of the defendant to file written statement on that date. On the fixed date on 6.2.2006 the defendant appointed a new lawyer who again prayed for time to file written statement. On the previous date they were allowed time to file written statements with cost even then on the next date without filing any written statement they again prayed for adjournment.The defendants had the opportunity to avoid exparte judgment by filing a written statement with some facts and thereafter they could file additional written statement but the defendant without filing written statements prayed for adjournment, so, the Court did not allow time and proceeded with the exparte hearing. It does not appear from the order sheet that the learned Advocate thereafter prayed for any adjournment or that he retired from the case. When the Court proceeded for hearing of the case exparte the learned Advocate for the defendant-opposite party was present in Court but did not take any step. It has been urged that the learned Advocate for the defendant was debarred from appearing in the suit when the same was taken up for hearing but there is no evidence before us to show that learned Advocate of the defendant was not allowed to appear in the suit.

26.    From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree.   But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the exparte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellaneous case as being not entertainable. We find substance in the Rule.

        In the result, the Rule is made absolute without any order as to cost. The impugned order No. 20 dated 3.7.2006 is set aside. The miscellaneous case No. 24 of 2006 of the 1^st Court of joint District Judge, Khulna is rejected as being not maintainable. The defendant opposite parties have the opportunity to prefer an appeal as per provision of law.

Ed.

S. Co. Power Plant Ltd. Vs. Government of Bangladesh and others, VII ADC (2010) 299

Case No: Civil Petition for Leave to Appeal No. 297 of 2009

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Shamim Khaled Ahmed,,

Citation: VII ADC (2010) 299

Case Year: 2010

Appellant: S. Co. Power Plant Ltd.

Respondent: Government of Bangladesh and others

Delivery Date: 2009-10-29

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Joynul Abedin, J.
Shah Abu Nayeem Mominur Rahman, J.

S. Co. Power Plant Ltd., represented by its Managing Director Md. Sirajul Haque and another
……......Petitioners
Vs.
Government of Bangladesh and others
............Respondents

Judgment
October 29, 2009.

The High Court Division committed no mistake in law in holding that since the properties were moveable and hypothecated to the bank there was no necessity of obtaining any prior order of sale from the Adalat before making the sale. We therefore find no reason to interfere with the same. …… (6)

Lawyers Involved:
Rafiqul Islam Miah, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioners.
Shahmim Khaled,Advocate, instructed by Abu Siddique, Advocate-on-Record-For Respondent Nos. 5-6.
Not Represented-For Respondent Nos.1-4, 7-8.

Civil Petition for Leave to Appeal No. 297 of 2009.
(From the judgment and order dated 20.11.2008 passed by the High Court Division in Writ Petition No. 5778 of 2008.)

JUDGMENT

Md. Joynul Abedin J.

1.         This petition for leave to appeal is directed against the judgment and order dated 20.11.2008 passed by a Division Bench of the High Court Division in Writ Petition No. 5778 of 2008 discharging the rule.

2.         The short fact is that the petitioners filed the aforesaid writ petition and obtained rule Nisi calling upon the respondents to show cause why the order dated 6.7.2008 attaching the property of the petitioners by the Artha Rin Adalat and the proceeding of the execution proceeding in Artha Rin Execution Case No. 471 of 2008 should not be declared without lawful authority on the following averments. The writ petitioner No.1, a private limited company, obtained loan from respondent No.3, Hong Kong and Shanghai Banking Corporation Limited amounting to Tk. 14,85,00,442/- with an annual interest at the rate of 15%. The Company failed to repay the outstanding loan amount to respondent No.3 bank. Therefore, the bank, as plaintiff, filed Artha Rin Suit No. 94 of 2007 before the Artha Rin Adalat No.4, Dhaka impleading the petitioners as defendants for recovery of Tk. 1,61,01,30, 305.28 due as on 8.8.2007 with interest and other charges by sale of mortgaged and hypothecated properties in favour of the bank. The suit was contested by the defendant-petitioners and it was decreed by the judgment and decree dated 2.3.2008. The judgment debtor-petitioners failed to repay the decreetal amount whereupon the bank filed Artha Rin Execution Case No. 471 of 2008 and obtained the order of attachment from the Adalat.

3.        Respondent Nos. 5 and 6 contested the rule by filing an affidavit-in-opposition and supplementary affidavits-in-opposition supporting the impugned order contending, inter alia, that the petitioners were not persons aggrieved within the meaning of Article 102 of the Constitution inasmuch as the impugned order was not passed in violation of any law as the properties in respect of which impugned order was passed were hypothecated moveable properties and they were liable to auction-sale without interference of the Adalat for adjustment of the decreetal amount and thus the rule was liable to be discharged.

4.         The High Court Division after hearing discharged the rule holding that the impugned order of attachment of moveable properties was lawful. The petitioner thus being aggrieved filed this civil petition for leave to appeal.

5.         Mr. Rafiqul Islam Miah, the learned Counsel for the petitioners submits that the learned Judges of the High Court Division committed illegality in failing to take into consideration that respondent Bank on 20.6.2008 filed an application under Order 21, Rule 43 of the Code of Civil Procedure for attachment of the immovable property of the petitioner company and the judgment debtor petitioner company also filed a written objection which was allowed and as such before haring the matter no order of attachment could be passed, so the impugned order of attachment dated 6.7.2008 was totally illegal and without lawful authority and was of no legal effect. The learned Judges of the High Court Division discharges the rule without considering this point resulting in an error in the decision occasioning failure of justice. He lastly submits that the learned Judge of the High Court Division in their impugned judgment and order has observed that as the machinery is hypothecated to the bank it (bank) could have sold it out directly for realization of the decreetal amount which is totally illegal as hypothecation has been made to adjust the decreetal amount and not to sell the machinery without following proper and legal procedure of sale to fulfill malafide intention of the officer of the respondent bank. In fact respondent bank was liable to follow the provisions as laid down under section 33(1) of the Artha Rin Adalat Ain, 2003 providing for fair and justified process of sale of hypothecated goods. But the respondent bank without following the provisions of law and even without following of the order and direction of the Adalat to follow the provisions of section 33, with mala fide intention hurried to take possession of the plant and machinery for removing the same from the factory premise even without having any order from the Adalat. But the learned Judge of the High Court Division failed to consider this aspect of the case and discharged the rule illegally occasioning failure of justice.

6.         We have heard the learned counsel and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division committed no mistake in law in holding that since the properties were moveable and hypothecated to the bank there was no necessity of obtaining any prior order of sale from the Adalat before making the sale. We therefore find no reason to interfere with the same.

7.         The petition is accordingly dismissed.

Ed.

S. Golam Mostafa Vs. Narayangonj District Council & others, 3 LNJ AD (2014) 27

Case No: Civil Petition for Leave to Appeal No. 1030 of 2009

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Md. Nawab Ali,,

Citation: 3 LNJ AD (2014) 27

Case Year: 2014

Appellant: S. Golam Mostafa

Respondent: Narayangonj District Council and others

Subject: Res Judicata,

Delivery Date: 2013-03-31

APPELLATE DIVISION
(CIVIL)

Md. Muzammel Hossain, CJ.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J
Muhammad Imman Ali, J.

Judgment on
31.03.2013

S. Golam Mostafa
. . .Petitioner
-Versus-
The Narayangonj District Council, District: Narayangonj and others
. . . Respondent

Code of Civil Procedure (V of 1908)
Section 11
As the suit land is common in both Title Suit No.174 of 1981 as well as in the instant suit and the plaintiff claimed title through the heirs of Harun Bepari and since the earlier suit was dismissed on contest and the issue relating to right, title and possession is the same, the instant suit is clearly barred by the doctrine of a res judicata...(11)

For the petitioner: Mr. Muhammad Nawab Ali, Advocate-on-Record.
For the Respondents: Mrs. Sufia Khatun, Advocate-on-Record.

Civil Petition for Leave to Appeal No. 1030 of 2009

JUDGMENT

Muhammad Imman Ali, J:

This civil petition for leave to appeal is directed against the judgement and order dated 13.01.2009 passed by a Single Bench of the High Court Division in Civil Revision No.2987 of 2004 making the Rule absolute and thereby reversing the judgement and decree dated 06.04.2004 passed by the Additional District Judge, First Court, Narayangonj in Title Appeal No.39 of 2003 allowing the appeal and reversing the judgement and decree dated 10.03.2003 passed by the Joint District Judge, Narayangonj in Title Suit No.102 of 1999 dismissing the suit.

The facts of the case, in brief, are that the petitioner-plaintiff instituted Title Suit No.102 of 1999 before the Court of Joint District Judge, First Court, Narayangonj seeking declaration of title, confirmation of possession and recovery of khas possession in the suit land measuring an area of 21 decimals as shown in the ‘Ka’ schedule land to the plaint and also to the structures as shown in the “Kha” and “Ga” schedule land to the plaint appertaining to C.S. Khatian No.189 and S.A. Khatian No.47, Poura Holding No.210/1, Bangabandhu Sarak, Police Station Narayangonj Sadar. The plaintiff contended, inter alia, that Harun Bepari was the owner and possessor of the said land and accordingly it was recorded in C.S. Khatian No.48 in his name; that said Harun Bepari published a public notice in the daily Ittefaq dated 07.01.1978 for selling the said land. Thereafter, the plaintiff purchased the said land by sub-kabala deed dated 23.01.1978 and acquired title in the “Ka” schedule land to the plaint, filled up the land with earth, constructed some structures upon the said land and let out the same to his sister, the defendant No.3 and started possessing the suit land and structure through tenants and also by himself. A dispute arose between the plaintiff and the defendant No.2 in respect of title of the suit land and the plaintiff instituted Title Suit No.174 of 1981. That suit was dismissed by judgement and decree dated 12.05.1983. Thereafter, the plaintiff purchased the suit land again from the defendants No.4 and 5 by two registered kabala deeds dated 06.06.1983 and 21.06.1983. The defendant No.3 entered into a portion of the suit premises on 01.07.1978 by executing an agreement and thereafter he refused to pay rent whereupon the plaintiff instituted SCC Suit No.28 of 1984 for evicting the defendant No.3. The plaintiff in the instant suit prayed for declaration of title to the “Ka” schedule land to the plaint and confirmation of possession of the “Kha” schedule structure on the suit land and recovery of khas possession to “Ga” schedule structure on the suit land.

The defendant No.2, Narayangonj Jila Parishad contested the suit by filing written statement denying the material allegations made in the plaint contending, inter alia, that the suit was not maintainable as it stands framed. It was claimed that 12 decimals of land out of the suit land was acquired by the Government vide LA. Case No. 1/30 of 1935-36 and thereafter .054 acre of land was acquired for the development of Dhaka-Narayangonj Road. Thereafter, the land was leased out by defendant No.2 to defendant No.3 who is in possession of the suit land. The plaintiff previously instituted two suits against the defendants, and having lost those has filed the instant suit. The plaintiff has no right, title, interest and possession in the suit property and there was no cause of action to file the suit and the suit was not maintainable in its present form and manner. Hence, the suit was liable to be dismissed.

The trial Court upon consideration of the evidence on record dismissed the suit by the judgement and decree dated 10.03.2003 holding the suit to be barred by res judicata.

Being aggrieved by the judgement and decree of the trial Court, the plaintiff preferred Title Appeal No.39 of 2003. The said appeal was heard by the Additional District Judge, First Court, Narayangonj, who by the judgement and decree dated 06.04.2004 allowed the appeal and decreed the suit upon setting aside the judgement and decree of the trial Court.

The defendant filed a civil revisional application before the High Court Division and obtained Rule. By the impugned judgement and order, the High Court Division made the Rule absolute and set aside the judgement and decree dated 06.04.2004 passed by the appellate Court thereby restored the judgement and decree of the trial Court. Hence, the plaintiff-petitioner herein has filed the instant Civil Petition for Leave to Appeal before this Division.

Mr. Muhammad Nawab Ali, the learned Advocate-on-Record appearing on behalf of the petitioner submits that the High Court Division erred in reversing the reasoned judgement of the appellate Court. He further submits that the High Court Division did not consider the fact that L.A. Case No. of 1935-36 acquired only .08 acres of land which was confirmed by local investigation report. As such the High Court Division erred in not decreeing the remainder of the suit land in favour of the petitioner. He lastly submits that the dismissal of the entire suit was therefore illegal and the judgement and order of the High Court Division is liable to be set aside.

Mrs. Sufia Khatun, the learned Advocate-on-Record appearing on behalf of the respondents made submissions in support of the impugned judgement and order passed by the High Court Division.

We have considered the submissions of the learned Advocate-on-Record for the parties concerned and perused the impugned judgement of the High Court Division and other connected papers on record.

We note from the impugned judgement and order of the High Court Division that observation was made to the effect that the earlier Title Suit No.174 of 1981 (marked as Ext.”Ka” in the suit) was also filed seeking a declaration of title in the suit land and structures raised upon holding No.210/1 of Narayangonj Municipality, Plot No. 28/961 corresponding to schedule-‘Ka’, ‘Kha’ and ‘Ga’ land of the plaint. It was further observed that the plaintiff of the earlier suit is the plaintiff of the instant suit. In the earlier suit the Zilla Board Narayangonj as defendant produced the order sheets of the aforementioned L.A. case marked as Exts. ‘A’, ‘B’ and ‘C’ and gazette notification was marked as Ext.D. The trial Court in that suit came to a definite finding that the original owner received compensation in the said L.A. case and declared that no title passed in favour of the plaintiff on the strength of kobala deed dated 23.01.1978. No appeal was preferred against the dismissal of the said suit. The High Court Division also observed that the instant suit was filed on the strength of two subsequent kobala deeds dated 06.06.1983 and 21.06.1983 (Exts. 11 and 12) from Nazimuddin, son of late Abdul Gafur alleging the executant to be the grandson of Harun Bepari. The High Court Division observed that the compensation in L.A. Case No. of 1935-36 was in the name of two sons of Harun Bepari, namely Sirajuddin and Tafizuddin and that fact was affirmed in the earlier title suit and therefore the plaintiff could not make out a case of alleged purchase from the heirs of Harun Bepari. The High Court Division observed that so long Ext. ‘Ka’ stands, the plaintiff is estopped from claiming any title in the suit land through the heirs of Harun Bepari inasmuch as in the previously instituted suit, the Court believed payment of compensation to the sons of Harun Bepari.

As the suit land is common in both Title Suit No.174 of 1981 as well as in the instant suit and the plaintiff claimed title through the heirs of Harun Bepari and since the earlier suit was dismissed on contest and the issue relating to right, title and possession is the same, the instant suit is clearly barred by the doctrine of a res judicata.

The High Court Division has given elaborate reasons for making the Rule absolute thereby upholding the judgement and decree of the trial Court.

We do not find any cause to interfere with the impugned judgement and order of the High Court Division.

Accordingly, the petition is dismissed.

End.

S. M. Deen Islam and another Vs. Government of Bangladesh and others, 3 LNJ (2014) 727

Case No: Writ Petition No. 10166 of 2013

Judge: Farah Mahmub,

Court: High Court Division,,

Advocate: Mr. A. M. Amin Uddin,Ms. Nusrat Jahan,Mr. Nakib Saiful Islam,Mr. M. Ashraf Ali,,

Citation: 3 LNJ (2014) 727

Case Year: 2014

Appellant: S. M. Deen Islam and another

Respondent: Government of Bangladesh and others

Subject: Local Government,

Delivery Date: 2014-03-04

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Farah Mahbub, J
And
Kazi Md. Ejarul Haque Akondo, J.

Judgment on
04.03.2014

S. M. Deen Islam
. . .Petitioner
(in W.P. No. 10166 of 2013)
Md. Azizul Islam Sana
. . .Petitioner
(in W. P. No. 3705 of 2013)
-Versus-
Government of Bangladesh and others.
. . .Respondents

Constitution of Bangladesh, 1972
Article -102
Local Government (Union Parishad) Act (LXI of 2009)
Sections 34(1)(2)(4)(5)(6), 96
The Government has the power to suspend a Chairman or a member of a Union Parishad in accordance with the provision of section 34(1) subject to a pending proceeding for removal of a Chairman or member. A Chairman or member of the Union Parishad may be suspended if his act is prejudicial to the interest of the Union or undesirable from the administrative point of view.
The government is authorized to suspend a Chairman or a Member when “ ঊপ-ধারা (৪ এ বর্ণিত) অপরাধে অপসারনের জন্য কার্যএুম আরম্ভ করা হইয়াছে” means, suspension in a pending proceeding for removal and that the said procedures for removal have been enunciated in Rules, 1984( para-27) for suspension there has to be a pending proceeding for removal of a Chairman or a member in exercise power under section 34(1), which is absent in the present cases. . . .(27)
If there is some indication in the order of suspension itself that the allegation so brought against the Chairman/Members is likely to be prejudicial to the interest of the union parishad or undesirable from the administrative point of view it will suffice the requirement, for the Court will only see that there is a causal connection in both the materials and the opinion.. . . (29)
Without initiating proceeding a chairman or member cannot be suspended. There is nexus in between the materials so placed before the respondent government and its opinion but since orders of suspension have been passed against the respective petitioners without intiating proceedings, as are required under the Rules of 1984 hence, issuance of the impugned orders are liable to be knocked down for having been issued without any lawful authority and thus have no legal effect. . . . (29)

Union Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1984
Rules 4, 5, 6, 7, 8, 9, 10, 11 and 12
On perusal of Rule 4 of the Union Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1984 it appears that while requisition is being taken in the respective meeting stating the grounds for removal either of the Chairman or the Members it must be endorsed with the signature of the Chairman, whereas the whole proceeding is being initiated for his removal, which is absurd and works against his own interest. . . . (30)

Bangladesh Vs. Lokman Patwari and another reported in 46 DLR (AD)163 ref.

Mr. A. M. Amin Uddin, Advocate with
Mr. Nakib Saiful Islam, Advocate

. . . For the petitioner
(In Writ Petition No. 10166 of 2013)

Mr. M. Ashraf Ali, Advocate

. . . For the petitioner
(In Writ Petition No. 3705 of 2013)

Ms. Nusrat Jahan, A.A.G.

...For the respondent-government

Writ Petition No. 10166 of 2013 with Writ Petition No. 3705 of 2013

JUDGMENT

Farah Mahbub, J:

Since common question of law and facts are involved in both the Rules Nisi and as such, those have been heard together and are being disposed of by this single judgment.

In writ Petition No.10166 of 2013, a Rule Nisi has been issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, calling upon the respondents concern to show cause as to why the impugned Memo No. issued under the signature of respondent No.2, suspending the petitioner from the post of Chairman of Chagladaha Union Parishad, Terokhada, Khulna (Annexure-E) should not be declared to have been passed without lawful any authority and hence, of no legal effect.

In writ Petition No.3705 of 2013, vide Rule Nisi so issued under Article 102 of the Constitution of the People’s Republic of Bangladesh the respondents have been called upon to show cause as to why the impugned Memo No. ¯nvmwe/Bc/BEwc-44/2008/154 dated 28.03.2013 issued under the signature of respondent No. 3, temporarily suspending the petitioner from the post of Chairman of No.5 Borodal Union Parishad, Ashashuni, Satkhira (Annexure-F) should not be declared to have been made without lawful any authority and hence, of no legal effect.

In writ Petition No.3705 of 2013 facts, in brief, are that the petitioner was elected as Chairman of No.5 Borodal Union Parishad, Ashashuni, Satkhira; however, the result of the election was duly published in gazette on 17.04.2011. On taking oath on 06.05.2011 he entered into the office of the said union parishad. It has been contended that the petitioner had been discharging his duties as Chairman of the said union parishad for near about 2(two) years and that no complain whatsoever had ever been raised against him during this period.

On 08.02.2012 one Abdul Alim Molla, Member, Ward Nos.6 and 5, Borodal Union Parishad, Ashashuni, Sathkira made a complaint to the respondent No.1 bringing allegations of corruption and misappropriation of public fund against the petitioner (Annexure-B). Pursuent thereto the respondent No.4 had been directed to enquire into the matter and to submit a report thereof. The said respondent after due inquiry submitted report to the authority concern on 12.08.2012 for consideration (Annexure-C). However, pursuant to the inquiry report the respondent No.4 had directed the petitioner to submit his reply. Accordingly, on 01.10.2012 he replied to the allegations so made against him (Annexure-D). On receipt thereof the respondent No.4 vide Memo No. LG/46.44.87.00.007.27.004 (ashashuni). 12-45 dated 28.01.2013 had forwarded the enquiry report along with the reply of the petitioner to the respondent No.1 for taking necessary action (Annexure-E). Considering those materials the respondent No. 3 vide the impugned Memo dated 28.01.2013 had suspended the petitioner from the post of Chairman of No.5 Borodal Union Parishad, Ashashuni, Sathkira under section 34(4) of the Ain, 2009 on the allegation of corruption and misappropriation of public fund(Annexure-F).

In writ petition No. 10166 of 2013 it has been stated that the petitioner is the elected Chairman of No. 3 ছাগলাদহ ইউনিয়ন পরিষদ, তেরখাদা, খুলনা, who had been discharging his duties and functions without any objection from any quarter whatsoever. It has been contended that 6(six) other elected members of Chagladha Union Parishad under Terokhadha Upazila made an allegation to the respondent No. 3 against the petitioner for corruption and mismanagement in the respective development project. Pursuent thereto the respondent No. 3 had directed the respondent No. 4 to enquire into the matter and submit a report. Accordingly, respondent No. 5 inquired into the allegation and submitted a report to the respondent No.3 on 17.07.2013 for consideration. Pending inquiry process the Union Parishad Members who made the allegations had subsequently withdrawn his complaint vide application dated 06.06.2013 stating, inter-alia, that they made allegations out of their personal grudge but the inquiry officer i.e. the respondent No.4 without taking into consideration of the said withdrawal letter had submitted an inquiry report against the petitioner. The respondent No. 4, however, during the course of inquiry had asked the petitioner to show cause in respect of the allegations as brought against him. On 26.02.2013 the petitioner categorically explained denying the allegations so made against him. But without taking personal hearing of the petitioner and without proper inquiry and investigation as well as without hearing to the complainants who made the allegations the Inquiry Officer had submitted an inquiry report. On receipt thereof the respondent No. 3 vide Memo No. 40.46.4700.024.02.00.13 dated 18.07.2013 had forwarded the same to the respondent No. 1 to take necessary steps in the matter. Pursuent thereto the respondent No. 2 vide the impugned Memo No. ¯nvmwe/Bc/BEwc-39/99/722 dated 23.09.2013 had suspended the petitioner from his office and communicated the same to the respondent No.4 asking him to arrange appointment of a Chairman from the elected panel Chairman.

Being aggrieved by and dissatisfied with the petitioners concern have preferred the instant applications and obtained the present Rules Nisi.

Mr. A.M. Amin Uddin, the learned Advocate appearing with Mr. Nakib Saiful Islam, the learned Advocate for the petitioner in Writ Petition No. 10166 of 2013 and Mr. M. Ashraf Ali the learned Advocate for the petitioner in Writ Petition No. 3705 of 2013 co-jointly submit that from the impugned order(Annexure-F) it appears that the respondent No.3 has suspended the petitioner sexercising his power as provided under section 34(4)(gha) of the Local Government(Union Parishad) Ain, 2009(in short, the Ain, 2009). In this regard referring to section 34(4)(gha) of the said Ain it has been argued that the same does not confer any such power to suspend the petitioners rather aforesaid section only prescribes a disqualification of a Chairman for which he can be removed from his post; Consequently, suspending the petitioner under the said provision of law is without jurisdiction.
Further, it has been submitted that a Chairman of a union parishad can be suspended under section 34(1) of the Ain,2009, but in such a case a proceeding for removal of the said Chairman has be started. In the instant case, it is evident from record that the respondents have suspended the respective petitioners without initiating any proceeding for removal. In such view of the matter, it has been contended that the impugned order is illegal. Again, it is submitted that section 34(1) of the said Ain has prescribed the circumstances under which a Chairman of a union parishad may be suspended from his respective post, but before such suspension the government must also form an opinion, as required under the said provision of law. However, the impugned orders do not disclose as to how the government was satisfied that continuation of the Chairmanship by the petitioners would be prejudicial to the interest of union parishad or undesirable on the count of public interest. Accordingly, it has been submitted that upon making both the Rules absolute declaring the impugned orders to have been passed without any lawful authority those need to be struck down.

Ms. Nusrat Jahan, the learned Assistant Attorney General, appearing on behalf of respondent-government submits that pursuant to the complaint so have been received from the respective quarters both the contending parties i.e., the petitioners and the complainant, were duly notified to attend the hearing. However, on the date and time so fixed for hearing of the parties, both of them were present with their respective witnesses and that the hearing was duly and properly concluded in the presence of the authority concern. The inquiry committee so had been constituted to that effect ultimately opined that the allegations so had been brought against the petitioners were found correct. Accordingly, the same was duly forwarded with all relevant records to the Ministry concern to take appropriate steps in the matter. Being satisfied the respondent No.1, the concern Ministry issued the order of suspension being duly empowered under section 34(1) of the “সহানীয় সরকার (ইঊনিয়ন পরিষদ) আইন, ২০০৯” (Act No. 61 of 2009) (in short, the Ain). As such, she goes to submit that before issuance of the impugned orders due procedures have been initiated against the respective petitioners, for no other procedures have been prescribed or referred to or mentioned within the four corners of the said Ain, 2009 and that according to section 34(2) of the Ain,2009 the penal Chairman will now discharge the functions as the acting Chairman till temporary suspension is withdrawn or till re-election of the Chairman has been held after the said removal.

So far the opinion of the respondent-government is concerned Ms. Nusrat goes to submit that in Bangladesh Vs. Lokman Patwari and another reported in 46 DLR (AD) 163 the Appellate Division has clearly expresed their observations contending, inter-alia, “the High Court Division completely failed to consider that this is not a case where there was no formation of opinion at all. The impugned order clearly shown that an opinion was formed and was expressed, definitely and decisively. Considerable materials were there before the government for formation of opinion in the way it has been formed”. In the said case the Appellate Division accordingly found “we have decided not to interfere with the judgment and order of the High Court Division not because the reasonings given by the learned Judges were correct but because the basis on which the government based its action no longer exists.” In the instant cases, she submits that the opinion was duly and properly formed by the respondent government, for it has been clearly spelt out in the temporary suspension orders that because of the allegation of corruption, holding the office of Chairman of the concerned union parishad by the petitioners should not continue in the interest of public. Accordingly, she submits that both Rules Nisi being devoid of any substance are liable to be discharged.

Previously with a view to provide for the constitution of union parishad for the union in rural areas and for matters incidental or ancillary thereto the Chief Martial Law Administrator had promulgated the Local Government(Union Parishad Ordinance,1983)( in short, the Ordinance).

Section 65 of the said Ordinance, however, has authorized the government to suspend the Chairman in certain circumstances mainly 1. where any proceeding has been initiated for the removal of the Chairman under section 12; or 2. where any criminal proceedings of any law have been started against the Chairman; or 3. where on an inquiry by the government, he is found to be guilty of any misconduct within the meaning of section 12(1) and that in the opinion of the government the exercise of power by him as Chairman is either likely to be prejudicial to the interest of the union parishad or undesirable from the point of view of public interest. Accordingly, the government may, by order in writing, place such Chairman under suspension.

The said Ordinance has subsequently been repealed with the promulgation of a new statute under the name and style সহানীয় সরকার(ইঊনিয়ন পরিষদ) আইন, ২০০৯ (Act No. 61 of 2009)(in short, the Ain).

Section 34 of the said Ain provides power to the government to suspend the Chairman or the Members of a union parishad a) where proceedings have been initiated for removal of a Chairman or the Members for the offence as described in section 34(4) of the Ain; b) where police report in connection with a criminal case has been accepted by the Adalat concern; or c) where the Adalat has taken cognizance of the offence; and that in the opinion of the the designated authority “নির্ধারিত কর্তৃপক্ষ” the exercise of power by the said Chairman or the Members is likely to be prejudicial to the interest of the respective union parishad or undesirable from the administrative point of view; the government may, by order in writing, place such Chairman or the Members under suspension.

Section 34(1) of the Ain, 2009 is accordingly quoted herein below:-

“৩৪। চেয়ারম্যান বা সদস্যগণের সাময়িক বরখাস্তকরণ ও অপসারণ।-

যে ক্ষেত্রে কোন পরিষদের চেয়ারম্যান বা সদস্যের বিরুদ্ধে ঊপ-ধারা (৪) এ বর্ণিত অপরাধে অপসারণের জন্য কার্যএুম আরম্ভ করা হইয়াছে অথবা তাঁহার বিরুদ্ধে ফৌজদারী মামলায় অভিযোগপত্র আদালত কর্তৃক গৃহীত হইয়াছে অথবা অপরাধ আদালত কর্তৃক আমলে নেওয়া হইয়াছে, সেইক্ষেত্রে নির্ধারিত কর্তৃপক্ষের মতে চেয়ারম্যান অথবা সদস্য কর্তৃক ক্ষমতা প্রয়োগ পরিষদের স্বার্থের পরিপন্থী অথবা প্রশাসনিক দৃষিটকোণে সমীচীন না হইলে, সরকার লিখিত আদেশের মাধ্যমে চেয়ারম্যান অথবা সদস্যকে সাময়িকভাবে বরখাস্ত করিতে পারিবে| ”

So far the present case is concerned the petitioners, the Chairmen of the respective union parishad, have been suspended under section 34(4)(gha) of the Ain,2009 vide Memo No. সহাসবি/ইপ/ইঊপি-৪৪/২০০৮/১৫৪ dated 28.03.2013 (Annexure-F) of writ petition No. 3705 of 2013 and Memo No. সহাসবি/ইপ/ইঊপি-৩৯/৯৯/৭২২ dated 23.09.2013 dated (Annexure-E) of the writ petition No. 3705 of 2013. The contents of Memo dated 28.03.2013 (Annexure-F), however, are quoted below:-

A Chairman or Member of the respective union parishad is liable to be removed on the allegation, inter alia-

“ ৩৪(৪)(ঘ) অসদাচরণ বা ক্ষমতার অপব্যবহারের দোষে দোষী হন অথবা পরিষদের কোন অর্থ বা সম্পত্তির কোন ক্ষতি সাধন বা ঊহার আত্মসাতের বা অপপ্রয়োগের জনা দায়ী হন ; ”

In other words, if he is found guilty of misconduct or causes abuse of power or loss to any property of the union parishad or is found to have misappropriated fund or property of the respective union parishad he may be suspended under section 34(1) of the Ain,2009.

However, in the explanation “e¨vL¨v” under section 34(4) the word “Am`vPiY” has further been defined as-

“ব্যাখ্যাঃ এই ঊপ-ধারায় 'অসদাচরণ' বলিতে ক্ষমতার অপব্যবহার, কর্তব্যে অবহেলা, দুর্নীতি, স্বজনপ্রীতি ও ইচ্ছাকৃত কুশাসনও বুঝাইবে| ”

Vide section 34(5) the government or the government nominated designated authority may remove the Chairman or the respective members of the concerned union parishad upon publishing in gazette. However, before finalization of the order of removal there has to be an inquiry following the procedures as prescribed in the Rules and that the incumbent has to be provided an opportunity to represent his case. Under section 34(6) on obtaining approval of the respondent government on the proposal for the said removal the incumbent concerned shall be removed ipso facto.

Section 34(5) and (6) are accordingly quoted below:-

“৩৪(৫) সরকার বা সরকার কর্তৃক নির্ধারিত কর্তৃপক্ষ সরকারি গেজেটে আদেশ দ্বারা, উপ-ধারা (৪) এ উল্লেখিত এক বা একাদিক কারণে চেয়ারম্যান বা সদস্যকে অপসারণ করিতে পারিবেঃ
তবে শর্ত থাকে যে, অপসারণের সিদ্ধান্ত চুড়ান্ত করিবার পূর্বে বিধি মোতাবেক তদন্ত করিতে হইবে ও অভিযুক্তকে আত্নপক্ষ সমর্থনের সুযোগ দিতে হইবে।
(৬) কোন চেয়ারম্যান বা সদস্য এর অপসারণের প্রস্তাব, সরকার বা সরকার কর্তৃক নির্ধারিত কর্তৃপক্ষ কর্তৃক অনুমোদন লাভের পর তিনি তাৎক্ষণিকভাবে অপসারিত হইবেন। ”

The combined effect of section 34(1),(4),(5) and (6) of the Ain is that if there be any allegation as prescribed in section 34(4) the authority concern has to make an inquiry on the same, following the procedures as prescribed in the Rules so made thereunder. In other words, pending proceedings so initiated for removal of the Chairman or the Member the inquiry under section 34(5) has to be made following the Rules so framed in this regard.

However, the fact remains that no Rule as yet has been framed by the government in exercise of power as provided under section 96 of the Ain. Though section 108 (1) and (2)(kha) of the Ain provides that –

“রহিতকরণ এবং হেফাজত।-(১) এই আইন বলবৎ হইবার সংগে সংগে Local Government (Union Parishads) Ordinance, 1983 (Ord. No. LI of 1983) অতঃপর বিলুপ্ত অধ্যাদেশ বলিয়া উল্লিখিত, রহিত হইবে।
(২)উপধারা (১) এর অধীন বিলুপ্ত অধ্যাদেশ রহিত হইবার পর-
(খ) বিলুপ্ত অধ্যাদেশের অধীন প্রনীত সকল বিধি, প্রবিধান ও আদেশ, জারিকৃত বিজ্ঞপ্তি বা নোটিশ বা মঞ্জুরীকৃত সকল লাইসেন্স ও অনুমতি এই আইনের বিধানবলীর সহিত সামঞ্জস্যপূর্ন হওয়া সাপেক্ষে, রহিত ও সংশোধিত না হওয়া পর্যন্ত বলবৎ থাকিবে এবং এই আইনের অধীন প্রনীত, প্রদত্ত, জারিকৃত বা মঞ্জরীকৃত হইয়াছে বলিয়া গন্য হইবে। ”

In view of the said savings clause the Union Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1984 being still in operation is applicable in the present case. On perusal of the said Rules it appears that rules 4,5,6,7,8,9,10,11 and 12 of the said Rules have prescribed the procedures to be followed in this regard. In the instant case, the said procedures do no appear to have been followed.
At this juncture, the learned Assistant Attorney General appearing for the respondent-government submits that proceedings for suspension and the proceedings for removal are disjunctive. Since prior to issuance of the impugned order due inquiry was made with the issuance of show cause notice upon the petitioners concern and that both of them replied to the same; as such, it is apparent that in due compliance of law the orders of suspension have been issued.

The said contention of the respondent-government is a misconceived one, for the government is authorized to suspend a Chairman or a Member when “Ec-aviv (4 G ewY©Z) Aciv‡a Acmvi‡bi Rb¨ Kvh©G“g Avi¤¢ Kiv nBqv‡Q” means, suspension in a pending proceeding for removal and that the said procedures for removal have been enunciated in Rules,1984, for till date no Rules have been framed by the government under section 96 of the Ain, 2009, as observed earlier. In this regard, the respondent-government has failed to show that it has duly initiated proceedings for removal of the concerned Chairman or the Members, as the case may be, in compliance of Rules, 1984 and that the pending proceedings for removal of the petitioners they have been suspended. However, previously section 65 of the Ordinance provided that a Chairman might be suspended “where on an inquiry by the government he is found to be guilty of any misconduct within the meaning of section 12(1)”; whereas under section 34(1) of the Ain, 2009 he may be suspended by the government in exercise of power as provided therein when “Ec-aviv 4 G ewY©Z Aciv‡a Acmvi‡bi Rb¨ Kvh©G“g Avi¤¢ Kiv nBqv‡Q| ” From the using of those words the intention of the legislature can clearly be gathered that for suspension there has to be a pending proceeding for removal of a Chairman or a member in exercise power under section 34(1), which is absent in the present cases.

So far the opinion of the respondent government is concerned, it appears on a plain reading of section 34(1) of the Ain that exercise of such power by the government is conditional so far formation of opinion is concerned. The said issue has earlier been agitated in Bangladesh Vs. Lokman Patwari and another reported in 46 DLR (AD)163. The Appellate Division while making observations to that effect categorically found, inter-alia,

“Whenever in any statute the exercise of power by any authority is made conditional upon the formation of opinion of such authority, the formation of opinion is a sine qua non for the exercise of such power. Mere existence of any of the three circumstances mentioned in section 65(1) will not be enough. The Government also must form an opinion in terms of the language mentioned in section 65(1). The opinion is formed by the Government after considering the materials before it and after being satisfied that the materials have a causal connection with the kind of opinion that it is required to form. If there are no materials at all on which to form an opinion or if the materials that exist are totally unconnected with the kind of opinion that the Government is required to form then the order of suspension will fall through.”

In the light of the observations of the Appellate Division, so made, in particular at paragraph 10, if there is some indication in the order of suspension itself that the allegation so brought against the Chairman/Members is likely to be prejudicial to the interest of the union parishad or undesirable from the administrative point of view it will suffice the requirement, for the Court will only see that there is a causal connection in both the materials and the opinion. In the present case, on the count of “অর্থ আত্মসাৎ ও দুর্নীতির অভিযোগ প্রমাণিত হওয়ায়........” the respondent-government has duly suspended the petitioners under section 34(4)(Gha), but without considering the position of law that there has to be a pending proceeding for removal, which has not been initiated in the present case. Accordingly, we have no manner of doubt to find that though there is nexus in between the materials so placed before the respondent government and its opinion but since orders of suspension have been passed against the respective petitioners without intiating proceedings, as are required under the Rules of 1984 hence, issuance of the impugned orders are liable to be knocked down for having been issued without any lawful authority and thus, have no legal effect.

In this regard, it will not be out of place to observe that on perusal of rule 4 of the Rules, 1984 it appears that while requisition is being taken in the respective meeting stating the grounds for removal either of the Chairman or the Members it must be endorsed with the signature of the Chairman, whereas the whole proceeding is being initiated for his removal, which is absurd and works against his own interest.

In view of the said position of law, we are of the opinion that since admittedly the respondent-government has not yet framed any Rules under the Ain, 2009 a proper Rule ‘‘বিধিমালা’’ should be framed highlighting the said lacuna, as has been observed and fill up the same in accordance with law.

In view of the above facts and circumstances, observations and findings we find substance in both the Rules and accordingly both the impugned Memo Nos. সহাসবি/ইপ/ইঊপি-৪৪/২০০৮/১৫৪ dated 28.03.2013 and সহাসবি/ইপ/ইঊপি-৩৯/৯৯/৭২২ dated 28.09.2013 are liable to be declared to have issued been issued without lawful authority for having been issued without complying the requirements of law as prescribed in the statute i.e., the Ain, 2009 and the Rules, 1984.

In the result, both the Rules are made absolute.

The impugned Memo Nos. সহাসবি/ইপ /ইঊপি-৪৪/২০০৮/১৫৪ dated 28.03.2013 and সহাসবি /ইপ/ইঊপি-৩৯/৯৯/৭২২ dated 28.09.2013 issued under the signature of respondent Nos.2 and 3, temporarily suspending the petitioners from the post of elected Chairman of Chagladaha Union Parishad, Terokhada, Khulna and No.5 Borodal Union Parishad, Ashashuni, Satkhira (Annexure-E and F respectively) are hereby declared to have been passed without lawful any authority and hence, are of no legal effect.

However, since the impugned order has been knocked down by this Court for non-compliance of law as such, the respondent-government will be at liberty to issue a fresh order in strict compliance of law, if so desires.
There will be no order as to costs.

Ed.

S. M. Hossain and others Vs. Lahazuddin and others

Case No: Civil Petition for Leave to apple Nos.94 and 95 of 2005.

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Faysal Hasan Arif,A. K. M. Shahidul Huq,,

Citation: VII (ADC) (2010) 206

Case Year: 2010

Appellant: S. M. Hossain and others

Respondent: Lahazuddin and others

Subject: Property Law,

Delivery Date: 2009-08-03

S. M. Hossain and others Vs. Lahazuddin and others
VII (ADC) (2010) 206

Supreme Court
Appellate Division
(Civil)

Present:
Md. Abdul Matin J
Md. Abdul Aziz J
Md. Muzammel Hossain J

S. M. Hossain………..Appellant (In Civil Appeal No. 178 of 2002)
Dilruba Khanam and others………….Petitioners (In Civil Appeal Nos. 94-95 of 2005)
Vs.
Lahazuddin and others……………Respondents (In Civil Appeal No. 178 of 2002)
S. M. Hossain and other…………Respondents (In Civil Appeal Nos. 94-95 of 2005)

Judgment
August 3, 2009.

Code of Civil Procedure, 1908
Order 7, Rule 11; section 66

Evidence Act, 1872
Sections 115 and 116

High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants as laid down in sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No. 1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law. …. (9)

High Court Division acted illegally and contrary to law in failing to consider that the plaintiffs' suit was barred by Sections 11 and 66 of the Civil Procedure Code and as such committed error in law in rejecting the petition under Order VII Rule 11 of the Code of Civil Procedure. …. (9)

He then submits that the High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants are laid down in Sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No. 1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law. In support of his contention he has referred to the decisions. …(10)

We have already discussed above that during the pendency of Title Suit No.52 of 1957 and also in view of the Civil Revision No. 1225 of 1960 and Civil Revision No. 1142 of 1969 the status of the plaintiff respondent Nos.1-6 there is a prima facie case that the plaintiff respondent Nos.1-6 are the tenants under the defendant-appellant or his predecessor-in-interest. In the case of Hajee Abdus S attar Vs. Mahiuddin and others reported in 6 BCR (AD) 71 where it is held that the tenants are estopped from raising their title of adverse possession against the land lord. In the instant case it appears that the Title Suit No.96 of 1996 is barred by law since admittedly the plaintiff-respondents are tenants of the defendant-appellant. In the case reported in 20 BLD (AD) 278 the Appellate Division while discussing on the rejection of the plaint observed that-

"The plaintiffs therefore can not now be allowed to proceed with the present suit simply because that in the kabala of defendant No.1 certain explanations have been given for inclusion of certain lands. It appears that on fraud has been practiced upon the Court by the defendants in the earlier suit. The onus of proving their title and possession rest with the plaintiffs which they filed to discharge in their earlier suit even upto the Appellate Division. When this is the position the present suit can not be allowed to be proceeded further. As the ultimate result of the suit is as clear as day light such a suit should be properly buried at its inception so that no further time is consumed in a fruitless litigation. When the ultimate result is clear, the plaintiffs can not be allowed to re-open the same matter afresh after loosing upto the Appellate Division. This is merely a gambling in litigation which can not be allowed. The High Court Division thoroughly considered very aspect of the matter and rightly found that the present suit is barred by law." (18)

A plaint may be rejected under Order 7, Rule 11 from the plain reading of the plaint. But in exceptional cases a plaint may also be rejected under inherent power of the Court under Section 151 of the Code when the suit is barred by law as in the instant case. For the aforesaid reasons we find merit in the appeal. … (19)

Cases Referred To-
Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd. 20 BLD (AD) 278; Guiness Peat (Trading) Limited Vs. Md. Fazlur Rahman, 12 BLD (AD) 247; Abdul Jalil Miah (Md) Vs. Niropama Ritchil and others, 49 DLR (AD); Abdul Malek Sawdagar Vs. Md. Mahbubey Alam and others, 57 DLR (AD) 18; Santipada Datta & others Vs. Satish Chandra Das and others, 54 DLR (AD) 173; Hajee Abdus Sattar Vs. Mahiuddin & ors, 38 DLR (AD) 97; Afroza Bewa and others Vs Md. Jalaluddin Pramanik, 48 DLR (AD) 205; 11 MLR (AD) 58.

Lawyers Involved:
A. F. M. Hassan Ariff, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-On-Record-For the Appellant (In Civil Appeal No. 178 of 2002).
A. K. M. Shahidul Huq, Advocate-On-Record-For the Petitioners (In Civil Appeal Nos. 94-95 of 2005).
Abdul Wadud Bhuiyan, Senior Advocate instructed by A. K. M. Shahidul Huq, Advocate-On-Record-For the Respondent Nos.2-3 (In Civil Appeal No. 178 of 2002).
Not Represented-For the Respondent Nos.1, 4-36 (In Civil Appeal No. 178 of 2002).
A. F. M. Hassan Ariff, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate On-Record-For the Respondent No.1 (In Civil Appeal Nos. 94-95 of 2005).
Not Represented- Respondent Nos.2-10 (In Civil Appeal Nos. 94-95 of 2005).

Civil Petition for Leave to apple Nos.94 and 95 of 2005.
(Civil Appeal No. 178 of 2002 arising out of the judgment and order dated 16.08.2000 in Civil Revision No. 1586 of 1998, Civil Appeal No.94 of 2005 arising out of the judgment and order dated 07.07.2004 in Civil Revision No.2918 of 2003 and Civil Appeal No.95 of 2005 arising out of the judgment and order dated 07.07.2004 in Civil Revision No.2917 of 2003 all are passed by the High Court Division).

Judgment

Md. Muzammel Hossain J. - This special appeal by leave is granted against the judgment and order dated 16.08.2000 passed by the High Court Division in Civil Revision No.1586 of 1998 discharging the Rule and affirming the order dated 23.03.1998 passed by the Sub-Ordinate Judge, 1st Court, Chittagong in Other Class Suit No.96 of 1996 rejecting the application of the instant petitioner under Order-7, Rule-11 (d) of the Code of Civil Procedure.

2. Facts involved in this case, in short, are that the respondent Nos. 1-6 as plaintiffs instituted a suit on 25.08.1996 being Other Class Suit No.96 of 1996 in the 1st Court of Sub-Ordinate Judge, Chittagong praying for declaration that the plaintiff respondent Nos. 1-6 have acquired a title by adverse possession in the suit property and also prayed for confirmation of their possession and the respondents also prayed for other consequential relieves as mentioned in the plaint.

3. The case of the respondent Nos.1 to 6 in brief is that the schedule-2 property (which is suit property) originally belonged to defendant No. 1 (Probhabati Chatterjee) that Mohammed Yousuf, Predecessor of respondent Nos. 1 to 6 and Md. Muzammel Hossain J VII ADC (2010) their uncle Abdul Matin Chowdhury hired the suit building at a monthly rent of Tk.707- in the year 1947 from defendant No.1 that plaintiffs/respondent uncle left Chittagong in the year 1972 handing over possession of the suit premises in favour of plaintiffs/respondents father, that Md. Solaiman Chowdhury filed a rent suit against defendant No.1 being S.C.C. Suit No. 516 of 1953 and obtained an expert decree on 04.03.1954; that the suit property was sold in auction on 14.03.1955 in Money Execution Case No 343 of 1954; that the property was auction purchased by defendant No.2 the instant petitioner, who obtained Sale Certificate and took delivery of possession on 10.05.1955; that the auction sale was fraudulent, benami and null and void; that defendant opposite party No. 1 (Probhabati Chatterjee) started Miscellaneous Case No. 69 of 1956 under Order 21 rule 90 in the 1st, Court of Munsif, Sadar Chittagong for setting aside the sale, which was dismissed on 23.11.1959 on contested hearing against which Miscellaneous Appeal No.1 of 1960 was preferred in the Court of learned District Judge, Chittagong, which was also dismissed on contested hearing that Civil Revision No. 1225 of 1960 was preferred against the judgment and other passed in Miscellaneous Appeal No.1 of 1960; that the Rule was discharged on contested hearing on 21.07.1996 by this Honorable Court and the auction sale was confirmed; that the defendant No. 1 (Probhabati Chatterjee) also instituted other class suit No 21 of 1956 in the 1st Court of Munsif; that the said suit was renumbered as other suit No. 52 of 1957 in the Second Court of Munsif on transfer, was also dismissed on 02.06.1966; the appeal against said judgment was disallowed and that the S.A. No. 939 of 1967 was allowed by the Honorable High Court by Judgment dated 02.06.1983 and the suit was sent back on remand to the trial Court, which is said to be pending; that during pendency of the other class suit No.21 of 1956, plaintiffs/respondents father entered into a sale agreement for purchasing the suit property at a sum of Tk. 15,000/- executed by the Constituted Attorney of defendant No.1 on 22.05.1957 and a sum of Tk. 4000/- was paid to him as earnest money, that Md. Yousuf would continue to pay rent till Kabala is registered; that thereafter, plaintiffs/respondents father paid a further sum of Tk. 11,000/- in two installments to the said Attorney leaving a balance of Tk. 1000/- that balance amount was refused by the attorney on tender by the plaintiffs/respondents father; that said Attorney also refused to execute the kabala on 07.01.1972; since then the plaintiffs/respondent Nos.1 to 6 are continuing in adverse possession by asserting their own title; that the plaintiffs/respondents have acquired title by adverse possession. The instant petitioner filed two Rent Suits against the plaintiffs/respondents father and uncle numbered as money suit No.92 of 1960 and Money Suit No.97 of 1066 in the 1st, Court of Munsif; that both the suits ware stayed in Civil Revision No.1142 of 1969 preferred by plaintiffs/respondents father Md. Yousuf and their uncle Abdul Matin; that both the Civil Revision No. 1225 of 1960 and Civil Revision No 1142 of 1969 were heard analogously and both the Rules were discharged on 21.07.1996 on contested hearing; that the petitioner and respondent Nos.2-27 are threatening the plaintiffs/respondent Nos.1 to 6 with dispossession and trying to dispossess them by force, hence the suit.

4. The petitioner appeared in the suit and filed a petition under order 7 rule 11 of the Civil Procedure Code for rejecting the plaint contending, inter alia, that the plaintiffs/respondent Nos. 1 to 6 being legal heirs of temporary monthly co-tenant late Md. Yousuf and respondent Nos. 28-35 legal heirs of Abdul Matin also a co-tenant of the suit premises, stepped into the shoes of the original monthly tenants at a monthly rent of Tk. 70/- under original landlady Sm. Provabati Charterjee (said to be dead) and the petitioner having acquired the right, title and interest of said Provabati Chaterjee by auction purchase on 14.03.1955, the plaintiffs/respondents are estopped by law under section 115 and 116 of Evidence Act from setting up any claim of title and/or denying the petitioners title in the said property; that the claim of the plaintiffs/respondent Nos.1-6 was also barred by law; that the plaintiffs/ respondent Nos.1-6 has on cause of action for the suit; that the suit was under valued and proper Court fee was not paid; that the suit is also barred by the judgment passed in Civil Revision No. 1225/60 and Civil Revision No. 1142/69, in which the petitioners auction purchased right was finally adjudicated and decided by the Honorable High Court by judgment dated 21. 07.1996, heard analogously on contested hearing; that the suit was fraudulent, harassing and intended to continue in unauthorised occupation of the suit premises by litigation without payment of any rent to the petitioner; that the suit was misconceived and was also barred by section 66 of the Civil Procedure Code and the petitioner prayed for rejection of the plaint.

5. The plaintiff-respondent Nos.1-6 filed a written objection against the application for rejection of plaint stating, inter-alia, that the title of the petitioner was still sub-judice in Other Suit No.21 of 1956 filed by the respondent No.7 which does not contain any substance and legal force. It is asserted that the respondent No.7 died long ago and the suit filed by her has abated. The petitioner referred the orders passed in Civil Revision No. 1225 of 1960 with regard to death of respondent No.7 at the time of hearing of the Rule. The respondent No.36 tadbirkar of the respondent No.7 was directed to produce respondent No.7 before the High Court Division by order dated 31.07.1989.

6. The learned Sub-Ordinate Judge by the judgment and order dated 23.03.1998 rejected the application under Order 7 Rule 11 C.P.C

7. Being aggrieved by the aforesaid order dated 23.03.1998 passed by the learned Sub-Ordinate Judge the petitioner preferred revisional application being Civil Revision No. 1586 of 1998 before the High Court Division and obtained Rule which was discharged by the judgment and order dated 16.08.2000 and thereby affirming the order dated 23.03.1998 rejecting the application under Order 7 Rule 11 C.P.C.

8. The defendant No.2-petitioner being aggrieved by the aforesaid judgment and order dated 16.08.2000 passed by a Division Bench of the High Court Division preferred these civil appeal and leave petitions before this Appellate Division.

9. This Hon'ble Court was pleased to grant leave in Civil Appeal No.178 of 2002 in the following terms
"The learned counsel appearing for the petitioner submits that there is a clear admission in the plaint that the predecessor-in-interest of the plaintiff-respondent Nos.1 to 6 and respondent Nos.28 to 36 were monthly tenants in respect of the suit premises and the High Court Division has failed to take into consideration and thus acted illegally and erroneously. He further submits that the High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants as laid down in sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No. 1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law.
The learned counsel further submits that the High Court Division acted illegally and contrary to law in failing to consider that the plaintiffs' suit was barred by Sections 11 and 66 of the Civil Procedure Code and as such committed error in law in rejecting the petition under Order VII Rule 11 of the Code of Civil Procedure. He further submits that the plaintiff-respondents being heirs of the deceased defendants in Money Suit Nos. 92 of 1960 and 97 of 1966 filed by the defendant for recovery of arrear rent and the predecessor-in-interest having admitted their tenancy under the petitioner in respect of the same property, the High Court Division erred in law in not holding that the present suit claiming title by heirs of tenant is barred under Order XXII, Rule 4, Sub-Rule (2) of the Civil Procedure Code whereunder the heirs are estopped from raising a new case. The above submissions merit consideration. Leave is granted upon condonation of the delay."

10. Hassan Ariff, the learned Advocate appearing for the appellant in Civil Appeal No. 178 of 2002 and respondent No.1 in Civil Petition Nos. 94-95 of 2005 submits that in view of the clear admission in the plaint that the predecessor-in-interest of the plaintiff-respondent Nos. 1 to 6 and respondent Nos. 28-36 were monthly tenants in respect of the suit premises and the High Court Division committed error in law in taking into consideration the same view. He then submits that the High Court Division acted illegally and contrary to law in failing to appreciate the law of estoppel of tenants are laid down in Sections 115 and 116 of the Evidence Act under which monthly tenants are estopped from denying the title of the owner without surrendering the premises and the plaintiff-respondents admittedly not having surrendered possession after judgment in Civil Revision No. 1142 of 1969 wherein the issue of tenancy has been decided, the suit is barred by law. In support of his contention he has referred to the decisions reported in BCR 1986 AD 71; 1986 BLD (AD) 224(a); 48 DLR (AD) 205. Mr. Ariff submits that the High Court Division acted illegally in failing to consider that the plaintiffs' suit was barred by Sections 11 and 66 of the Civil Procedure Code and thus committed error of law in rejecting the application under Order VII Rule 11 of the Code. He has referred to the decision of the case of Guiness Peat (Trading) Limited Vs. Md. Fazlur Rahman reported in 12 BLD (AD) 247. He finally submits that the plaintiff-respondents being heirs of the deceased defendants in Money Suit Nos.92 of 1960 and 97 of 1966 filed by the defendants for recovery of arrear rent and the predecessor-in-interst having admitted their tenancy under the petitioner in respect of the same property, the High Court Division erred in law in not holding that the present suit claiming title by heirs of tenant is barred under Order XXII, Rule 4, Sub-Rule (2) of the Civil Procedure Code and as such they are estopped from raising any new case.

11. In this context he refers to the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd. reported in 20 BLD (AD) 278.

12. Abdul Wadud Bhuiyan, the learned Senior Advocate appearing for the respondents submits that there is no illegality in the impugned judgment and order passed by the High Court Division. In view of the findings of the Court that the plaintiffs were their predecessors were not the tenants under the defendant-petitioner. He then submits that the High Court Division rightly found that without taking evidence and without considering the materials on record under Order 7 Rule 11 of the Code of Civil Procedure can not be rejected. He then submits that the High Court Division rightly held that the plaintiffs the plaintiffs predecessor-in-interest one Md. Yousuf was a monthly tenant of Provabati Chattarjee who appointed one Shaieswar Bhattacharjee as constituted Attorney in respect of the suit property. Md. Yousuf was a tenant under Provabati Chattarjee in the year 1956 the said Shaileswar Bhattacharjee being constituted attorney of Provabati Chattarjee entered into an agreement for sale of the suit property with Md. Yousuf and after his death his heirs namely the present plaintiffs have been possessing the suit property all through and as such the plaint is not barred by any provision of Order 7, Rule 11. He then submits that the High Court Division rightly held that from the plaint itself it was found that one Salaiman Chowdhury who claimed to be land Lord sold the suit property in auction for arrear of rents and in such auction sale the defendant No.1-S.M. Hossain purchased the suit property and against such auction sale the said Provabati Chatterjee through her constituted attorney Shaileswar Bhattacharjee instituted a suit for setting aside the exparte decree and that proceeding is still pending before another Court for disposal and the same is now sub-judice in Other Sit Nos. 21 of 1956 and 52 of 1957 and as such the High Court Division committed no error of law discharging the Rule and affirming the order of the learned Sub-Ordinate Judge,1^st Court, Chittagong. Referring to the decision reported in 11 MLR (AD) 58 Mr. Bhuiyan submits that the rejection of plaint on ground of maintainability of the suit is not permissible before filing of written statement. He then refers to the decision of Abdul Jalil Miah (Md) Vs. Niropama Ritchil and others reported in 49 DLR (AD) 61 at page 63, paragraph No.9 and submits that the plaintiff having been inducted in the suit property as tenant he cannot claim title by adverse possession which implies that it had commenced in wrong and is maintained against right and as such in the instant case the High Court Division rightly rejected the application for rejection of plaint under Order 7, Rule 11 of the C.P.C. as the plaintiff as the plaintiff in the instant suit land was not asserting his adverse possession rather he entered into the suit land as tenant so he is predecessor-in-interest. He then submits that the plaint is liable to be rejected being barred by law must be apparent from the statement made in the plaint itself and not from the written statement or any other material other than that has been put in the plaint. He then submits that both the Courts below rightly found that the plaint does not disclose any statement to be barred by any law. In support of his contention he has cited to the decision of the case of Abdul Malek Sawdagar Vs Md. Mahbubey Alam and others reported in 57 DLR(AD) 18 and Santipada Datta & others Vs Satish Chandra Das and others reported in 54 DLR (AD)173 at page 175, paragraph Nos.9-11.

13. We have heard the learned Counsels of both sides, perused the judgment and order passed by the trial Court, the impugned judgment and order passed by the High Court Division and other connected papers on record. On perusal of the plaint it appears that admittedly the predecessor of plaintiff-respondent Nos.1-6-Provabati Chatterjee, Mohammed Yousuf and their uncle Abdul Matin Chowdhury rented the suit building at a monthly rent of Tk.70/- in the year 1947 from defendant No. 1-respondent No.7 (Provabati Chatterjee) was the owner of the suit property. One Md. Solaiman Chowdhury claiming to be the owner of the suit land got an ex parte decree in S.C.C. Suit No.516 of 1993 against the defendant No.1 Provabati Chatterjee and the suit property was sold in auction in Money Execution Case No.343 of 1954 to the defendant No.2-appellant. The defendant respondent No.7-Provabati Chatterjee filed Miscellaneous Case No.69 of 1956 for setting aside the auction sale but the case was dismissed against which Miscellaneous Appeal No.1 of 1960 was preferred which was also dismissed. Thereafter the respondent No.7 preferred Civil Revision No. 1225 of 1960 in which the Rule was discharged and the auction sale was affirmed. Thereafter the respondent No.7 filed Other Class Suit No.21 of 1956 renumbered as No.52 of 1957 which was dismissed and subsequently he preferred an appeal against the judgment and order of dismissal which was also disallowed and the First Appeal No.939 of 1967 filed before the High Court Division was allowed and ultimately the suit No.52 of 1957 was sent back on remand to the trial Court. During the pendency of the aforesaid suit plaintiffs further entered into a sale agreement for purchasing the suit land through the constituted attorney of defendant No.1 and subsequently the attorney refused to execute the kabala on 07.01.1972 and since then the plaintiff-respondent Nos.1-6 are continuing in their adverse possession by asserting their own title. The defendant No.2-appellant filed two rent suits against the father of plaintiff No.1 respondent No.6 being Money Suit Nos.92 of 1960 and 97 of 1966 and against these two suits Civil Revision Nos.1225 of 1960 and 1142 of 1969 were preferred respectively and both these two revisions were heard analogously and Rules were discharged. Thereafter the respondent Nos.7-27 threatening with the respondent No.1-6 with their possession. The plaintiff-respondent Nos.1-6 instituted Other Class Suit No.96 of 1996 in the 1st Court of Subordinate Judge, Chittagong for a declaration that the plaintiff-respondent Nos.1-6 had title by adverse possession in the suit property, for confirmation of their possession and for their consequential relief.

14. So it appears that the defendant-appellant is very much land lord of the plaintiff-respondent Nos.1-6. On the facts stated in the plaint it appears that the plaintiff-respondent Nos.1-6 are the tenant under the defendant No.2-appellant claiming to be the owner of the suit land having obtained decree in the S.C.C. Suit No.516 of 1993 and the defendant No.2-appellant purchased the suit land in auction in Money Execution Case No.343 of 1954 and the appeal filed by the respondent No.7 was also dismissed and C.R. Case No. 1225 of 1960 in which the Rule was discharged by the High Court Division and thereby trial Courts order was affirmed and confirmed the auction sale. So admittedly the defendant-appellant being owner of the suit land is the land lord of the plaintiffs. It is also appears that through a constituted attorney of defendant No.1 subsequently the plaintiff respondent Nos.1-6 entered into an agreement for sale for purchasing the suit land during the pendency of the Suit No.21 of 1956 but the constituted attorney refused to execute the kabala on 07.01.1972 and since then the plaintiff-respondent Nos.1-6 are continuing in their adverse possession by asserting their title. This is the assertion of the plaintiff that they having acquired title by adverse possession though admittedly they are predecessor entered into the suit land as tenant and status of the tenancy is very much sub-judice in the Other Sui No.21 of 1956. The estoppel as describe in this section is known as tenant's estoppel or estoppel by contract. In the case of Hajee Abdus Sattar Vs. Mahiuddin & ors reported in 38 DLR (AD) 97 where the Appellate Division held that "when a person enters into possession of immovable property as a tenant of another person there neither he nor anybody claiming throng him shall be permitted during the continuance of the tenancy to deny the landlord’s title however defective that title might be. This necessarily implies that in case the tenant sets up a claim of title in himself he shall first surrender possession to the person from whom he had taken it". The Appellate Division in the case of Haji Kasimuddin Mandal being dead his heirs Afroza Bewa and others Vs Md. Jalaluddin Pramanik reported in 48 DLR (AD) 205 retreating the same principle holding that "A tenant cannot set up title to a property of which he is a monthly tenant without surrendering possession to his landlord."

15. In the instant case from the plain reading of the plaint it appears that the plaintiff-respondent Nos.1-6 are admittedly inducted into the suit land as tenant but with the subsequent facts of entering into a contact of agreement for sale with the constituted attorney of the land lord who subsequently refused to execute the deed of sale would not take the tenant plaintiff-respondent Nos.1-6 owner of the suit property by adverse possession. In such a case plaintiff-respondent Nos.1-6 would be estopped from raising the plea of adverse possession as we have already noticed from the aforesaid decisions.

16. Under Order 7 Rule 11 of the Code of Civil Procedure a plaint may be rejected on a plain reading of the plaint. But in an appropriate case, while the proceeding itself is an abuse of the process of the Court, the Court having recourse of Section 151 will be competent to reject the plaint or strike out part of the relief prayed for. In the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd. reported in 20 BLD (AD) 278 and the case of Rasheda Begum Vs. M.M. Nurussafa and others reported in 24 BLD (AD) 223 the Appellate Division decided to the same effect.

17. In the instant case it appears that the plaint of the plaintiff-respondent's suit be rejected even under the inherent power of the Court under Section 116 of the Code since the plaintiff is estopped to claim from his adverse possession against the defendant-appellant before us.

18. We have already discussed above that during the pendency of Title Suit No.52 of 1957 and also in view of the Civil Revision No. 1225 of 1960 and Civil Revision No. 1142 of 1969 the status of the plaintiff respondent Nos.1-6 there is a prima facie case that the plaintiff respondent Nos.1-6 are the tenants under the defendant-appellant or his predecessor-in-interest. In the case of Hajee Abdus S attar Vs. Mahiuddin and others reported in 6 BCR (AD) 71 where it is held that the tenants are estopped from raising their title of adverse possession against the land lord. In the instant case it appears that the Title Suit No.96 of 1996 is barred by law since admittedly the plaintiff-respondents are tenants of the defendant-appellant. In the case reported in 20 BLD (AD) 278 the Appellate Division while discussing on the rejection of the plaint observed that-
"The plaintiffs therefore can not now be allowed to proceed with the present suit simply because that in the kabala of defendant No.1 certain explanations have been given for inclusion of certain lands. It appears that on fraud has been practiced upon the Court by the defendants in the earlier suit. The onus of proving their title and possession rest with the plaintiffs which they filed to discharge in their earlier suit even upto the Appellate Division. When this is the position the present suit can not be allowed to be proceeded further. As the ultimate result of the suit is as clear as day light such a suit should be properly buried at its inception so that no further time is consumed in a fruitless litigation. When the ultimate result is clear, the plaintiffs can not be allowed to re-open the same matter afresh after loosing upto the Appellate Division. This is merely a gambling in litigation which can not be allowed. The High Court Division thoroughly considered very aspect of the matter and rightly found that the present suit is barred by law."

19. From the above discussions and findings we are of the view that the High Court Division committed an error of law in discharging the Rule. As we have already observed that a plaint may be rejected under Order 7, Rule 11 from the plain reading of the plaint. But in exceptional cases a plaint may also be rejected under inherent power of the Court under Section 151 of the Code when the suit is barred by law as in the instant case. For the aforesaid reasons we find merit in the appeal.

20. In the result, the appeal is allowed without any order as to cost. The impugned judgment and order dated 16.08.2000 passed by a Division Bench of the High Court Division in Civil Revision No.1586 of 1998 is hereby set aside. The application under Order 7, Rule 11 is allowed rejection of the plaint of the plaintiff.
Accordingly, the Civil Petition for Leave to Appeal Nos. 94-95 of 2005 are also disposed of in terms of the judgment in this civil appeal.
Ed.

S. M. Mahbubullah Vs. The State and another, (Kazi Md. Ejarul Haque Akondo, J.)

Case No: Criminal Miscellanous Case No. 14659 of 2009

Judge: Zinat Ara, J And Kazi Md. Ejarul Haque Akondo, J

Court: High Court Division,

Advocate: Mr. Md. Shibbir Ahmed, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: S.M. Mahbubullah

Respondent: The State and another

Subject: Anti Corruption Commission Act

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Zinat Ara, J

And

Kazi Md. Ejarul Haque Akondo, J

Judgment on

05.06.2017

}

S.M. Mahbubullah

. . . Accused-petitioner

(on bail)

-Versus-

The State and another

…Opposite parties

Anti Corruption Commission Act (V of 2004)

Section 32

Anti Corruption Commission Rules, 2007

Rule 15

There is no such provision in giving the authority to the ACC to give sanction to submit chare-sheet being cwiZzó in a case where the investigating Officer after thorough investigation submitted final report to it; rather there are 02 types of sanctions mentioned in section 32 of the ACC Act, 2004, that to say, (i) No Court shall take cognizance of the offence unless there is sanction from the ACC and (ii) Sanction for filing charge-sheet before the Court as reconfirmed in rule 15(4) of the ACC Rules, 2007 which runs as follows: Ó15(4) AvBb I GB wewagvjvi weavbejx mv‡c‡¶ `ybx©wZ msµvšÍ Aciva Z`‡šÍi ci Z`šÍ Kvix Kg©KZ©v KZ©„K Awfhy‡³i wei“‡× wePvi mycvwik Kwiqv Dchy³ Av`vj‡Z Awf‡hvMbvgv `v‡q‡ii †¶‡ÎB †KejKwgk‡bi cye©vby‡gv`b MÖnY Avek¨K nB‡e|Ó . . . (26)

Code of Criminal Procedure (V of 1898)

Section 561A

Penal code (XLV of 1860)

Section 409

In the charge-sheet the Investigating Officer also mentioned that the accused did not commit any offence punishable under section 409 of the Penal Code as he did not commit any crime relating to criminal breach of trust. The Investigating Officer further mentioned that the accused committed irregularities in sanctioning loan through said 37 Bank accounts for which a departmental proceeding has already been initiated against him and he has been dismissed from his service. There is no prima-facie case against the accused-petitioner but the learned Special Judge, Court No.3, Dhaka without considering all the above aspects of the case erroneously framed charge against him under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure, which is an abuse of the process of the Court and as such, the proceeding is quashed to secure the ends of justice. . . . (27 and 28)

Mr. Md. Shibbir Ahmed, Advocate

. . . For the petitioner.

Mr. A.K.M. Fazlul Haque, Advocate

. . . For the opposite party No. 2-ACC

JUDGMENT

Kazi Md. Ejarul Haque Akondo, J: In this Rule, issued under section 561A of the Code of Criminal Procedure, 1898 the opposite parties were called upon to show cause as to why the impugned proceedings against the accused-petitioner in Special Case No.05 of 2009 arising out of Motijheel Police Station Case No. 33 dated 11.04.2004 corresponding to G.R. No.332 of 2004 under section 409 of the Penal Code now pending in the Court of Special Judge, Court No.3, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. At the time of issuance of the Rule the proceedings of Special Case No.5 of 2009 pending before the Court of Special Judge, Court No.3, Dhaka was stayed for a period of 06(six) months from date, which was subsequently extended from time to time.

3. The prosecution case, in short, is that one Shamsul Haque, Principal Officer, Pubali Bank Limited, Motijheel Branch, Dhaka on behalf of concerned Bank as informant lodged a First Information Report on 11.04.2004 against the accused-petitioner alleging, inter-alia, that the accused was the Deputy General Manager (D.G.M) of Pubali Bank Limited, Motijheel Branch, Dhaka Stadium Branch and Naya Paltan Branch. He joined in his service as a Senior Officer on 15.08.1977 and on 24.07.2000 he was posted at Motijheel Branch as an Officer-in-Charge. Thereafter, he being the D.G.M by misusing his official power in an unauthorized way allowed huge excess over limit in different accounts, i.e. over draft accounts, cash credit accounts and other accounts for illegal gain. Due to the said acts of the accused the Bank sustained a loss of Tk.101,73,25,556.20. The accused by misusing his official power has committed criminal breach of trust by allowing excess over limit in different 37 accounts, as described in the table below:

SL Nos.	Account Numbers	Excess Over Limit
1	M/S. Bonak Garments C.A. No.8700	Tk.2,24,85,336.00
2	M/S. Oshik Enterprise C.A. No.9079	Tk.60,20,272.00
3	M/S. MAQ Enterprise C.A. No.7894	Tk.42,18,334.00
4	M/S Ashik Fashion Wear Ltd. C.A. No.8930	Tk.1,02,19372.00
5	M/S. Plasticman Ltd. C.A. No.8957	Tk.2,90,99,378.00
6	Md. Yusuf Hossain, C.A. No.9090	Tk.22,07,436.00
7	M/S. Siddique Textile Mill Ltd. C.A. No.7663	Tk.87,39478.95
8.	M/S. Chaitti Apparels C.A. No.8278	Tk.1,83,20,848.03
9	M/S. Shahin Iqbal, C.A. No.8598	Tk.2,85,000.00
10	M/S. Classic I. Trade C.A. No. 8623	Tk.25,93,012.64
11	M/S. Eradutullah Chowdhury, C.A. No.6349	Tk.6,57,111.62
12	M/S. Shaikh Shahidullah, C.A. No.9171	Tk.13,89,822.00
13	M/S. Shamsur Rahman Chowdhury, C.A. No.8956	Tk.71,94,529.00
14	M/S. Shahnewaz and brothers, C.A. No.8156	Tk.29,50,824.00
15	M/S. Swiss Swaitor, C.A. No.8314	Tk.16,11,829.00
16	M/S. Siddique Textile Ltd. C.C. No.289	Tk.11,34,52515.88
17	M/S. Shohage Packaging, C.C. No.312	Tk.100,77,402.99
18	M/S. MAQ Fine Paper, C.C. No.313	Tk.64,03,666.46
19	M/S. Emdadia Poly Packaging C.C. No.323	Tk.23,87,676.00
20	M/S. Shova Enterprise C.C. No.294	Tk.2,80,522.95
21	M/S. MAQ Paper Industries Ltd. C.C. No.301	Tk.62,27,073.21
22	M/S. Shohag Packaging Ltd.	Tk.4,37,28289.00
23	M/S. MAQ Enterprise Ltd.	Tk.9,17,37,671.00
24	M/S. MAQ Fine Paper Ltd.	Tk.3,42,62,975.00
25	M/S. MAQ Paper Industries Ltd.	Tk.2,93,52,651.00
26	M/S. Tazzarat Group	Tk.6,00,707.00
27	M/S. Tiles Palace	Tk.31,29,130.00
28	M/S. Bright Trading Ltd.	Tk.4,84,562.00
29	M/S. Nalcham International	Tk.60,990.00
30	M/S. Siddique Textile Mills Ltd.	Tk.28,08,22,086.00
31	M/S. Chaitti Apparels Ltd.	Tk.51,73,762.00
32	M/S. Borak Garments	Tk.1,00,33,363.00
33	M/S. Ashik Fashion Ware Ltd.	Tk.2,19,77,766.00
34	M/S. Shohage Packaging Ltd.	Tk.15,74,293.00
35	M/S. Sarker and Co. C.A. No. 3468,	Tk.3,59,000/-
36	M/S. Minfa Travels Ltd. C.A. No. 751,	Tk.38,92,064.00
37	M/S. Kumnam Fashion (BD) Ltd.	Tk.7,57,728.00

4. The petitioner was dismissed from his service on 03.04.2004 and thus, Motijheel Police Station Case No.33 dated 11.04.2004 under section 409 of the Penal Code has been started against the accused-petitioner.

5. Police investigated into the case and after completion of investigation submitted final report being No.355 dated 29.11.2004 against the petitioner finding no prima-facie case against him.

6. On receipt of the said final report the learned Chief Metropolitan Magistrate, Dhaka by his order dated 20.12.2004 accepted the final report and released the petitioner from the proceedings.

7. Thereafter, after about 4 months of submission of final report and near about 3 months after acceptance of the final report, the informant filed a narazi petition before the learned Chief Metropolitan Magistrate, Dhaka on 20.03.2005 praying for further investigation of the case by not accepting the final report. After hearing the same, the learned Magistrate by his order dated 20.03.2005 rejected the narazi petition stating that “e¢b fkÑ¡‡m¡Qe¡u ®cM¡ k¡u c¡¢MmLªa Q¥s¡¿¹ ¢lf¡VÑ 20/12/2004 Cw a¡¢lM ¢h‘ Bc¡ma La«ÑL Nªq£a qCu¡‡Rz Hja¡hØq¡u e¡l¡S£ B‡hce ¢h‡hQe¡l ®L¡e p¤‡k¡N e¡Cz”

8. Being aggrieved by and dissatisfied with the said order dated 20.03.2005 the informant filed a criminal revision before the learned Metropolitan Sessions Judge, Dhaka and the same was numbered as Criminal Revision No.233 of 2005. Thereafter, the said criminal revision was transferred to the Court of learned Metropolitan Additional Sessions Judge, Court No.5, Dhaka for hearing. After hearing the same, the learned Judge by his judgment and order dated 20.02.2007 allowed the criminal revision by setting aside the order passed by the learned Magistrate on 20.03.2005 and directed the concerned Magistrate for taking necessary steps in connection with the case in light of the observations made in the body of the judgment.

9. On receipt of the said judgment and order dated 20.02.2007 the learned 1^st Additional Chief Metropolitan Magistrate, Court No. 2, Dhaka after hearing the parties by his order dated 17.03.2008 directed the concerned Officer-in-Charge of Motijheel Police Station for further investigation of the case by any other officer other than the present Investigation- Officer.

10. Pursuant to the said order of the learned Magistrate, one Md. Shahin Mamun, Sub-Inspector of Motijheel Police Station was appointed as a new Investigation-Officer of the case who himself then filed an application to the Court concerned praying for passing necessary order in respect of investigation of the case by the Anti-Corruption Commission (ACC). After hearing the same, the 1^st Additional Chief Metropolitan Magistrate, Dhaka by his order dated 24.04.2008 rejected the application for transferring the investigation of the case to the ACC opining that “Investigating agency a¡l¡ ®L¡e n¡M¡l j¡dÉ‡j ac¿¹ Ll¡‡h a¡ pÇf§eÑÑ a¡‡cl HM¢au¡lz H ®r‡œ A¡c¡m‡al qÙ¹®rf Ll¡l BCeNa ®L¡e p¤‡k¡N e¡Cz Investigating authority ac‡¿¹l ®r‡œ pÇf§eÑ ü¡d£ez”

11. Thereafter, on transfer, the ACC, Head Office, Dhaka vide Memo No.C/166/08 (Anu O Tadanta-1)/Dhaka/21328 dated 14.07.2008 handed over the case to one A.B.M. Mahbub, Assistant Director of the ACC for investigation. He investigated into the case and after completion of investigation submitted a final report to the ACC finding no prima-facie case against the petitioner. But the ACC disagreeing with the said final report gave sanction to submit charge-sheet against the petitioner under section 409 of the Penal Code and thus, charge-sheet No.1031 dated 24.12.2008 was submitted to the Court concerned.

12. After submission of charge-sheet the case was transferred to the learned Special Judge, Court No. 3, Dhaka for trial and the same was renumbered as Special Case No.05 of 2009. The learned Judge by his order dated 21.06.2009 framed charge against the accused-petitioner under section 409 of the Penal Code by rejecting the application filed by the petitioner under section 241A of the Code of Criminal Procedure, 1898 and fixed the next date on 23.07.2009 for trial.

13. In the circumstances, the accused-petitioner has filed this application and obtained the instant Rule, which is before us for consideration.

14. At the outset, Mr. Shibbir Ahmed, the learned Advocate appearing for the accused-petitioner submits that initially the case was investigated by the police of Motijheel Police Station and after investigation the Investigating Officer submitted final report on 29.11.2004, which was accepted by the learned Chief Metropolitan Magistrate, Dhaka on 20.12.2004. But after 3 months of the same the informant filed a narazi petition before the learned Magistrate on 20.03.2005 and the same was rejected on the same day on 20.03.2005. Being aggrieved by the same the informant filed criminal revision and after hearing the same, the learned Additional Metropolitan Sessions Judge, 5^th Court, Dhaka by his judgment and order dated 20.02.2007 allowed the criminal revision and directed the learned Magistrate to take necessary step in respect of the case relating to narazi petition and further investigation of the case. Pursuant thereto, the learned Magistrate sent the case for further investigation. Ultimately, the Anti-Corruption Commission submitted charge-sheet in the case against the accused-petitioner though the concerned Investigating Officer of the ACC submitted final report to the ACC. But the learned Judge of the trial Court without considering these aspects of the case framed charge against the petitioner under section 409 of the Penal Code which is an abuse of the process of the Court.

15. He next submits that the informant filed the instant case against the petitioner for committing the crime under section 409 of the Penal Code but it appears from the charge-sheet that the Investigating Officer in his report clearly stated that out of 37 Bank accounts 17 accounts were fully adjusted, 16 accounts were re-scheduled by the Bank and against 4 accounts money suits were filed against the borrowers for realization of money, as such, no offence has been disclosed against the petitioner but the ACC without any basis and material satisfaction with a malafide intention gave sanction to submit charge-sheet against him and the learned Judge without considering the same erroneously framed charge against the accused, which is an abuse of the process of the Court and as such, the proceedings started against him is liable to be quashed for the ends of justice.

16. He further submits that the informant in violation of the statutory provision of Bank law filed the instant case against the petitioner though he has not committed any criminal breach of trust as defined in section 409 of the Penal Code. The ACC illegally submitted charge-sheet in the case ignoring the previous investigation reports and the learned Judge of the trial Court without considering and examining the charge-sheet and other materials on record erroneously framed charge against the petitioner under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure which is an abuse of the process of the Court.

17. He also submits that the ACC in violation of the provision of section 32 of the ACC Act, 2004 and the rule 15(1) made thereunder submitted charge-sheet against the petitioner which ought to have been considered by the learned Judge at the time of framing of charge against the petitioner.

18. He lastly submits that there is no prima-facie case against the petitioner as such the proceedings started against him is liable to be quashed for the ends of justice.

19. On the other hand, Mr. A.K.M. Fazlul Haque, the learned Advocate appearing on behalf of the opposite party No.2-ACC frankly concedes that the charge-sheet submitted before the Court is, in fact, a final report as the Investigating Officer after investigation of the case found no prima-facie case against the petitioner but the ACC without assigning any cogent reason and without material satisfaction gave sanction for submission of charge-sheet against the accused-petitioner.

20. We have considered the submissions made by the learned Advocates for both the contending parties and have perused the materials on record.

21. It appears from the materials on record that the case started against the accused-petitioner was initially investigated by the police of Motijheel Police Station and after completion of investigation the Investigating Officer concerned submitted final report therein on 29.11.2004, which was duly accepted by the learned Chief Metropolitan Magistrate, Dhaka on 20.12.2004. Thereafter, the informant of the case filed a narazi petition against the said final report before the learned Chief Metropolitan Magistrate, Dhaka on 20.03.2005. After hearing the same, the learned Magistrate rejected the same on the same day on 20.03.2005 stating that “e¢b fkÑ¡‡m¡Qe¡u ®cM¡ k¡u c¡¢MmL«a Q¥s¡¿¹ ¢lf¡VÑ 20/12/2004 Cw a¡¢lM ¢h‘ Bc¡ma LaÑªL Nªq£a qCu¡‡Rz Hja¡hÙÛ¡u e¡l¡S£ B‡hce ¢h‡hQe¡l ®L¡e p¤‡k¡N e¡Cz” Being aggrieved by the said order, the informant preferred a revisional application before the learned Metropolitan Sessions Judge, Dhaka and the same was numbered as Criminal Revision No. 233 of 2005. After hearing the same, the learned Additional Metropolitan Sessions Judge, Dhaka by his judgment and order dated 20.02.2007 allowed the criminal revision and directed the Magistrate concerned to deal with the case in accordance with the observations so made in the body of the judgment in respect of the narazi petition and further investigation of the case. On receipt of the said order dated 20.02.2007 the learned 1^st Additional Metropolitan Magistrate, 2^nd Court, Dhaka by order dated 17.03.2008 directed the Officer-in-charge of Motijheel Police Station to hold further investigation of the case by any other officer other than the present Investigating Officer. Accordingly, one Md. Shahin Mamun, Sub-Inspector of police was appointed new Investigating Officer, who then filed an application to the learned Chief Metropolitan Magistrate, Dhaka praying for passing necessary order in respect of investigation of the case by the ACC. After hearing the same, the 1^st Additional Chief Metropolitan Magistrate, Dhaka by his order dated 24.04.2008 rejected the application for transferring the investigation of the case to the ACC opining that “Investigating agency a¡l ®L¡e n¡M¡l j¡dÉj ac¿¹ Ll¡‡e a¡ pÇf§eÑÑ a¡cl HM¢au¡lz H ®rœ A¡c¡mal qÙ¹rf Ll¡l BCeNa ®L¡e p¤k¡N e¡Cz Investigating authority ac¿¹l ®r‡œ pÇf§eÑ ü¡d£ez”

22. Thereafter, on receipt of the case record the ACC appointed an Investigating Officer to investigate into the case who after investigation submitted final report to the ACC against the accused-petitioner finding no prima-facie case against him stating as under:

“a¡l hš²hÉ ®lLXÑfœ cª‡ø k¤¢š²pwNaz ¢a¢e a¡l LjÑL¡m£e pju A¢euj L‡‡lR j‡jÑ f‡l¡ri¡‡h ü£L¡l L‡lez a‡h a¡l LaÑªL hÉ¡w‡Ll V¡L¡ A¡aÈp¡v qu¢ez ¢a¢e c¡u£ ee Hje ¢LR¤ ¢qp¡h HS¡q¡‡l pw‡k¡Se Ll¡ q‡u‡R k¡l ¢hÙ¹¡¢la ¢hhlZ Ef‡l E‡õM Ll¡ q‡u‡Rz a¡l H‡qe L¡kÑLm¡‡fl SeÉ ¢hi¡N£u hÉhÙÛ¡ fÊ‡k¡SÉ k¡ C‡a¡j‡dÉ hÉ¡wL LaÑªfr NËqZ L‡l‡Re Hhw a¡‡L ®c¡o£ p¡hÉÙÛ L‡l …l©cä A¡‡l¡f L‡l Q¡L¥l£ ®b‡L hlM¡Ù¹ L‡l‡Rez A¡p¡j£l Afl¡‡dl ¢hhle A¡p¡j£ Se¡h Hp Hj j¡qh¤h Eõ¡q, ¢X¢SHj, f§h¡m£ hÉ¡wL ¢mx, j¢a¢Tm n¡M¡u, ®ØV¢Xu¡j n¡M¡u Hhw fÒVe n¡M¡u LjÑla b¡L¡ AhÙÛ¡u ¢euj h¢qi¨Ñai¡h ¢h¢iæ ¢qp¡hd¡l£cl A¢eu¢ja J A¢a¢lš² Ge p¤¢hd¡ fÐc¡e L‡l A¢euj L®l®Re k¡l SeÉ ¢LR¤ ¢LR¤ ¢qp¡hd¡l£/GZ NËq£a¡l ¢eLV q®a hÉ¡w®Ll f¡Je¡ A¡c¡‡ul SeÉ ¢h‘ A¡c¡m‡al A¡nÊu NËqZ Ll®a q‡µR Hhw hÉ¡w¢Lw l£¢a Ae¤k¡u£ R¡®sl A¡Ja¡u GZ NËq£a¡®cl p¡®b A¡‡f¡olg¡ L®l pjeÄu Ll®a q®µRz Se¡h Hp Hj j¡qh¤h Eõ¡q, p¡‡hL Ef-jq¡hÉhÙÛ¡fL (hlM¡Ù¹L«a), f§h¡m£ hÉ¡wL ¢mx, j¢a¢Tm n¡M¡, ®ØV¢Xu¡j n¡M¡ J eu¡fÒVe n¡M¡, ¢fa¡-jªa ®j¡x q¡¢hh¤õ¡q, NË¡j-g¥mh¡¢sk¡, b¡e¡+®Sm¡-hÐ¡rZh¡¢su¡®L Aœ j¡jm¡ q‡a AhÉ¡q¢a fÐc¡ef§hÑL Aœ j¡jm¡u Hg A¡l HÉ¡S Hj Hg c¡¢M‡ml p¤f¡¢ln Ll¢Rz L¡lZ a¡l ¢hl©‡Ü HS¡q¡‡l h¢ZÑa rja¡l AfhÉhq¡l L®l A¯hdi¡®h hÉ¡w®Ll V¡L¡ A¡aÈp¡®al SeÉ cä¢h¢d 409 d¡l¡l A¢ik¡N j¡jm¡ ac¿¹L¡®m fÐj¡e f¡Ju¡ k¡u¢ez a®h ¢a¢e hÉ¡w®Ll ¢euj h¢qi¨Ñai¡®h ¢h¢iæ GZNËq£a¡®L A¢eu¢ja J Gep£j¡l A¢a¢lš² GZ p¤¢hd¡ fÐc¡e L®l A¢euj L®l®Re k¡l SeÉ a¡l ¢hl©®Ü ¢hi¡N£u hÉhÙÛ¡ fÐ®k¡SÉz A¡p¡j£l ¢hl©®Ü hÉ¡wL La«Ñfr C®a¡jdÉC ¢hi¡N£u hÉhÙÛ¡ NËqZf§hÑL a¡®L hÉ¡w®Ll Q¡L¤l£ ®b®L hlM¡Ù¹ Ll®Rez

Hja¡hÙÛ¡u, j¡jm¡ ac¿¹L¡‡m HS¡q¡‡l ®k pLm abÉ EfÙÛ¡fe L‡l A¡p¡j£l ¢eiæ‡× HS¡q¡l Ll¡ q‡u‡R a¡ p¢WL euz i¥m abÉ fÐc¡e L‡l‡Re Hhw k¡l ¢hhlZ p¡rÉ-fÐj¡‡Z E‡õM Ll¡ A¡‡Rz h¡c£l A¡e¡ A¢i‡k¡N i¥m abÉ fÐc¡e Ll¡u Hhw j¡jm¡ ac¿¹L¡‡m A¡p¡j£l ¢hl¦‡Ü A¡e£a hÉ¡w‡Ll V¡L¡ A¡aÈp¡v h¡ r¢ap¡d‡el A¢i‡k¡N fÐj¡¢Za e¡ qJu¡u Aœ j¡jm¡u Hg A¡l HÉ¡S Hg Hg (Q¤s¡¿¹ ¢lf¡VÑ paÉ) c¡¢M‡ml p¤f¡¢ln L‡l Aœ ac¿¹ fÐ¢a‡hce (p¡rÉ-pÈ¡lL) c¡¢Mm Ll¡ quz”

23. But the ACC without considering the said final report and that of the earlier final report submitted by the police of Motijheel Police Station and without any material satisfaction and any cogent reason mechanically gave sanction under section 32 of the ACC Act, 2004 and rule 15(1) of the ACC Rules, 2007 to submit charge-sheet against the petitioner, which runs as follows:

“ac¿¹L¡l£ LjÑLaÑ¡ La«ÑL c¡¢MmL«a p¡rÉ-pÈ¡lL J AeÉ¡eÉ L¡NSfœ fkÑ¡m¡Qe¡f§hÑL c¤eÑ£¢a cje L¢jne f¢la¥ø q‡u c¤eÑ£¢a cje L¢jne A¡Ce, 2004 Hl 32 d¡l¡ Hhw c¤eÑ£¢a cje L¢jne ¢h¢dj¡m¡, 2007 Hl ¢h¢d-15 Hl Ef-¢h¢d (1) H fÐcš rja¡h‡m A¡p¡j£ Hp, Hj, j¡qh¤h Eõ¡q, p¡hL ¢X, ¢S, Hj, f§h¡m£ hÉ¡wL ¢mx Hl ¢hl©‡Ü cä¢h¢d-409 d¡l¡u Q¡SÑn£V c¡¢M‡ml Ae¤‡j¡ce (Sanction) ‘¡fe Llez j”¤l£ A¡‡cn ew ¢p/166/08(Ae¤x J ac¿¹-1)/Y¡L¡/21328, a¡¢lM 21/12/08 Cw (j§‡m L¢f pwk¤š²)z A¡¢j ¢e‡cÑ¢na q‡u j¢a¢Tm b¡e¡u Q¡SÑn£V ew-1031 a¡¢lM-24/12/08 ¢h‘ A¡c¡m‡a c¡¢Mm L¢lm¡j z”

24. Accordingly, a charge-sheet was submitted before the Court concerned against the petitioner under section 409 of the Penal Code. The aforesaid section 32 of the ACC Act, 2004 is quoted hereinafter:

“32z L¢jn‡el Ae¤‡j¡c‡el Af¢lq¡uÑa¡z-

®g±Sc¡¢l L¡kÑ¢h¢da h¡ A¡f¡aax hmhv AeÉ ®L¡e A¡Ce k¡q¡ ¢LR¤C b¡L¥L e¡ ‡Le, L¢jn‡el Ae¤‡j¡ce (sanction) hÉ¢a‡l‡L ®L¡e A¡c¡ma HC A¡C‡el Ad£e ®L¡e Afl¡d ¢hQ¡l¡‡bÑ A¡jm NËqZ (cognizance) L¢l‡h e¡z

HC A¡C‡el Ad£‡e ®L¡e Afl¡‡dl ac¿¹ f¢lpj¡ç qCh¡l fl ac¿¹L¡l£ LjÑLaÑ¡ A¡c¡m‡a fÐ¢a‡hce c¡¢Mm L¢lh¡l f§‡hÑ L¢jn‡el f§hÑ¡e¤‡j¡ce NËqZ L¢l‡h Hhw L¢jne LaÑªL fÐcš Ae¤‡j¡ce f‡œl HL¢V L¢f fÐ¢a‡hc‡el p¢qa A¡c¡m‡a c¡¢Mm L¢l‡hz”

25. The said rule 15(1) of the ACC Rules, 2007 is quoted hereunder:

“15z j¡jm¡ c¡‡u‡ll Ae¤‡j¡ce fÜ¢az-(1) ac¿¹ fÐ¢a‡hce (p¡rÉ-pÈ¡lL) fl£r¡-¢el£r¡‡¿¹ j¡jm¡u Q¡SÑn£V h¡ Q§s¡¿¹ fÐ¢a‡hce, ®rœj‡a k¡q¡ fÐ‡k¡SÉ, c¡¢M‡ml Ae¤‡j¡c‡el HM¢au¡l L¢jne h¡ L¢jn‡el ¢eLV qC‡a rja¡fÐ¡ç L¢jne¡‡ll Efl A¢fÑa b¡¢L‡hz”

26. But on a plain reading of the above quoted provisions of law it is evident that there is no such provision giving the authority to the ACC to give sanction to submit charge-sheet being f¢la¥ø in a case where the Investigating Officer after thorough investigation submitted final report to it; rather there are 02 types of sanctions mentioned in section 32 of the ACC Act, 2004, that is to say, (i) No Court shall take cognizance of the offence unless there is sanction from the ACC and (ii) Sanction for filing charge-sheet before the Court as reconfirmed in rule 15(4) of the ACC Rules, 2007, which runs as follows:

“15(4) A¡Ce J HC ¢h¢dj¡m¡l ¢hd¡e¡hm£ p¡‡f‡r c¤eÑ£¢a pwœ²¡¿¹ Afl¡d ac‡¿¹l fl ac¿¹ L¡l£ LjÑLaÑ¡ LaÑÑªL A¢ik¤‡š²l ¢hl¦‡Ü ¢hQ¡l p¤f¡¢ln L¢lu¡ Efk¤š² A¡c¡m‡a A¢i‡k¡Ne¡j¡ c¡‡u‡ll ®r‡œC ®Lhm L¢jn‡el f§hÑ¡e¤‡j¡ce NËqZ A¡hÉnL qC‡hz”

27. On perusal of the charge-sheet itself it appears that the Investigating Officer after thorough investigation of the case found that out of 37 Bank accounts 17 accounts were fully adjusted, 16 accounts were re-scheduled by the Board of Directors of the Bank concerned and in respect of the rest 4 accounts money suits have been filed against the borrowers for realization of money. In the charge-sheet the Investigating Officer also mentioned that the accused did not commit any offence punishable under section 409 of the Penal Code as he did not commit any crime relating to criminal breach of trust. The Investigating Officer further mentioned that the accused committed irregularities in sanctioning loan through said 37 Bank accounts for which a departmental proceeding has already been initiated against him and he has been dismissed from his service.

28. In view of the above backdrop, it appears to us that there is no prima-facie case against the accused-petitioner but the learned Special Judge, Court No.3, Dhaka without considering all the above aspects of the case erroneously framed charge against him under section 409 of the Penal Code by rejecting the application filed under section 241A of the Code of Criminal Procedure, which is an abuse of the process of the Court and as such, should be quashed to secure the ends of justice.

29. In view of the above, we find substance in the submissions made by the learned Advocate for the petitioner and merit in the Rule.

30. Accordingly, the Rule is made absolute.

31. The impugned proceedings against the accused-petitioner in Special Case No.05 of 2009 arising out of Motijheel Police Station Case No.33 dated 11.04.2004 corresponding to G.R. No.332 of 2004 under section 409 of the Penal Code now pending in the Court of Special Judge, Court No.3, Dhaka is hereby quashed.

32. Communicate this judgment to the Court below at once.

Ed.

Criminal Miscellanous Case No. 14659 of 2009

S.M. Masud Hasan, Vs. Jud

Case No: CIVIL APPEAL NO.129 OF 2018.

Judge: Hasan Foez Siddique, J.)

Court: Appellate Division ,

Advocate: Mr. Sheikh Rezaul Haque, Advocate, instructed by Mr. Md.Taufique Hossain, Advocate-on-Record.,

Citation: 2019(2) LNJ (AD)

Case Year: 2018

Appellant: S.M . Masud Hasan @ Masud

Respondent: Judge, Artha Rin Adalat No.3, Dhaka and others

Subject: Code of Civil Procedure

Delivery Date: 2020-03-15

APPELLATE DIVISION

(CIVIL)

Muhammad Imman Ali, J

Hasan Foez Siddique, J,

Mirza Hussain Haider, J

Zinat Ara, J

Abu Bakar Siddiquee, J,

Md. Nuruzzaman, J

Judgment on

20-11-2018

}

S.M . Masud Hasan @ Masud:

. . . Appellant.

-Versus-

Judge, Artha Rin Adalat No.3, Dhaka and others

. . Respondents.

CIVIL APPEAL NO.129 OF 2018.

(From the judgment and order dated 08.09.2016 passed by the High Court Division in Writ Petition No.878 of 2004.)

Code of Civil Procedure (V of 1908)

Order XXI, rules 81, 85 and 86

The full amount of the purchase-money shall be paid by the auction purchaser into Court before the Court close on the 15th day from the sale of the property. Rule 86 also requires that in default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit after defraying the expenditure, be forfeited to the Government and the property shall be resold. When the default is made in depositing the balance of the amount as required by Rule 81, the Court ought to order the re-sale of the property. ....(11)

Artha Rin Adalat Ain (VIII of 2003)

Section 5(4) & (5)

In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank Ltd. and others reported in 14 BLD(AD) 197 this Division observed that the Artha Rin Adalat Ain is a special legislation providing for special measures to realise loans given by financial institutions. Section 5(4) of the Act gives Artha Rin Adalat the powers and jurisdiction of a Civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat but only if the Ain does not contain anything different. Identical view has been expressed by this Division in the Case of Islami Bank Bangladesh Ltd. Vs. Alhaj Md. Shafiuddin Howlader and another reported in 20 BLD (AD) 162 stating that according to subsection (4) of Section (5) of the Ain the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under Civil Procedure Code, 1908, subject to the provision of the Ain. Sub- Section (5) of Section 5 thereof makes the provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceedings in an Artha Rin Adalat. In the case of M/S. Antibiotic Stores and others Vs. Subordinate Judge and Artha Rin Adalat reported in 8 MLR(AD) page 4 this Division again observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908. Since the instant auction was held under Artha Rin Adalat Ain, 1990 which did not provide specific procedure to be followed for holding auction and as to time limit for payment of auction money, the Adalat followed the provision of the Code of Civil Procedure rightly. .....(15 and 16)

For the Appellant : Mr. Sheikh Rezaul Haque, Advocate, instructed by Mr. Md.Taufique Hossain, Advocate-on-Record.

For the Respondents No.3 : Mr. Golm Arshed, Advocate, instructed by Mr. Md. Ferozur Rahman, Advocate-on-Record.

For the Respondents No.2 : Mr. Mrinal Kanti Biswas, Advocate, instructed by Mr. Bivash Chandra Biswas, Advocate-on-Record

For the Respondents No.5 : Mr. Nihat Kabir, Advocate instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record.

For the Respondents No.1, 4-12 : Not represented

JUDGMENT

Hasan Foez Siddique, J: This appeal is directed against the judgment and order dated 08.09.2016 passed by the High Court Division in Writ Petition No.878 of 2004 discharging the Rule.

2. The appellant, impugning the orders dated 20.10.1996, 07.01.2004, 08.01.2004 and 15.02.2004 passed by the Artha Rin Adalat No.3, Dhaka in Title Execution Case No.46 of 1995, filed Writ Petition No.878 of 2004 in the High Court Division and obtained Rule. A Division Bench of the High Court Division heard the said Rule. Mir Hasmat Ali, J. discharged the Rule and Shamim Hasnain, J. made the Rule absolute. Then the writ petition was heard by A.K.M. Asaduzzaman, J. who discharged the Rule by the judgment and order dated 08.09.2016. Against which, the appellant has preferred this appeal getting leave.

3. Short facts, for the disposal of this appeal, are that the father of appellant got allotment of the land measuring an area of 11 kathas 10.50 chattaks appertaining to plot No.39 Block-A, Road No.25, Banani, Dhaka ( in short, disputed property) from the then D.I.T., at present, RAJUK on 08.11.1968. On 24.01.1980, the appellant took loan of tk.2,50,000/- from Pubali Bank Ltd. by mortgaging the said land. According to him, he repaid the entire loan amount and Pubali Bank Ltd. issued no objection certificate in his favour. He decided to take loan second time from Shilpa Bank. Thereafter, the Pubali Bank Ltd. filed Title Suit No.94 of 1992 against the father of the appellant and others for recovery of defaulted loan of a sum of tk.7,946/- and got decree on 17.09.1994 from the Artha Rin Adalat No.3, Dhaka. The bank put the said decree in execution in Title Execution Case No.46 of 1995 against the present appellant and others for realization of tk.20,358/-. Accordingly, the disputed property was attached and the Adalat fixed 28.08.1996 for holding auction. Four bidders participated in auction and highest offer was tk.22,05,000/-. The decree holder bank raised objection against the auction stating that the offer was shockingly low. The Adalat cancelled the auction. Thereafter, on 28.09.1996, that is, within one month from the date of cancellation of first auction, the said land was again put in auction and writ respondent No.3 Parveen Sultana offered tk.16,10,000/- which was accepted by the Adalat. She deposited 25% of the auction money. On 09.10.1996, auction purchaser Parveen Sultana filed an application before the Adalat for staying realization of balance auction money till disposal of the F.A. No.330 of 1994 pending in the High Court Division against the aforesaid decree passed in Artha Rin Suit No.94 of 1992 inasmuch as the High Court Division did not stay the execution of the said decree. The Adalat, by an order dated 20.10.1996, suspended the process of realization of the balance auction amount. Thereafter, on 29.04.2001, the Adalat vacated the order of suspension of realization of the balance auction money and proceeded with the execution case. Meanwhile, the record of execution case was called for by the High Court Division in Civil Revision No.891 of 2001, which was finally discharged as not being pressed. On 10.11.2003, First Appeal No.330 of 1994 was dismissed by the High Court Division. On 08.01.2004, the auction purchaser deposited the balance auction amount along with poundage fees. The Adalat, accepting the balance money, confirmed the sale. Thereafter, the appellant, on 24.01.2004, filed application under section 57 of the Artha Rin Adalat Ain praying for cancellation of the auction sale on the grounds that the auction purchaser failed to deposit the balance auction money within 15 days from the date of auction as required under Order XXI Rule 85 of the Code of Civil Procedure and that the auction was held fraudulently and at a shockingly low price. It was contended that at the relevant time, the price of the said land was more than tk.1,0000000/-(one crore). The Adalat, by its order dated 15.02.2004, rejected the said application of the appellant. Then, the appellant, filing the aforesaid writ petition, obtained Rule.

4. The High Court Division, by the impugned judgment and order, discharged the Rule. Thus, the appellant has preferred this appeal after getting leave.

5. Mr. Sheikh Rezaul Haque, learned Counsel appearing on behalf of the appellant, submits that in view of the fact that the auction was held on 28.09.1996 and the auction purchaser deposited 25% of the auction money on the same day but without depositing the rest amount within the time as per provisions of Order XXI rules 85 and 86 of the Code of Civil Procedure on 09.10.1996 she filed application before the Adalat for suspension of realization of balance auction money which was allowed and, finally, the rest auction amount was deposited on 24.01.2004, that is, long after the statutory period, the High Court Division erred in law in discharging the Rule. He submits that the auction purchaser was legally bound to deposit auction amount within 15 days from 28.9.1996, that is, within 13.10.1996, the Adalat erred in law in accepting the rest of auction money long after expiry of stipulated time as provided under Order XXI Rule 85 of the Code of Civil Procedure, the High Court Division erred in law in not making the Rule absolute.

6. Mr. Golam Arhsed, learned Counsel on behalf of the auction purchaser respondent, submits that First Appeal was pending in the High Court Division against decree of the Adalot when auction was held and, knowing about the pendency of the First Appeal, she filed an application for suspension of the execution proceeding and, accordingly, the execution proceeding was stayed, the Adalat rightly allowed the auction purchaser to deposit the rest auction money after disposal of the proceedings arising out of Artha Rin Adalat suit. Mr. Golam Arshed further submits that the provisions under Order XXI rules 85 and 86 of the Code of Civil Procedure are not at all attracted in a proceeding initiated under the provision of Artha Rin Adalat Ain which is a special law.

7. It appears from the materials on record that the instant auction was held on 28.09.1996 and the auction purchaser deposited the ¼th of the auction money on the same day. It further appears from the materials on record that Adalat, considering the application filed by the auction purchaser, stayed the further proceeding of the Execution case on 20.10.1996 stating that against the original decree, First Appeal No.550 of 1994 was pending in the High Court Division. Lastly, after completion of the different proceedings arising out of said suit and Execution case, the auction purchaser deposited the rest amount on 08.01.2004.

8. The provision of Order XXI Rule 85 of the Code of Civil Procedure provides 15 days time for depositing the balance auction amount from the date of holding auction. Since law provides that the balance amount of auction money should be deposited within 15 days from the date of holding auction, it was the statutory obligation of the auction purchaser respondent to deposit the same in time. Order XXI rule 86 of the Code provides the consequence of non depositing the balance auction amount within 15 days, which is, in such circumstances the Executing Court shall proceed for holding auction afresh. Since the aforesaid provision is mandatory in nature, the Adalot was not authorise to extend the time of depositing the balance auction money. The Adalat failed to construe the true spirit of the provisions of Order XXI rules 85 and 86 of the Code of Civil Procedure, thereby, accepted the auction money long after expiry of 15 days.

9. In this regard, Mr. Rezaul relied on the case of Manilal Mohanlal Vs. Syed Ahmed reported in AIR 1954 SC 349. In the cited case it was observed,

“The provision regarding deposit of 25 percent by the purchaser other than the decree –holder is mandatory as the language of the rule suggests. That full amount of the purchase money must be paid within fifteen days from the date of the sale but the decree holder is entitled to the advantage of a set off. The provision of payment is, however, mandatory (Rule 85). If the payment is not made within the period of fifteen days the court has the discretion to forfeit the deposit and there the discretion ends but the obligation of the court to resell the property is imperative. A further consequence of non- payment is that the defaulting purchaser forfeits all claim to the property ---(Rule 86).”

10. Mr. Rezaul’s second citation is the case of Balaram Vs. Ilan Singh reported in AIR 1996 SC 2781. In that case it was observed,

“It is to be noted that the argument that it is only a material irregularity in the sale to attract Rule 90 instead of Rule 85 being mandatory, its non-compliance renders the sale proceedings a complete nullity requiring the executing Court to proceed under Rule 86 and property has to be resold unless the judgment- debtor satisfies the decree by making the payment before the resale.”

11. Similar views have been expressed in the case of Nand Lal Vs. Mt. Siddiquan and others reported in AIR 1957 All page 558. In that case fact was that on 04.11.1953 it was ordered that sale should take place on 23.12.1953 of the property in dispute. On 23.12.1953, sale of the property was held and it was purchased by the auction purchaser applicant. On that day, he deposited 25 percent of the purchase money under Order XXI rule 84. The balance of the purchase money he had to deposit within fifteen days from the date of the sale, i.e. the deposit should have been made by 07.01.1954 at the latest, as required by rule 85 of Order XXI. On 06.1.1954, instead of depositing the money, the auction purchaser prayed for extension of time to deposit the money till 23.1.1954. The court extended the time only by ten days. On 15.01.1954, the remaining amount was deposited. On 23.01.1954, the sale was confirmed and the sale certificate was issued. On 29.01.1954, i.e. after the confirmation of the sale, an application was moved stating that since the money had not been deposited within the statutory period of fifteen days, as required under Order XXI rule 85 the sale should be set aside, and it was the application which gave rise to the application in revision. The executing court held that the sale was a nullity as 75 percent had not been deposited in time and, therefore, it set aside the sale and ordered resale of the property. Against that order, the auction purchaser went to Allahabad High Court. Allahabad High Court observed that “in a case where an auction purchaser fails to deposit the money within fifteen days, there is an imperative duty cast upon the executing court itself to set aside that sale and to order resale of the property”. Order XXI, rule 85 of the Code requires that the full amount of the purchase-money shall be paid by the auction purchaser into Court before the Court close on the 15th day from the sale of the property. Rule 86 also requires that in default of payment within the period mentioned in the last preceding rule, the deposit may, if the Court thinks fit after defraying the expenditure, be forfeited to the Government and the property shall be resold. When the default is made in depositing the balance of the amount as required by Rule 81, the Court ought to order the re-sale of the property.

12. Having examined the language of the relevant provisions and the decisions upon the subject, we are of the view that the provisions of the rules requiring the deposit of 25% of the purchase money immediate, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non-compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25% of the purchase money in the first instance and the balance within 15 days. Non payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The court is bound to re- sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law.

13. Mr. Golam Arshed, submits that the provisions of Order XXI Rule 85 and 86 of the Code of Civil Procedure are not applicable in this case since Artha Rin Adalat Ain is a special law which provides special provisions for execution of the decree passed under the Ain. In this case, the Artha Rin Suit and Artha Rin Execution case were started under Artha Rin Adalat Ain, 1990. Section 5(4) and (5) of the Artha Rin Adalat Ain, 1990 provides that the Adalat shall follow the provisions of the Code of Civil Procedure subject to the provision of the Ain. Contents of section 5(4) and (5) run as follows:

Ò5(4) A_© FY Av`vjZ GKwU †`Iqvbx Av`vjZ (Civil Court ) ewjqv MY¨ nB‡e Ges Code of Civil Procedure, 1908 ( Act V of 1908) G †`Iqvbx Av`vj‡Zi †h mg¯Í ÿgZv I GLwZqvi Av‡Q †mB mg¯Í ÿgZv I GLwZqvi, GB AvB‡bi weavb mv‡c‡ÿ, A_© FY Av`vj‡Zi I _vwK‡e|

(5) GB AvB‡bi wfbœiæc wKQy bv _vwK‡j, A_©FY Av`vjZ Dnvi Kvh©μg cwiPvjbvi e¨vcv‡i Code of Civil Procedure, 1908 (Act V of 1908) G †`Iqvbx Av`vj‡Zi Kvh©μg cwiPvjbv m¤ú‡K© †h weavb Kiv nBqv‡Q Dnv AbymiY Kwi‡e|Ó

14. In Artha Rin Adalt Ain, 1990 there was no such specific provision in the Ain for execution of decree. Section 6(K) of the Ain, 1990, under which the instant suit was decreed and execution case was started, provides,

Ò6K| wWμx ev¯Íevqb| Code of Civil Procedure, 1908 (Act V of 1908) G hvnv wKQyB _vKzK bv †Kb, †Kvb A_© FY Av`vj‡Zi wm×všÍ D³ Av`vjZ KZ…©K Rvix I ev¯Íevqb Kiv nB‡e|Ó

2. In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank Ltd. and others reported in 14 BLD(AD) 197 this Division observed that the Artha Rin Adalat Ain is a special legislation providing for special measures to realise loans given by financial institutions. Section 5(4) of the Act gives Artha Rin Adalat the powers and jurisdiction of a Civil Court, but subject to the provisions of the Act itself. Section 5(5) of the Act makes the Code of Civil Procedure applicable to the proceedings of the Artha Rin Adalat but only if the Ain does not contain anything different. Identical view has been expressed by this Division in the Case of Islami Bank Bangladesh Ltd. Vs. Alhaj Md. Shafiuddin Howlader and another reported in 20 BLD (AD) 162 stating that according to subsection (4) of Section (5) of the Ain the Artha Rin Adalat is a Civil Court having all the powers and jurisdiction under Civil Procedure Code, 1908, subject to the provision of the Ain. Sub- Section (5) of Section 5 thereof makes the provisions of the said Code applicable, notwithstanding anything to the contrary, to the conduct of proceedings in an Artha Rin Adalat. In the case of M/S. Antibiotic Stores and others Vs. Subordinate Judge and Artha Rin Adalat reported in 8 MLR(AD) page 4 this Division again observed that under Section 5(4) of the Artha Rin Adalat Ain, 1990, the Artha Rin Adalat is a Civil Court and subject to the provisions of the Ain, the Artha Rin Adalat have all the powers and jurisdictions under the Code of Civil Procedure, 1908.

16. Since the instant auction was held under Artha Rin Adalat Ain, 1990 which did not provide specific procedure to be followed for holding auction and as to time limit for payment of auction money, the Adalat followed the provision of the Code of Civil Procedure rightly. Consequently, we do not find any force in the submissions of Mr. Golam Arshed.

17. Accordingly, we find substance in the appeal.

18. Thus, the appeal is allowed. Judgment and order of the High Court Division is set aside. The impugned orders of the Adalat are hereby declared to have been passed without lawful authority and are of no legal effect. The Adalat shall proceed with the Execution Case in accordance with law.

Ed.

CIVIL APPEAL NO.129 OF 2018.

(From the judgment and order dated 08.09.2016 passed by the High Court Division in Writ Petition No.878 of 2004.)

S. M. Masud Hossain Dolon and others Vs. Government of Bangladesh and others 2017 (1) LNJ 317

Case No: Writ Petition No. 8252 of 2015

Judge: Moyeenul Islam Chowdhury. J.

Court: High Court Division,

Advocate: Mr. Md. Ziaul Haque, Mr. Md. Motaher Hossain,

Citation: 2017 (1) LNJ 317

Case Year: 2016

Appellant: S. M. Masud Hossain Dolon and others

Respondent: Government of Bangladesh and others

Subject: Writ Petition

Delivery Date: 2017-06-15

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

Ashish Ranjan Das, J

Judgment on

07.12.2016

}

S. M. Masud Hossain Dolon and others

. . . Petitioners

-Versus-

Governemnt of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 102

It is ex-facie clear that the primary school children carrying bags more than 10% of their body weight are exposed to various health hazards and complications. Nobody questions the health problems or hazards arising out of carrying of heavier school bags. But even then, no concrete or tangible steps have been taken by the authorities concerned to reduce the weight of school bags of the primary school children effectively as yet. . . . (27)

Constitution of Bangladesh, 1972

Article 35(5)

What we are driving at boils down to this: burdening the primary school children with school bags weighing more than 10% of their body weight amounts to subjecting them to cruel treatment. This is a manifest violation of Article 35(5) of our Constitution. Needless to say, this is also a violation of human rights. Under the circumstances, we can not remain oblivious and unmindful of the cruelty and violation of human rights that are being perpetrated upon our kids. ...(28)

Constitution of Bangladesh, 1972

Article 102

Admittedly there is no specific law regulating prohibition of use of school bags more than 10% of the body weight of the primary school children. We have already observed that in the absence of any such law, our kids are exposed to health hazards and as a matter of fact, they are suffering various health ailments. So the enactment of a specific law to that effect is indispensably necessary. . . . (32)

Constitution of Bangladesh, 1972

Article 102

The respondents are hereby directed to take immediate necessary steps so that a specific law is enacted prohibiting use of school bags more than 10% of the body weight of the primary school children within a period of 6(six) months from the date of receipt of a copy of this judgment. However, as an interim measure, that is to say, till enactment of a specific legislation in this regard, the respondent no. 3 is directed to issue a new circular in supersession of the earlier one (Annexure-‘1’ to the Affidavit-in-Opposition) embodying therein the provisions relating to the establishment of a monitoring cell and providing for a punitive mechanism in case of failure to comply with the terms thereof by the primary school authorities within a period of 30(thirty) days from the date of receipt of a copy of this judgment. The respondent no. 5, being the Secretary of the Administrative Ministry of the respondent no. 3, shall bear all the responsibility in this respect. . . .(34)

Mr. Mohammed Ziaul Hoque, Advocate in person with

Mr. S. M. Masud Hossain Dolon, Advocate in person,

Mr. Anwarul Karim, Advocate in person and

Ms. Nusrat Jahan, Advocate

. . . For the petitioners.

Mr. Md. Motaher Hossain (Sazu), DAG with

Ms. Purabi Rani Sharma, AAG and

Ms. Purabi Saha, AAG

. . . For the respondent No. 3.

JUDGMENT

Moyeenul Islam Chowdhury, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioners, a Rule Nisi was issued calling upon the respondents to show cause as to why a direction should not be given upon them to enact a specific law prohibiting use of school bags more than 10% of the body weight of the primary school children as the carrying of school bags weighing more than 10% of their body weight will have serious short-term and long-term clinical effects on their bodies and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. The case of the petitioners, as set out in the Writ Petition, in short, is as follows:

The petitioners are regular practitioners as Advocates of the High Court Division of the Supreme Court of Bangladesh. As representatives of the people of the locality, they have come up with the instant Writ Petition in order to protect child right and child health and to redress a public wrong or public injury. Furthermore, the children of the petitioners are studying in different schools and being conscious fathers, they have invoked the writ jurisdiction of the High Court Division under Article 102 of the Constitution for securing the good health of their children. In Bangladesh, the school pupils are carrying heavy school bags due to which they suffer irreversible back problems and a growing number of children are developing irreversible back deformities because of the weight of the bags they carry to their respective schools. Pupils routinely carry their bags filled with heavy books, sports kit and packed lunchboxes. Medical experts say that almost half of the children suffer back pain by the age of 14. Health experts further say that the school children risk long-term health complications and ultimately permanent damage if they regularly carry more than 15% of their body weight over their shoulders. Many youngsters carry as much as 20% of their body weight to and from school. According to the health experts, the maximum weight a child should carry is one-tenth (10%) of his body weight including all things like his water bottle, lunchbox etc. In case of overweight bag, the immediate ill-effects are back, neck and shoulder pain along with tingling, numbness and weakness in the hands. There may also be fatigue and an early development of poor posture. The long-term ill-effects will be strain on the neck and shoulder leading to headache, damage to the spine giving rise to problems like kyphosis-hunched back or spine bent forward; scoliosis-spine bent sideways; reducing breathing capacity due to pressure on the lungs resulting from a forward or sideways bent posture and so on and so forth. In India, a bill titled “The Children School Bag Bill, 2006” was tabled in the Rajya Sabha providing that kindergarten children should carry no bags and for older children, school bags should not be heavier than 10% of their body weight. The bill also specifies on the part of the school authorities to provide lockers; because children may bring other items, such as sports equipment and other books etc. that need to be stored. The State of Maharashtra of India has already formulated some guidelines and stated that the weight of the school bag will not be more than 10% of the body weight of the children. However, in Bangladesh, there is no specific law in this regard. In the absence of any such law, the school authorities are exercising autocracy in running their schools and the pupils are suffering health problems. The Directorate of Education makes syllabi for the primary classes, but the school authorities unhesitatingly and illegally add two or three subjects to the syllabi made by the Directorate of Education. Anyway, the matter was discussed in our Parliament on 05.07.2015 and the Minister for Education also admitted that there are no guidelines for school bag weight. The overweight of school bag has short-term and long-term clinical effects and if the criteria for school bag weight are not set, the children will face immediate health problems. Eye-catching news-items have been published in various newspapers on this issue. This being the scenario, for securing a unique education system and for protecting child health and child right, a specific law should be framed for determining school bag weight. In the absence of any law in this respect, the school authorities force the children to bring all the books and exercise books (note books) regularly. Since the school authorities add additional subjects to the curriculum prescribed by the Government, the children are bound to carry all the books and other materials every day. The scenario is more painful and vivid in English medium schools. Forcing the children to carry heavy school books is a violation of human rights. So the respondents are duty bound to enact a specific law for school bag weight.

3. In the Supplementary Affidavit filed on behalf of the petitioners, it has been averred that the Directorate of Education (School), Delhi, India issued a circular on 06.05.2014 making some suggestions for reducing the weight of school bag. Besides, the Education Bureau, Hong Kong made some guidelines considering that overweight school bags would bring additional stress and fatigue to the primary and junior secondary students and as a precautionary measure, students should avoid carrying school bags which exceed 10% of their body weight for a long period of time.

4. The respondent no. 3 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out in the Affidavit-in-Opposition, in short, runs as follows:

The respondents are always engaged in protecting the people’s interest as well as the rights of the children. As such the respondent no. 3 (Director-General, Directorate of Primary Education) issued a circular to all Government and Non-Government Primary Schools of Bangladesh prohibiting use of school bags more than 10% of the body weight of the children on 11.12.2014. However, after disposal of the instant Rule by the High Court Division, the respondent no. 3 will secure a fair and unique education system and protect the health and rights of the children in accordance with its directives. The respondent no. 3 must form a cell with a view to monitoring the compliance of the circular dated 11.12.2014.

5. At the outset, Mr. Mohammed Ziaul Hoque, learned Advocate appearing in person before this Court, submits that there is no specific law regarding the school bag weight of primary school children in Bangladesh and in the absence of any such law, the school authorities are exercising autocracy in running their respective schools and the children are compelled to carry heavy school bags which are even up to 20% of their body weight for which they are suffering serious health problems.

6. Mr. Mohammed Ziaul Hoque also submits that the overweight of the school bags has both short-term and long-term clinical effects on the children which pose a serious threat to their shoulder, lungs and bones and if the criteria for school bag weight are not set, they will go through immense health complications.

7. Mr. Mohammed Ziaul Hoque also submits that in the absence of any specific law, the children are forced to carry all the books and exercise books (note books) to their respective schools every day and as the school authorities add subjects of their own choice to the curriculum prescribed by the Government, the burden of school bags has become all the more unbearable to them and this act of forcing them to carry heavy school bags is a violation of human rights and that being so, the respondents are duty bound to frame a specific law in this respect.

8. In support of the above submissions, Mr. Mohammed Ziaul Hoque has drawn our attention to two write-ups, one is titled “Burden of the School Bag: Is Anybody Listening?” written by Seema Shukla Ojha, Assistant Professor, Department of Education in Social Sciences, National Council of Educational Research and Training (NCERT), New Delhi and the other one is headed “Back Problems Due To Heavy Backpacks in School Children” jointly written by Avantika Rai, a Research Scholar and Shalini Agarawal, an Assistant Professor, Department of Human Development and Family Studies, School for Home Science, Babashaheb Bhim Rao Ambedakar (A Central University) Lucknow, India.

9. Per contra, Mr. Md. Motaher Hossain (Sazu), learned Deputy Attorney-General appearing on behalf of the respondent no. 3, submits that the respondent no. 3, in consideration of the gravity of the situation arising out of heavy school bags of primary school children, issued a circular bearing Memo No. fË¡¢nA/f¢lQ¡mL/f.J A./2014/56(139) dated 11.12.2014 (Annexure-‘1’ to the Affidavit-in-Opposition) and by that circular, he instructed all the primary school authorities to see that the primary school children do not carry school bags more than 10% of their body weight and if this Court gives any further directions by disposing of the Rule on merit, in that event, he will implement those directions for the benefit of the primary school children.

10. We have heard the submissions of the learned Advocate Mr. Mohammed Ziaul Hoque and the counter-submission of the learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) and perused the Writ Petition, Supplementary Affidavit, Affidavit-in-Opposition and relevant Annexures annexed thereto.

11. Annexure-‘A’ dated 21.11.2014 is a paper-clipping of “The Daily Prothom Alo” captioned “ú¥‡ml hÉ¡NV¡ h— i¡l£”. This news-item was published as a lead news in that newspaper on that date. The relevant portions of the news-item are worth quoting:

Ô¯‹z‡ji e¨vMUv eÇ fvix, Avgiv wK Avi eB‡Z cvwi G wK GKUv kvwšÍ bq, Kó nq, Avgvi Kó eyS‡Z PvI, †`vnvB covi Pvc KgvI Kó nq, Kó nq|Õ

Kexi myg‡bi Mv‡b dz‡U IVv ¯‹zjMvgx wkï‡`i GB AvwZ© wbQK Kwei Kíbv bq G GK wb‡iU ev¯ÍeZv

XvKv wkï nvmcvZv‡ji K‡qKRb wPwKrmK cÖ_g Av‡jv‡K Rvwb‡q‡Qb, wc‡V e¨_v, †mvRv n‡q `vov‡Z bv cvivi Kó wb‡q wkïiv Zv‡`i Kv‡Q Avm‡Q| G‡`i cÖvq mevB ej‡Q, ¯‹zje¨v‡Mi IRb †ewk| e‡q wb‡Z Kó nq| evsjv gva¨g, Bs†iwR gva¨g, miKvix ¯‹zj, †emiKvix ¯‹zj-me cÖwZôv‡bi wkï‡`i KvQ †_‡KB Zuviv Ggb Awf‡hvM †c‡q‡Qb|

XvKv wkï nvmcvZv‡jiB GK wPwKrmK †kvbv‡jb Zuvi GK wkï †ivMxi Mí| Zv‡Z wkïwUi kvwiixK K‡ói cvkvcvwk dy‡U D‡V‡Q Awffve‡Ki AmnvqZ¡| NUbvwU GgbÑ

wkïwU gv‡S gv‡SB wcV e¨v_vq KvZivq| †Kvb †Kvb w`b e¨_v Nvo ev cv‡qI Qwo‡q c‡o| wkï Aw¯’we`¨v wefv‡Mi wPwKrmK †`‡Lï‡b ej‡jb, wkïwU Zvi mvg‡_©i †P‡q †ewk †evSv e‡q ‡eovq cªwZw`b| GB ‡evSv ¯‹zj e¨v‡Mi †evSv| GB †evSvUv Kgv‡Z n‡e|

gv-evev gyL PvIqv-PvIwq K‡ib| Zvici mvnm wb‡q e‡jb, civgk©c‡Îhw` welqwU wj‡L †`b wPwKrmK, Zvn‡j ¯‹zj KZ©„c¶‡K †evSv‡bv mnS n‡e| wPwKrmK mviIqvi Be‡b mvjvg ZvB-B Ki‡jb|

evsjv‡`‡ki ¯‹zjco–qv wkïiv wVK KZ †ewk †evSv e‡q e‡q GKmgq AmyL evuwa‡q †d‡j‡Q, Zvi †Kvb †Kvb cwimsL¨vb †bB e‡j Rvwb‡q‡Qb XvKv wkï nvmcvZvj KZ©„cÿ| wKš‘ wPwKrm‡Kiv e‡j‡Qb, cvwicvwk¦©K cwiw¯’wZ †`‡Lï‡b wbwØ©avq ejv hvq, mevi Am‡PZbZvq cÖwZw`b evsjv‡`‡ki wkïiv GKUz GKUz K‡i ¸iæZi kvixwiK ÿwZi w`‡K G‡Mv‡”Q|

fvi‡Zi w`wjøi GK ¯‹z‡ji QvÎ eiyb ‰R‡bi Kiæb KvwnwbwU GLv‡b D`vniY wn‡m‡e P‡j Av‡m| w`bUv wQj 2012 mv‡ji 25 Rvbyqvwi| wKQy‡ZB †mw`b Avi e¨v‡Mi fvi eB‡Z cviwQj bv †m| nVvr ¯‹z‡ji wmuwo †_‡K c‡o †Mj| cy‡iv fviZel©‡K Kvuw`‡q †Q‡jwU gvivI †Mj|

G †ÿ‡Î evsjv‡`‡ki wkï‡`i Ae¯’vUv Avm‡j wK, Zv GKbR‡i †evSvi Rb¨ mvwe©K KviY Z_¨-DcvË Luy‡R cvIqv †Mj bv| †KŠZ~nj ‡_‡K GB cÖwZ‡e`K 15 w`b mgq wb‡q K‡qKwU ¯‹y‡ji bvm©vwi †_‡K A÷g †kªwb‡Z co–qv (evsjv I Bs‡iwR gva¨g) wkÿv_©x‡`i e¨vM †g‡c †`‡L†Qb| wPÎUv Ggb ÑIqvixi wKÛviMv‡U©b ¯‹z‡ji GK Qv‡Îi e¨v‡Mi IRb wQj mv‡o Pvi †KwR| B¯‹vU‡bi GKwU ¯‹z‡ji cÖ_g †kªwbi GK Qv‡Îi IRb cvIqv hvq wZb †KwR| avbgwÛi mvZgmwR` mo‡K Aew¯’Z GKwU Bs‡iwR gva¨g ¯‹z‡ji Z…Zxq †kªwb‡Z cov GK Qv‡Îi e¨v‡Mi IRb mv†o Qq †KwR| wbDgv‡K©U-msjMœ GKwU weL¨vZ miKvwi ¯‹z‡ji PZz_© †kªwbi Qv‡Îi e¨v‡Mi IRb wQj mvZ †KwR| †k‡ievsjv bM‡ii GKwU miKvix evwjKv D”Pwe`¨vj‡qi cÂg †kªwbi QvÎxi e¨v‡Mi IRb cvIqv hvq mv‡o mvZ †KwR|

avbgwÛi GKwU Bs‡iwR gva¨g ¯‹z‡ji Z…Zxq †kªwbi Qv‡Îi e¨v‡M AvUwU eB, AvUwU LvZv, †cbwmj e·_,cvwbi d¬v· I wUwdb e· †`Lv †M‡Q| IB wkïwUi AwffveK cÖ_g Av‡jv‡K e‡jb, eB‡qi †P‡q LvZvi IRb †ewk| ¯‹zj KZ©„c‡¶I wb‡`©k Abyhvqx ¯‹zj †_‡K LvZv wKb‡Z nq| †`Lv hvq, GKB wel‡q `y-wZbwU LvZvI wb‡Z n‡”Q|

XvKv wek¦we`¨vjq K¨v¤úv‡m Aew¯’Z GKwU ¯‹z‡ji lô †kªwbi Qv‡Îi e¨v‡M cvIqv ‡M‡Q mvZwU eB, mvZwU LvZv, Wv‡qwi †cbwmj e·, R¨vwgwZ e·, wUwdb e·, cvwbi d¬v· I †¯‹j| IB QvÎ Rvbvq, cÖwZw`b Zv‡`i mvZwU wel‡qi K¬vm nq|

w`wj‡Z †h wkïwU gviv wM‡qwQj, †mB ei“b ˆRb Zvi kix‡ii IR‡bi 40 kZvsk †evSv eBwQj| wKš‘ evsjv‡`‡ki wkï‡`i Kx cwigvb IRb enb Kiv hyw³hy³?

wkïwe‡klÁ I RvZxq †ivM BbwówUD‡Ui wk¶K Ave`yjvn kvnwiqvi ej‡jb, GKRb wkï‡K KLbI Zvi wb‡Ri IRb 10 kZvs‡ki †ewk eB‡Z †`Iqv hv‡e bv| ...

ivRkvwni Mfb©‡g›U j¨ve‡iUwi ¯‹z‡ji mnKvix wk¶K AvRwgiv LvZzb e‡jb, cvV¨µg Abyhvqx eB Avb‡j IRb †ewk nIqvi K_v bq| wkïiv A‡bK mgq †KvwPs‡qi Rb¨ eB-LvZv enb K‡i A_ev †bvU eB, MvBW eB wb‡q Av‡m| G‡Z IRb ev‡o| Z‡e wZwb e‡jb, mßv‡n `y‡Uvi †ewk evwoi KvR bv †`Iqvi K_v ejv n‡jI †Kvb †Kvb wk¶K G wb‡`©kbv gv‡bb bv| d‡j wkï‡`i Ici evowZ Pvc c‡o|

XvKv wek¦we`¨vj‡qi wk¶v M‡elbv BbwówUD‡Ui mv‡eK cwiPvjK wmwÏKzi ingvb cÖ_g Av‡jv‡K e‡jb, kn‡ii ¯‹z‡j e¨v‡Mi IRb †ewk| Z_vKw_Z wKÛvi Mv‡W©b I bvgKiv ¯‹zj KZ©„c‡¶i m‡½ A‡bK mgq cÖKvkbv ms¯’v¸‡jvi †hvMmvRk _v‡K| `yB c¶ wg‡j cvV¨eB‡qi evB‡i evowZ eB Ry‡o ‡`q| wZwb, e‡jb DbœZ †`‡k cvV¨eB‡qi evB‡iI A‡bK eB eB cov‡bv nq| Z‡e †m¸‡jv wkï‡`I cÖwZw`b ¯‹z‡j e‡q Avb‡Z nq bv| wkïiv MÖš’vMvi †_‡K eB †bq, g‡bi Avb‡›` c‡o| wk¶K gv‡S gv‡S Mí”Q‡j `y-GKUv cÖkœ K‡i ey‡S †bb, wkïiv eB co‡Q wK bv|

e½e›ay †kL gywRe †gwW‡Kj wek¦we`¨vj‡qi wkï wefv‡Mi cÖavb I evsjv‡`k †cwWqvwUªK A¨v‡mvwm‡qk‡bi gnvmwPe mwn`yjv e‡jb, wc‡V-Nv‡o e¨v_vi Kvi‡b †h fvix e¨vM, A‡b‡KB Zv eyS‡Z cv‡ib bv| d‡j ev”Pv‡K A‡bK †`wi‡Z wPwKrm‡Ki Kv‡Q wb‡q Av‡mb|

‡ewk †evSv eB‡j wK ÿwZ n‡Z cv‡I Rvb‡Z PvB‡j wkïwe‡klÁ Ave`yjøvn kvnwiqvi e‡jb, w`‡bi ci w`b fvwi e¨vM eB‡j wki`vuovi ¯^vfvweK Ae¯’vb bó n‡q hvq| Pvc co‡Z co‡Z `yB nv‡oi gvSLv‡b big c`v_© ïwK‡q hvq| G‡Z `xN©¯’vqx wc‡V e¨v_v, wcV †eu‡K hvq, nv‡o dvUj aiv I wkïi wVKg‡Zv †e‡o DV‡Z bv cvivi g‡Zv ¸iæZi mgm¨v †`Lv w`‡Z cv‡i|

KiYxq Rvb‡Z PvB‡j wPwKrm‡Kiv e‡j‡Qb, wkï‡`i evPuv‡Z n‡j wk¶vi gvb evov‡Z n‡e, †evSv Kgv‡Z n‡e| †mUv wKfv‡e n‡e Zv Luy‡R †ei Ki‡Z n‡e mswkøó‡`iB| ¯‹zj KZ©©„c¶‡`i †evSv‡Z n‡e| AwffveK‡`i m‡PZb nIqv `iKvi|

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wPwKrm‡Kiv Zvr¶wbK `ywU civgk© w`‡q‡Qb| GK. me ¯‹z‡j hw` wbivc` cvwbi mieivnUzKz Kiv hvq, Zvn‡j wkï‡`I AšÍZ cvwbi d¬v·wU e‡q †bIqvi KóUv †_‡K gyw³ †`Iqv hvq| `yB. e¨v‡Mi IRb Kgv‡Z wKQz wKQz eB ¯‹y‡j ivLvi e¨e¯’v Kiv| Avi wk¶vwe‡`iv †Rvi w`‡jb, cvV¨eB‡qi m¤ú~iK, †bvU I MvBW eB‡K e¨v‡M XzKv‡Z bv †`Iqvi Ici|Ó

12. Annexure-‘B’ is a write-up titled “The ill-effects of carrying heavy schoolbags” written by one Kriti Saraswat which was downloaded from the internet. This write-up has extensively dealt with the ill-effects of carrying schoolbags by the school children. For proper and effectual adjudication of the Rule, the material portions of the write-up are quoted below:

“The vacations are over and it’s time for children to head back to school. But one of the reasons they may dread going back could be the heavy schoolbags they have to carry on their delicate shoulders. This can not only hamper their studies but also cause back and posture problems. Says Dr. Zinal Unadkat, ‘Children lose interest in coming to school with the stress of carrying heavy bags. Their mind is burdened with the weight of the books and this leads to low attention span.’

So what should be the ideal weight of schoolbags?

According to Dr. Zubeir Patel, the maximum weight children should carry is one-tenth (10%) of their body weight including all things like their water bottle, lunchbox, etc. But the trend these days seems to be 20%, says Dr. Zinal.

What happens when the weight exceeds the said limit?

‘Carrying very heavy backpacks can lead to musculoskeletal problems, especially if children carry the bag on one shoulder. It puts extra pressure on one side, tilting the spine,’ she says. Dr. Zinal also points out that keeping the bag down and then carrying it again is more dangerous for a growing spine than continuously walking with static weight.

Dr. Patel explains, ‘To carry a heavy bag, the child has to lean forward. This leads to developing a bad posture. The spine is a stack of bones called the vertebral column with the bones separated by a cartilage called the inter vertebral disk and held upright by the muscles and ligaments around it. The excess weight puts undue stress on the muscles, ligaments and disk thus damaging them. The alignment of the column is also disturbed causing it to bend, mostly forward or sideways.’

In other words, a heavy bag puts the child’s health and physical development at risk which can hamper his/her overall growth.

…

What immediate and long-term harms can it cause on the child’s health?

Immediate ill-effects:

Back, neck and shoulder pain along with tingling, numbness and weakness in the hands.

Fatigue and an early development of poor posture.

Long-term ill-effects:

Strain on the neck and shoulder leading to headache.

Damage to the spine giving rise to problems like kyphosis-hunched back or spine bent forward.

Scoliosis-spine bent sideways.

Reduced breathing capacity due to pressure on the lungs resulting from a forward or sideways bent posture.

Back pain and muscle spasms as young adults which can be traced back to heavy schoolbags.

Every bone has a growth centre or point from which growth of the bone takes place as per age. Carrying excess weight could damage these growth centres leading to stunted or abnormal growth of the bones of the children.

Here are some useful suggestions by Dr. Smarajit Chakrabarty

· A backpack is usually more comfortable than a bag that puts strain on only one shoulder, but even a backpack shouldn’t be overloaded.

· When buying a bag, buy a sturdy, well-designed bag with wide, padded shoulder straps that reduces pressure on the neck and shoulder area. Buy a bag with adjustable straps which can be altered as the child grows.

· Check your child’s posture after he has put the bag on. If you notice that your child is leaning forward or slouching, check if the bag is too heavy or if it has been packed incorrectly.

· Make sure your child is only carrying the items he needs for school that day─ remove any unnecessary books and equipment.

Other tips to reduce weight

· School authorities should make it mandatory for students to carry light bags.

· There should be lockers where students can keep their books and other things which are only needed in the classroom.

· Schools can allow students to carry one big notebook with sections for all subjects instead of different ones for various subjects.

These are a few possible solutions that teachers and parents can implement in order to reduce the weight of their kids’ schoolbags. It is important that they understand the gravity of this situation before it is too late.”

13. Annexure-‘C’ is also a paper-cutting of “The Daily Prothom Alo” dated 27.07.2015. The news-item is captioned “i¡l£ ú¥mhÉ¡N hqe Ll‡a f¡lh e¡ jq¡l¡‡ÖVÊl ¢nöl¡”. The relevant portion of this news-item runs as under:

“i¡l‡al jq¡l¡ÖVÊ l¡‡SÉ plL¡l ¢pÜ¡¿¹ ¢e‡u‡R, l¡‡SÉl ú¥mfs¤u¡ ¢nöl¡ a¡‡cl ®c‡ql JS‡el 10 na¡w‡nl ®h¢n i¡l£ hÉ¡N hqe Ll‡a f¡l‡h e¡z l¡‡SÉl pw¢nÔÖV ¢hi¡‡Nl plL¡¢l LjÑLaÑ¡l¡ paLÑ L‡l ¢c‡u Bp¢R‡me, i¡l£ hÉ¡N hq‡el L¡l‡Z ¢nöl¡ LÓ¡¿¹ q‡u fs‡R Hhw a¡‡cl n¡l£¢lL r¢a q‡µRz Mhl ¢h¢h¢p J HHg¢flz”

14. Annexure-‘D’ is an online newspaper, namely, Banglanews 24.com dated 30.07.2015. The title of a news-item therein is “¢ed¡Ñ¢la ®h¡XÑ hC ¢e‡u ¢nö‡cl ú¥‡m k¡Ju¡l BqÆ¡e”. It transpires from Annexure-‘D’ that on 05.07.2015, there were deliberations in our Parliament as to the ill-effects of carrying heavy school bags by the school children and one Member of Parliament, namely, Ms. Nurjahan Begum expressed herself on the issue as under:

“¢h‡no‘ ja¡j‡al Lb¡ a¥‡m d‡l HC pwpc pcpÉ h‡me, HLSe ¢nö‡L a¡l JS‡el ®Q‡u 10 na¡wn Lj JS‡el hÉ¡N hqe Ll‡a q‡a q‡hz AbQ Bjl¡ fË¡uC ®c¢M ¢nö‡cl hÉ¡‡Nl JSe L¡lJ 4 L¢S, 6 ®L¢S h¡ Ns 7 ®L¢S fkÑ¿¹z

¢a¢e h‡me, Bj¡‡cl ®c‡n ®L¡e LÓ¡‡pl ¢nöl¡ La JS‡el hÉ¡N hqe Ll‡h, ®p hÉ¡f¡‡l ®L¡e ¢ecÑne¡ ®eCz ®kje ®L¡e ¢nö ®h¡XÑ ¢ed¡Ñ¢la 3¢V hC b¡L‡mJ ¢nö‡L hqe Ll‡a qu 12 ¢V hCz Hlfl l‡u‡R 8¢V M¡a¡, N¡CX h¤L, ¢Y¢ge h„ J f¡¢el ®h¡amz ph ¢j¢m‡u hÉ¡‡Nl JSe cy¡s¡u Ljf‡r 6 ®L¢Sz k¡ HLSe ¢nöl f‡r ¢eu¢ja hqe Ll¡ LÖVp¡dÉ Hhw T¥y¢Lf§ZÑz”

15. Ms. Nurjahan Begum also said in the Parliament:

“N‡hoZ¡l Lb¡ E‡õM L‡l e§lS¡q¡e ®hNj h‡me, Y¡L¡ ¢nö q¡pf¡a¡‡m E‡õM‡k¡NÉ pwMÉL ¢nö ¢Q¢Lvp¡ ®ph¡ ¢e‡a H‡p hm‡R a¡‡cl ¢f‡Wl hÉ¡b¡, ®p¡S¡ qu cy¡s¡‡a e¡ f¡l¡l LÖV, ®jl¦c‡ä hÉb¡l Lb¡z

Hl L¡lZ ¢q‡p‡h a¡‡cl hqe Ll¡ ú¥m hÉ¡‡Nl JSe ‡h¢n, h‡u ¢e‡a LÖV qu, HC ¢nö‡cl j‡dÉ h¡wm¡ h¡ Cwl¢S Eiu j¡dÉ‡jl ¢nöl¡ l‡u‡Rz”

16. It further appears from Annexure-‘D’ that the Minister for Education Mr. Nurul Islam Nahid felt at one with the Member of Parliament Ms. Nurjahan Begum with regard to ill-effects of carrying of heavy school bags by the children.

17. In 2006, a bill titled “The Children School Bags (Limitation on Weight) Bill, 2006” was introduced in the Rajya Sabha (Rajya Sabha, 2006) to provide for limitation on the weight of school bags, duties and responsibilities of the schools to ensure the compliance of the limitations so imposed and to provide lockers in schools and to issue necessary instructions for handling and carrying of school bags by children and for matters connected therewith or incidental thereto.

18. For the first time, it detailed out all aspects regarding the physical load of school bag. As per the Children’s School Bag Bill of 2006:

· A school bag should not weigh over 10% of the body weight.

· Nursery and kindergarten students should not carry any school bag.

· Schools should issue guidelines and instructions prescribing dimensions and the fabric for the school bag.

· The State Government should provide appropriate lockers at schools.

· Schools violating such provisions are liable to face a penalty of up to Rs. 3 lakh; a subsequent violation may lead to de-recognition.

19. This bill was in line with the international standard followed all over the world and had provisions not only on the weight of the bag, but also the kind of bag ideal for students and the way of handling the bag. But unfortunately this could not become a law till date.

20. Annexure-‘G’ is a compendium of guidelines on reducing the weight of school bags issued by the Education Bureau of Hong Kong. The Education Bureau of Hong Kong issued the following guidelines for reducing the weight of school bags for children:

· Conducting campaign on reducing the weight of school bags to draw the attention of teachers, parents and pupils to the issue.

· Conducting random check on the weight of school bags and informing parents, if bags are found overweight.

· Mobilizing parents to help weighing school bags to arouse awareness of the issue.

· Using other learning materials to replace textbooks in the learning of some topics.

· Reducing the use of workbooks and replacing them by loose-leaf worksheets. Keeping pupils’ new exercise books and issuing them to pupils only when needed.

· Setting the maximum number of assignments for each subject as part of the homework policy.

· Allotting a tutorial period in the timetable for pupils to complete part of their homework at school.

· Scheduling PE and Art and Craft lessons for different days.

· Allowing pupils to wear sportswear instead of school uniforms for days with PE lessons.

· Encouraging the use of drinking-fountains and advising pupils not to bring drinking water to school.

21. It is in the write-up “Burden of the School Bag: Is Anybody Listening?” by Seema Shukla Ojha that now it has become a routine activity in print and electronic media to discuss the load of school bag with the start of every academic session in schools. In this connection, a case was filed in Delhi Court in 2012 following which a committee was formed by the Directorate of Education (DOE) to bring out some measures, which would reduce the weight of school bags (DOE, 2014). DOE accepted that “school children are carrying very heavy bags to school which is affecting their health adversely and that these small children need to be necessarily spared from such burden”. It issued the following guidelines for reducing the weight of school bags for children:

· The school principals and teachers should frame a well-designed time-table for each section of the class so that children do not have to carry too many books or note-books to the school each day and also ensure that the co-curricular activity periods are held along with the other periods on daily basis there by having an equitable distribution of weight of school bags.

· Sensitization of teachers and parents should be done to create awareness of the potential problem of heavy school bags and to make them aware of the health issues, which can arise due to heavy weight of school bags.

· The school should teach correct lifting and carrying techniques as part of their health education programmes and encourage pupils to take responsibility for health and back care.

· Parents should be requested to buy a child-friendly bag which is comfortable to use, that is to say, light in weight. It needs to be reinforced at every level i.e. Principal, Faculty Heads, Teachers and Parents.

· The student should be discouraged from bringing reference books and other books to school especially in senior classes.

· Parents should remind and guide their children to pack the school bag daily according to the timetable and bring only the prescribed books and discourage their ward from carrying unnecessary items to the school.

· Staggered homework schedule should be planned.

22. DOE also instructed all concerned to ensure that the school bags of the children are not heavy and the same should be monitored on regular basis.

23. In the write-up “Burden of the School Bag: Is Anybody Listening?”, it has been further mentioned:

“Children tottering to school with heavy school bags are a common sight. This sight is not common to metropolitan cities alone, it can be seen in small towns and the bigger villages too. Several studies (Dochrell, Kane & O’keefe, 2006; Greenberger, 2001; Melville, 2001; Orr, 2000; Parker-Pope, 2002; Puckree, Silal & Lin, 2004) have proved that heavy load on the back badly affects the health of the children. Some children may develop a permanent stoop due to the heavy pressure on their spinal cord, which would lead to permanent damage to their physical structure and back muscles. It is a medically proven fact that lifting heavy burdens for a long time or distance is not good for anyone, especially children. In the tender age, bones are delicate and excessive weight can misalign the spine leading to offensive skeletal and muscle maturity. Carrying a heavy bag on the back often results in ache in the back and shoulders. Forward bending at the back makes the work of breathing harder. Children carrying bags weighing more than 10 per cent of their body weight have been found to have poorer lung function. A survey conducted by the Associated Chambers of Commerce and Industry of India in the metros during March-April 2012 had also revealed that nearly 58 per cent of children below the age of 10 suffer from mild back pain, caused by their ‘heavy burden’, which can progress to chronic pain (Prakash, 2012, p.1-2). Though the survey was conducted in the metro cities, the plight of children is not different in small cities and towns.

The American Academy of Paediatrics provides recommendation regarding the weight and packing of school bag (American Academy of Paediatrics, 2014). It gives the following tips regarding the issue:

· Chose a backpack with wide, padded shoulder straps and a padded back.

· Pack light. Organize the backpack to use all of its compartments. Pack heavier items closest to the centre of the back.

· The backpack should never weigh more than 10 to 20 percent of your child’s body weight.

· Always use both shoulder straps. Slinging a backpack over one shoulder can strain muscles.

· If your school allows, consider a rolling backpack. This type of backpack may be a good choice for students who must tote a heavy load. Remember that rolling backpacks still must be carried upstairs, and they may be difficult to roll in snow.

Growing weight of school bag and its effect on health of the children has become a matter of grave concern for every parent. School authorities have also been expressing their concern over the issue; but nothing is actually being done to lessen the burden of school bags. Unfortunately, our schooling system has failed to understand the short and long-term harmful effects of this practice such as making the young children carry heavy bags. Another dilemma that we face today is that the teachers are not specific regarding their daily class work, which makes the child carry all the text and notebooks to school every day.

…

There is need for schools to prepare their timetables thoughtfully and effectively. Along with books, children are required to carry their sports and other equipment with them. So if schools provide lockers, children can leave sports equipment, and some books and notebooks in school itself. The school should inform students in advance which books will be needed and which can be left at home and also teach the child to put down the bag when waiting at the bus stop, in the assembly, and to use both straps of the bag, etc. Some schools have already adopted ways to reduce the weight of school bags. There are schools, which don’t send all the books back home; but send only those books, which the students are required to study at home. In some other schools, children are required to carry only white sheets to take notes. They file them in the subject-wise files kept at home. There are a few other schools where lockers have been set up. It is high time to look at this issue seriously and find a common solution.

Apart from the above-mentioned suggestions, some more solutions for this backbreaking burden can be:

· Using loose sheets for homework.

· Individual lockers for students in school.

· Class work notebooks to be kept in school.

· Consecutive period for one subject.

…

There is an urgent need to enact legislation for the whole of the country to save the children from carrying heavy loads on their back. The integration of ICT into education may significantly impact the problem of heavy school bags. However, in the meantime, it is necessary to consider potential strategies to alleviate the problem to whatever degree is possible.”

24. Now let us address the write-up captioned “Back Problems Due to Heavy Backpacks in School Children” by Avantika Rai and Shalini Agarawal. The abstract of this write-up is that students and backpacks are a common sight today. Backpacks are in various sizes, colors, fabrics, and shapes and help children of all ages express their own personal sense of style. Many packs feature multiple compartments that help students stay organized while they carry their books and papers from home to school and back again. Backpacks may strain muscles and joints and cause back pain if they’re too heavy or are used incorrectly. Many students carry school backpacks that exceed 10 percent to 15 percent of their body weight, which put them at risk for back pain and related disorders. Improper backpack use can also lead to poor posture. Girls and younger kids may be especially at risk for backpack-related injuries, because they’re smaller and may carry loads that are heavier in proportion to their body weight. Carrying backpacks increases the risk of back pain and possibly the risk of back pathology. The incidence of school children carrying heavy backpacks is extremely high. The daily physical stresses associated with carrying backpacks cause significant forward lean of the head and trunk. It is assumed that the daily intermittent abnormal postural adaptations could result in pain and disability in school-going children. The American Occupational Therapy Association (AOTA) and the America Academy of Paediatrics advise that students should carry no more than 15% or 10-20% of their bodyweight.

25. However, in that write-up (Back Problems Due To Heavy Backpacks in School Children), it has been clearly and unambiguously stated:

“Heavy school backpacks may deform natural curves in the back. If the curves are interrupted in the lower and middle back, the result is muscle strain and irritation to the rib cage or spine joints. Much of this suffering is brought by bad habits initiated during our younger years may be because of carrying overweight backpacks to school.

The improper use of backpacks can lead to muscle imbalance that could turn into chronic back and neck problems later in life. In the UK, the average backpack weight is 15-20% of their body weight, and some children carry backpacks as heavy as 30% to 40% of their body weight. Many children carry bags over just one shoulder or very low on their backs. This greatly increases the risk of pain and injury. Local authorities have asked schools to check that backpacks are not overweight and are worn properly and over both shoulders. Students at all levels carry schoolbags packed with textbooks, notebooks, library books, geometrical and mathematical instruments, snack boxes, lunch packs and water bottles and so on. The backpack is one of the several forms of manual load carriage that provides versatility and often used by hikers, soldiers, as well as by school children. The backpack is an appropriate way to load the spine closely and symmetrically, while maintaining stability.

…

Overloaded book bags aren’t only responsible for back injuries, although that is the main concern but heavy book bags have also been found to cause neck pain, shoulder strain, headache and a general exhaustion. Book bags that weigh too much may also be to blame for some ankle injuries as they cause their carriers to walk improperly under their oppressive weight. Backpacks can cause pain in the head, neck or face, as well as the hands, the wrists, the elbows, the shoulders, the feet and the ankles. A badly worn backpack can change posture and gait when walking and this compounds the problems. (Singh and Koh 2009) revealed that it is critical to understand the effects of increased backpack weight on children due to their developing bodies. Too much load on the body changes static and dynamic posture as the body tries to overcome the posterior shift in the center of mass.

…

The American Occupational Therapy Association, the American Academy of Orthopaedic Surgeons and the International Chiropractic Paediatric Association suggest that the load should not be more than 10%, the American Physical Therapy Association suggests 15%, and the American Association of Chiropractors suggests 5-10% (Cavallo et al 2002).

…

According to the American Occupational Therapy Association, heavy backpack worn over one shoulder might cause your child to lean to one side, causing his spine to curve and causing him pain. He can prevent spine curvature, and rounded shoulders, by using both straps and distributing the weight of his backpack evenly across both shoulders.

A study was conducted to assess the prevalence of back pain among school children due to carrying heavy backpacks. Repetitive loading on the spine is known to be a risk factor for lower back pain. The researcher investigated the weight of backpacks carried by 237 children aged between 11-12 years from a school in Milan, Italy, for 3 weeks. The median average load that the children carried was 9.3kg, and the median maximum load was 11.5kg, ranging up to 16.3kg. No limits for the weight of backpacks in schools have been established, but these weights are beyond the allowed load limits for adults. Rates of lower back pain in children are increasing, and these results suggest that a reduction in backpack weight is advisable. (Hong Y, Cheung 2003)

…

According to the American Occupational Therapy Association, backpack straps can apply pressure to the blood vessels and nerves in your child’s shoulder and neck. The pressure can cause pain and tingling in his arms, hands, legs and neck. Well-padded straps can prevent too much pressure.

…

According to the American Occupational Therapy Association, a backpack worn improperly can cause strain or damage to back and stomach muscles. If the backpack is worn loosely, the weight can pull your child backward. If it is not the right size for your child, it will cause uneven distribution of weight and deform the posture of your child and create many problems related to posture. To protect against muscle strain, adjust shoulder straps, including the waist belt if the backpack has one, and ensure that the backpack rests against your child’s lower back.”

26. In order to reduce the injuries from heavy backpacks, certain recommendations have been made in the write-up “Back Problems Due To Heavy Backpacks in School Children”. The recommendations are in the following terms:

· “Backpacks should not be heavier than 10% of the children’s body weight when packed.

· Make sure that backpacks are light in weight, sturdy and sized-matched to the children. They should not be larger than children’s. Ensure that the priority is on comfort, back and shoulder protection rather than good looks and cheap price.

· Always choose a backpack with wide and well-padded shoulder straps and with padding at the rear of the backpack which comes into contact with the back and shoulders.

· Always remember that the shoulder straps should be adjustable. The bottom of the backpack should rest on children’s hips- not on their bottom.

· Use both shoulder straps-never sling the backpack over one shoulder and use hip straps, if available.

· Don’t carry the backpack low on the back- A study of 10 healthy children aged 12-14 showed that those who carried the backpack low on the back created more pressure on the back and shoulders. So it should be properly positioned high on the back.

· Backpack should balance the load. It should be a balanced, stable and symmetrical load held close to the spine. Parents should make sure that the load is distributed properly.

· Show your child the correct way to put on the backpack properly.

· Make sure that children pack their backpacks properly. The various items should be secure and not move around the back.

· Backpacks should have many compartments so that the children can put the heaviest item in the largest compartment near the body.

· When a well-designed bag is positioned correctly, the back and abdominal muscles, which are amongst the strongest muscles in the body, support the weight of the backpack. If the weight is not too heavy, the weight is evenly spread over the body and can be supported.

…Awareness should be created among health care professionals, teachers and parents to restrict backpack load less than 10% of bodyweight by using school locker shelves. Improper use of backpacks is not healthy for anyone, especially for children who are more susceptible to injury because their bodies are growing and developing. Students, staff, and families need to be educated about backpacks’ contribution to back pain and taught appropriate interventions to reduce injury.”

27. From the foregoing discussions, it is ex-facie clear that the primary school children carrying bags more than 10% of their body weight are exposed to various health hazards and complications as detailed above. Nobody questions the health problems or hazards arising out of carrying of heavier school bags. But even then, no concrete or tangible steps have been taken by the authorities concerned to reduce the weight of school bags of the primary school children effectively as yet. Of course, a circular bearing Memo No. fË¡¢nA/f¢lQ¡mL/f.J A./2014/56(139) dated 11.12.2014 was issued by the respondent no. 3 calling upon the school authorities to advise the primary school children not to carry school bags weighing more than 10% of their body weight. This circular was issued way back on 11.12.2014. Now we are at the fag-end of 2016. The common sight of our kids carrying heavier bags is still there in our country. But as ill luck would have it, no monitoring cell has been set up either by the respondent no. 3 or by any of the respondents in order to monitor the weight of the school bags of the primary school children. It is widely believed and conceded that the primary school children both in Bangla and English medium schools are carrying school bags more than 10% of their body weight. This is, no doubt, a menace to their health and exposes them to various health-related complications and problems as adverted to hereinbefore. What is of paramount importance in this regard is this: if any school authority fails to comply with the circular dated 11.12.2014 (Annexure-‘1’ to the Affidavit-in-Opposition), then what punitive action will be taken thereagainst by the respondent no. 3? We regret to say that this Annexure-‘1’ is conspicuously silent about the punitive mechanism for errant school authorities. That being so, we feel constrained to hold that this circular dated 11.12.2014 is a sketchy and incomplete circular. Against this backdrop, this circular has failed to have the intended effect upon the primary school authorities.

28. What we are driving at boils down to this: burdening the primary school children with school bags weighing more than 10% of their body weight amounts to subjecting them to cruel treatment. This is a manifest violation of Article 35(5) of our Constitution. Needless to say, this is also a violation of human rights. Under the circumstances, we can not remain oblivious and unmindful of the cruelty and violation of human rights that are being perpetrated upon our kids.

29. The learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) concedes to the health hazards and various health-related injuries arising out of carrying of heavier school bags by the primary school children. But none the less, the authorities concerned have failed to live up to the expectations of the people by their signal failure to rise to the occasion and to take necessary remedial measures in this regard.

30. Our children are the hopes and aspirations of the country. If they are rendered physically disabled or stunted or challenged at their budding stage, we shall stand nowhere. Precisely speaking, our posterity will be a sickly posterity. All of us should be alive to this situation. This is undoubtedly a public injury. This public injury, as we see it, should be remedied at the earliest in order to save our children from being bogged down in various types of diseases and health-related problems. In this connection, we are reminded of an off-quoted maxim─ “Health is wealth”. The maxim means that our good health is the real wealth of our life which gives us good physique and mind and enables us to face all the challenges of life. Good health promotes a good mental, physical and social health. If our children are not healthy, there is no question of their shaping up as healthy citizens of the country and eventually the entire nation will suffer.

31. The views and opinions expressed in Annexure-‘A’ dated 21.11.2014, Annexure-‘B’ dated 24.06.2013, Annexure-‘C’ dated 27.07.2015 and Annexure-‘D’ dated 30.07.2015 are all based on researches, experiments and surveys. This being the panorama, we should all come forward to save our kids from health impairment on priority basis.

32. Admittedly there is no specific law regulating prohibition of use of school bags more than 10% of the body weight of the primary school children.

33. We have already observed that in the absence of any such law, our kids are exposed to health hazards and as a matter of fact, they are suffering various health ailments. So the enactment of a specific law to that effect is indispensably necessary.

34. In view of what have been stated above and regard being had to the facts and circumstances of the case, we find merit in the Rule. The Rule, therefore, succeeds.

35. Accordingly, the Rule is made absolute without any order as to costs. The respondents are hereby directed to take immediate necessary steps so that a specific law is enacted prohibiting use of school bags more than 10% of the body weight of the primary school children within a period of 6(six) months from the date of receipt of a copy of this judgment. However, as an interim measure, that is to say, till enactment of a specific legislation in this regard, the respondent no. 3 is directed to issue a new circular in supersession of the earlier one (Annexure-‘1’ to the Affidavit-in-Opposition) embodying therein the provisions relating to the establishment of a monitoring cell and providing for a punitive mechanism in case of failure to comply with the terms thereof by the primary school authorities within a period of 30(thirty) days from the date of receipt of a copy of this judgment. The respondent no. 5, being the Secretary of the Administrative Ministry of the respondent no. 3, shall bear all the responsibility in this respect.

36. Let a copy of this judgment be transmitted to each of the respondents at once for information and necessary action.

Ed.

Writ Petition No. 8252 of 2015

S. M. Mosharaf Hossain Vs. Sonali Bank and others

Case No: Civil Petition for Leave to Appeal No. 2103 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Quamrul Islam Siddique,,

Citation: VI ADC (2009) 879

Case Year: 2009

Appellant: S. M. Mosharaf Hossain

Respondent: Sonali Bank and others

Subject: Administrative Law,

Delivery Date: 2009-5-31

S. M. Mosharaf Hossain

Vs.

Sonali Bank and others, 2009,

VI ADC (2009) 879

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J

S. M. Mosharaf Hossain ........................Petitioner

Vs.

The Sonali Bank and others……...............Respondents

Judgment
May 31, 2009.

The Administrative Tribunals Act, 1980
Section 4 (2)
Praying an order setting aside the order of demotion of the petitioner……. (2)
It appears that the Administrative Appellate Tribunal considered the provision of Section 4 (2) of the Administrative Tribunals Act, 1980 and held that the application before the tribunal was barred by limitation and set aside the judgment of the Administrative Tribunal. The Administrative Appellate Tribunal further held that the order dated 10.04.2001 is not an independent order. Since it is a question of limitation provided by special law the finding of the Administrative Appellate Tribunal cannot be interfered with. …….. (16)

Lawyers Involved:
Quamrul Islam Siddique, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner (Appeared with the leave of the Court).
Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 2103 of 2008
(From the judgment and order dated 02.07.2008 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 228 of 2004)

Judgment:
Md. Abdul Matin J. - This petition for leave to appeal is directed against the judgment and order dated 02.07.2008 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 228 of 2004 allowing the appeal and reversing the judgment and order dated 29.07.2004 passed by the learned Member of the Administrative Tribunal No.2, Dhaka in Administrative Tribunal Case No.212 of 2003.

2. The facts, in short, are that the petitioner as applicant filed Administrative Tribunal Case No.190 of 2001 before the Administrative Tribunal No.2, Dhaka which was subsequently renumbered as Administrative Tribunal Case No.212 of 2003 praying for an order setting aside the order of demotion of the petitioner under the respondent No.1 contained in their letter No.DAD/SecGha/Khulna/Close-3568 dated 10.04.2001 contending, inter alia, that after completion of academic career the petitioner appeared in a competitive examination arranged by the Bankers Recruitment Committee for recruitment of probationary officers, successfully qualified in the said examination and was appointed as probationary officer grade VI under the respondent No.1 by letter dated 20.06.1979. After successful completion of the probationary period, the petitioner was confirmed in the said service as an officer with effect from 02.09.1982 by letter dated 31.07.1983.

3. Since appointment the petitioner had been serving the Bank with all sincerity, honesty and diligence. During the long period of his service under the respondent No.1, the petitioner was never charged or punished for any offence whatsoever. Past service record of the petitioner is unspotted. Being satisfied with honesty, loyalty, diligence and brilliant performance of the petitioner, the respondent No.1 was pleased to promote the petitioner to the rank of Senior Officer with effect from 19.12.1983 and to the rank of Principal Officer with effect from 29.06.1991.

4. For his extra ordinary good service, by letter dated 29.06.1986 the petitioner was rewarded with incentive awarded with incentive award of Tk.3,075/- and again by letter dated 27.12.1986 the petitioner was rewarded with
incentive award of Tk.1,860/-. The petitioner passed the Banking Diploma Examination in 1989 from the institute of Bankers, Bangladesh.

5. In Course of service, being so ordered the petitioner joined as in-charge of Foreign. Exchange and passport Department in Khulna Branch of the bank on 29.06.1992 and since then had been discharging his duties in due course honestly and sincerely. The petitioner was transferred to Jessore Principal Office and was released from Khulna Branch on 08.10.1994 and thereafter to Khulna New Market Branch as Manager and in 1995 he was again transferred to Principal Office, Khulna.

6. While working as Principal Officer in the said office the petitioner was placed under suspension vide letter No. POK/PD/PF (Po-74) dated 23.03.1995 on an alleged offence of negotiating a forged sight bill No. KHU/ SGT/3/ 330/94 dated 18.08.1994 for US Dollar 4,87,4607-of the Exporter and the Cash Credit borrower M/S. Lokpur Fish Processing Co. Ltd. during the tenure of his service as in-charge of Foreign Exchange Department in Khulna Corporate Branch.

7. After a long silence of about 17 months, a formal letter of charge, vide Memo No. DCD/Section Gha/Khulna/D1887/104 dated 25.08.1996, proposing major penalty of dismissal from service under Rule 39 of the Sonali Bank Employees Service Rules, 1995 was issued to the petitioner containing various charges.

8. On 08.09.1996 the petitioner submitted his written explanation to the said enquiry officer denying the charges and contending, inter alia, that the petitioner, being in-charge of Foreign Exchange Department always tried to boost upto achieve exporters application dated 17.08.1996 along with L/C and other papers for release of 3200 Master Cartoons of shrimps was duly recommended for shipment. The documents against the bill in question were submitted to the desk of the petitioner by M/S Lokpur Fish Processing Company Limited on 18.08.1994. It was prevalent practice in the branch that all, export/import documents addressed to the branch to be submitted to the in-charge of Foreign Exchange Department not only during the tenure of the petitioner but also from the very beginning of Foreign Exchange Department. Accordingly the petitioner instructed the checking official Mr. Zakir to check and verify the documents. Mr. Zakir pointed out the discrepancies on the offering and checking sheet and submitted for decision of the authority. The petitioner found the above major discrepancies in the checking and offering sheet and documents were placed to the Deputy General Manager for his decision. At that time the Managing Director of M/S. Lokpur Fish Processing Company Limited was sitting in the chamber of the Deputy General Manager, who elaborately discussed regarding the exporter's past performance and Considering personal undertaking and indemnity of the Managing Director of the Company, the Deputy General Manager accorded approval to negotiate the documents. The checking official and the petitioner pointed out all the major discrepancies in the checking and offering sheet with opinion not to negotiate the documents but the Deputy General Manager ignored such opinion and instructed to negotiate the documents ,and thus the documents were negotiated and proceeds was credited into the exporters cash credit account maintained with the branch. The petitioner was transferred to principal office, Jessore on 08.10.1994 and before joining there he handed over the charge of Foreign Exchange Department to Mr. Md. Hanif, Senior Principal Officer, who did not raise any objection regarding the bill and there was no export/import or inward/ outward remittances under dispute during the tenure of the petitioner as in-charge of Foreign Exchange Department. The bill in question has been realised from foreign correspondent. Everything was done for the interest of the branch as well as for the interest of the bank as a whole. The petitioner left no stone unturned to bring the Foreign Exchange business of the branch to a remarkable position. During the period of his service in the Khulna branch as in-charge of Foreign Exchange Department the petitioner rendered his untiring labour to accelerate Foreign Exchange business without jeopardizing banks interest. As such double payment in responding TRA No. 003549 dated 08.05.1994 for Tk. 5169.10 was a bona fide mistake through oversight in course of huge departmental works.

9. On receipt of the said written explanation Mr. Md. Abdul Malek, the deputed enquiry officer conducted his enquiry and he might have submitted his report. Without giving any decision thereon and even without giving a copy of the said report to the petitioner and also without assigning any reason. Therefore authority might have changed the enquiry officer. By fax message dated 24.02.1998 which was about 18 months after submission of written explanation by the petitioner, Mr. Abdul Kabir Dewan, General Manager, styling himself as enquiry officer, directed the petitioner to appear before him on 26.02.1998 for enquiry. It was sudden and surprising. The petitioner did not gel any time to get prepared for the enquiry. Even the petitioner could not understand that it was going to be a fresh enquiry and thus the petitioner was deprived of sufficient opportunity to defend himself.

10. For an early disposal of his long pending suspension order, the petitioner refrained from raising any objection to such unusual actions of the authority which is also suggestive of mala fide. On 26.02.1998 the petitioner appeared before the said enquiry officer who compelled the petitioner to write answer to some prearranged and type written purposeful questions without allowing him to make a full defence statement and thereafter concluded the enquiry without examining the relevant document conversant persons and related transactions.

11. The petitioner received the second show cause notice dated 22.11.1999, 02.12.1999 and 05.12.1999 submitted a short reply thereto contending, inter-alia, that he still rely on his reply to the charges and prayed for exonerating him from the charges.

12. Again after a silence of about 8 months by letter No. DAD/SEC-GHA/KHUL-NA/D-1817/2037/369 (Ka) dated 01.08.2000 as per decision of the Board of Directors the petitioner was dismissed from service.

13. The petitioner challenged the impugned order and the Administrative Tribunal allowed the Administrative Tribunal case setting aside the punishment but on appeal the Appellate Administrative Tribunal found that the very Administrative Tribunal case was barred by limitation.

14. Being aggrieved by the judgment of the Administrative Appellate Tribunal the petitioner has filed this petition for leave to appeal.

15. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

16. It appears that the Administrative Appellate Tribunal considered the provision of Section 4(2) of the Administrative Tribunals Act, 1980 and held that the application before the tribunal was barred by limitation and set aside the judgment of the Administrative Tribunal. The Administrative Appellate Tribunal further held that the order dated 10.04.2001 is not an independent order. Since it is a question of limitation provided by special law the finding of the Administrative Appellate Tribunal cannot be interfered with.

In such view of the matter we find no merit in this petition which is accordingly dismissed.
Ed.

S. N. Kabir Vs. Mrs. Fatema Begum and others, 3 LNJ AD (2014) 54

Case No: Civil Petition For Leave To Appeal No. 2080-2081 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mahmudul Islam,Abdul Wadud Bhuiyan,,

Citation: 3 LNJ AD (2014) 54

Case Year: 2014

Appellant: S. N. Kabir

Respondent: Mrs. Fatema Begum and others

Subject: Land Law,

Delivery Date: 2014-02-16

S. N. Kabir Vs. Mrs. Fatema Begum and others
3 LNJ AD (2014) 54
APPELLATE DIVISION
(CIVIL)

Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Hoque, J.

Judgment on
16.02.2014

S. N. Kabir
. . . Petitioner
(In both the cases)
-Versus-
Mrs. Fatema Begum and others
. . . Respondents
(In both the cases)

Land Reform Ordinance (X of 1984)
Section 5
Considering all the sections of Land Reforms Ordinance, 1984, in general and section 5 particular it appear that there is no scope reading the words rural area in section 5 of the Ordinance
The preliminary object of the legislative authority is to bring about reformation of the lands in rural area. The preamble must be read with sub-section (1) of section 1 which provides that this Ordinance may be called the Land Reforms Ordinance, 1984. The legislative authority was conscious in not using the word “agriculture” before Land Reform Ordinance. What is important to note here is that the word “land” has not been defined in section 2 of the Ordinance. But in clause-(c) of section 2 ‘barga land’ has been defined. Had the legislative authority the intention to deal with agricultural land only, it would not have defined “barga land”. . . . (22)

Land Reform Ordinance (X of 1984)
Section 5
Considering all the sections of Land Reforms Ordinance, 1984, in general and section 5 particular it appear that there is no scope reading the words rural area in section 5 of the Ordinance
The preamble cannot be used to control the enactments themselves where they are expressed in clear and unambiguous terms. The aid of preamble can only be taken when the meanings of the words to be interpreted are not clear and unambiguous. Therefore, the words ‘immoveable property’ occurring in section 5 of the Ordinance include both agricultural and non-agricultural properties. There is no scope for encroaching upon the domain of legislature by importing the words ‘rural area’ in section 5 and addition of such words will amount to legislation by the judiciary which is not at all permissible. . . . (24)

Land Reform Ordinance (X of 1984)
Sections 1(1), 2, 2(c)
The preliminary object of the legislative authority is to bring about reformation of the lands in rural area. The preamble must be read with sub-section (1) of section 1 which provides that this Ordinance may be called the Land Reforms Ordinance, 1984. The legislative authority was conscious in not using the word “agriculture” before Land Reform Ordinance. What is important to note here is that the word “land” has not been defined in section 2 of the Ordinance. But in clause-(c) of section 2 ‘barga land’ has been defined. Had the legislative authority the intention to deal with agricultural land only, it would not have defined “barga land”. . . . (22)

Land Reform Ordinance (X of 1984)
Section 5
Before promulgation of this Ordinance, the benami transactions were prevalent both in rural, urban or municipal areas. It was the intention of the legislative authority that the system, if prohibited, would be prohibited both in rural and urban or municipal areas. Though most of the provisions of the Ordinance relate to rural areas, that will not alter the meaning of the provisions of section 5 which cannot be restricted to rural areas only. Because of benami transactions, multifarious litigations crop up across the country. Moreover, the persons having the possession of black money take advantage of benami transactions by purchasing property in the names of their nearest relatives and such transactions increase corruption in the society. So, the legislative authority had the intention to say good-bye to benami transactions once and for all. The findings arrived at and the decision made by the High Court Division are based on proper appreciation of law and fact. . . .(28, 29 and 31)

Attorney General Vs. H.R. H. Prince Earnest Gugustus of Hanover (1957) All E.R. 49; Lord Davey in Powell Vs. Kempton Park Racecourse Co., Ltd(1)(1899) A.C 143 at p.185; Amin Jute Mills Vs. Bangladesh, 29 DLR(SC)85; Jennings Vs. Kelly, 1940 A.C. 206=(1939) All. E.R. 464; Anwar Hossain Chowdhury Vs. The Government of Bangladesh, 41 DLR (AD) 165; Sreemoti Indira Gandhi Vs. Rajnarain, AIR 1975 (SC) 2299; Md. Ismail Vs. State, 21 DLR (SC) 161 and Commissioner of Income Tax, Kerala Vs. Tara Agencies, (2007) 6 Supreme Court Cases 429 ref.

For the Petitioner (In both cases): Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.

For Respondent No. 1 (In C.P. No. 2080/10): Mr. Abdul Wadud Bhuiya, Senior Advocate, instructed by Mr. Md. Zainul Abedin, Advocate-on-Record.

For Respondent No. 1 (In C.P. No. 2081/10): Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Md. Zahihur Islam, Advocate-on-Record.

For Respondent no. 2 (In both cases): Not represented.

Civil Petition For Leave To Appeal No. 2080-2081 of 2010
(From the judgment and order dated the 26.04.2010 passed by the High Court Division in First Appeal No. 322 of 2003 and First Appeal No. 343 of 2003)

JUDGMENT

Syed Mahmud Hossain, J.

Both the civil petitions for leave to appeal are directed against the judgment and order dated 26.04.2010 passed by the High Court Division in First Appeal No.322 of 2003 heard analogously with F. A. No.343 of 2003 dismissing the appeals and affirming the judgment and decree dated 05.08.2003 passed by the learned Joint District Judge, Second Court, Dhaka in Title Suit No.270 of 2002 and judgment and decree dated 17.09.2003 passed by the learned Joint District Judge, Third Court, Dhaka in Title Suit No.149 of 2002 rejecting the plaints of both the suits.

Both the civil petitions for leave to appeal arising out of the common judgment and order between the same parties and involving common question of law and fact having been heard together are disposed of by this single judgment.

The facts leading to the filing of both the civil petitions for leave to appeal, in brief, are:

The plaintiff instituted Title Suit No.149 of 2002 and Title Suit No.270 of 2002 for declaration that he is the owner of the suit property and that the defendant-wife is his benamdar and is not the owner thereof. The plaintiff’s case, in short, is that he married defendant No.1, Mrs. Fatema Begum who is a simple house wife had no source of income and dependent on the plaintiff-husband. The plaintiff being an industrialist and with motive to get income tax relief purchased the suit property being urban property in the “benami” of defendant No.1 and that the plaintiff purchased the suit property with his own money and he has been residing in the suit property with his family treating the same as his own property. Defendant No.1 knew that the plaintiff purchased the suit property in the “benami” of defendant No.1 who was claiming ownership of the suit property at the behest of her father and brother. Hence, the suit has been filed by the plaintiff for declaration of title in the suit property.

Defendant No.1 contested the suit by filing an application under Order VII Rule 11(d) of the Code of Civil Procedure for rejection of the plaint, contending, inter alia, that under the provision of section 5 of the Land Reforms Ordinance,1984 (hereinafter referred as “the Ordinance”), the suit of the plaintiff is barred as benami transaction is prohibited.

The plaintiff filed written objection against defendant’s application for rejection of the plaint. His case is that the suit property is urban property and that the Land Reforms Ordinance,1984 has been promulgated with the object to reform the land relating to land tenures, land holding and transfer with a view to maximizing production and ensuring a better relationship between land owners and bargaders and the provisions of the entire Ordinance are relating to agricultural and cultivable land holding and transfers and not relating to urban land, and the provisions of section 5 of the said Ordinance do not apply to non-agricultural urban land transfer, and the application of defendant No.1 for rejection of the plaint is liable to be rejected.

The trial Court by the judgments and orders dated 17.09.2003 and 05.08.2003 rejected the plaints of both the suits.

Being aggrieved by and dissatisfied with the judgments and orders dated 17.09.2003 and 05.08.2003 passed by the trial Court, the plaintiff preferred First Appeal Nos.322 and 343 of 2003 before the High Court Division. The learned Judges of the High Court Division, upon hearing the parties in both the appeals, by its judgment and order dated 26.04.2010 dismissed both the appeals.

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the plaintiff has filed these civil petitions for leave to appeal before this Division.

Mr. Mahmudul Islam, learned Senior Advocate, appearing on behalf of the leave-petitioner in both the petitions, submits that if the Land Reforms Ordinance,1984 is considered as a whole, it will appear that prohibition of benami transaction of “immoveable property” applies only in respect of agricultural land and that the High Court Division having considered the provision of section 5 of the Ordinance in particular, came to the finding that section 5 of the Ordinance applies to both agricultural and non-agricultural land. He further submits that section 5 of the Ordinance undoubtedly relates to agricultural land and the purpose of the Ordinance is to maximize production and to that end, provision has been made for stable and satisfactory relationship between agricultural land owners and bargaders and the expression “immoveable property” cannot be said to be unambiguous and there is a doubt as to whether in dealing with agricultural land, the legislative authority at all intended to bring non-agricultural land within the mischief of section 5 of the Ordinance and as such, the impugned judgment should be set aside.

Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of respondent No.1 in Civil Petition for Leave to Appeal No.2080 of 2010 and Mr. Mahbubey Alam, learned Senior Advocate, appearing on behalf of respondent No.1 in Civil Petition for Leave to Appeal No.2081 of 2010, on the other hand, support the impugned judgment delivered by the High Court Division.

We have considered the submissions of the learned Senior Advocate, perused the impugned judgment and the materials on record.

Benami transactions which have been in vogue in the Indian Sub-Continent for centuries denote a transaction which is done by a person without using his own name, but in the name of another. Acquiring and holding property and even carrying on business in names other than those of real owners or in fictitious names did not contravene any provision of law and therefore, Courts had given effect to such transactions. In benami transaction, the Benamdar has no beneficial interest in the property or business that stands in his name. He only represents the real owner as his trustee. In benami transactions, the presumption is that a person who pays money is the real owner and not the person in whose name the property is purchased. Earlier men purchased properties in benami to cajole or shield themselves against the creditors. There was also the need for defrauding by making secret transactions. Fear of confiscation also led to benami holdings. Besides, these arrangements were aimed at evading the law.

This old age practice was given a go-by by section 5 of the Land Reforms Ordinance,1984. Before addressing the submissions of the learned Advocate for the petitioner, it is necessary to go through the provision of section 5 as incorporated in Chapter-3 of the Ordinance under the caption “Prohibition of Benami Transaction of Immoveable Property” as under:

“5.(1) No person shall purchase any immovable property for his own benefit in the name of another person.
(2) Where the owner of any immovable property transfers or bequeaths it by a registered deed, it shall be presumed that he has disposed of his beneficial interest therein as specified in the deed and the transferee or legatee shall be deemed to hold the property for his own benefit, and no evidence, oral or documentary, to show that the owner did not intend to dispose of his beneficial interest therein or that the transferee or legatee hold the property for the benefit of the owner, shall be admissible in any proceeding before any Court or authority.
(3) Where any immoveable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit, and where consideration for such transfer is paid or provided by another person it shall be presumed that such other person intended to pay or provide such consideration for the benefit of the transferee, and no evidence, oral or documentary, to show that the transferee hold the property for the benefit of any other person or for the benefit of the person paying or providing the consideration shall be admissible in any proceeding before any Court or authority.”

The expression “immoveable property” is to be construed in its proper context to ascertain whether the expression is clear and unambiguous. In order to construe “immoveable property” as mentioned in section 5 of the Ordinance, all the sections of the Ordinance are to be considered. The expression immoveable property cannot be considered in isolation in the context of section 5 of the Ordinance. For proper construction, the preamble and the short title of the Ordinance are also to be considered. The preamble of the Ordinance runs as under:

If the preamble is considered in isolation, then the submission made by Mr. Mahmudul Islam carries much force. Now let us see what role is played by the preamble in construing a statue.

According to Maxwell “when possible, a construction should be adopted which will facilitate the smooth working of the scheme of the legislation”-Interpretation of Statutes 12^th edition at page 201.

In the case of Attorney General vs. H.R. H. Prince Earnest Gugustus of Hanover (1957) All E.R. Pg.49, Law Lord Viscount Simonds observed that as under:

“For words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use context in its widest sense which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy.”

On the one hand, the proposition can be accepted that

“.......it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.”

“I quote the words of CHITTY,L.J., which were cordially approved by Lord Davey in Powell V. Kempton Park Racecourse Co., Ltd(1)([1899] A.C 143 at p.185). On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It means only that the elementary rule must be observed that no one should profess to understand any part of a statue or of any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous.”

In the case of Amin Jute Mills Vs. Bangladesh 29 DLR(SC)85, it has been observed paragraphs 9 and 11 as under:

“It is now well-recognized, in this regard that although there was previously some difference of opinion among the distinguished jurists in England, the long title of an Act which is set out at its head giving the general purpose of the Act as well as the preamble of an Act which also recites the main object of the Act are part of the Act. One of the basic rules of interpretation of a statute is that to understand the meaning of a particular provision of an Act one is to read the Act as a whole each part shedding light on the other and the following observation of Lord Wright in the case of Jennings Vs. Kelly decided by the House of Lords and reported in 1940 A.C. 206 same case (1939) All. E.R. 464 may be referred in this connection.”

“The proper course is to apply the broad general rule of construction, which is that section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest.”

“..............If the words of a substantive provision of an Act are precise and unambiguous then the meaning thereof should not be restricted and controlled by taking recourse to the title or preamble of the Act. Lord Halsbury, L.C. in his speech in the case of Powell Vs. The Kempton Park Race Course Company Limited (1899) A.C. 143 at page 157 clearly stated the law in this regard in the following words;

“Two propositions are quite clear-one that a preamble may afford useful light as to what a statute intends to reach, and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.”

Lord Davey dwelt on this question further in his separate speech in the same case and made the following observation at page 185 of the Report:

“undoubtedly’....I quote from Chitty L.J.’s Judgment words with which I cordially agree...it is a settled Rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.........There is however another Rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and defeat the general intention of the Legislature.”

In the case of Anwar Hossain Chowdhury Vs. the Government of Bangladesh, 41 DLR (AD)165, this Division in paragraph 489 of the report quoted with approval the observation of the Indian Supreme Court in the case of Sreemoti Indira Gandhi Vs. Rajnarain reported in AIR 1975 (SC)2299 as follows:

“The preamble, though a part of the Constitution is neither a source of power nor a limitation upon that of the ideological aspirations of the peoples…”

From the cases cited above, it appears that the preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous.

Having gone through the preamble, we find that the preliminary object of the legislative authority is to bring about reformation of the lands in rural area. The preamble must be read with sub-section (1) of section 1 which provides that this Ordinance may be called the Land Reforms Ordinance, 1984. The legislative authority was conscious in not using the word “agriculture” before Land Reform Ordinance. What is important to note here is that the word “land” has not been defined in section 2 of the Ordinance. But in clause-(c) of section 2 ‘barga land’ has been defined. Had the legislative authority the intention to deal with agricultural land only, it would not have defined “barga land”.

Sub-section (1) of section 5 of the Ordinance provides that no person shall purchase any immoveable property for his own benefit in the name of another person. Sub-section (2) of section 5 of the Ordinance provides that where the owner of any immoveable property transfers or bequeaths it by a registered deed, the presumption would be that he has disposed of his beneficial interest therein and the transferee or legatee shall be deemed to hold the property for his own benefit and that no evidence either oral or documentary to show that the seller did not intend to dispose of his beneficial interest therein or the transferee or legatee holds the property for the benefit of the owner and that such evidence shall not be admissible in any proceeding before any Court or authority. Sub-section (3) of section 5 provides that where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit and no oral and documentary evidence to show that the transferee holds the property for the benefit of another person paying or providing the consideration shall be admissible in any proceeding before any Court or authority.

The language of section 5 of the Ordinance is plain and unambiguous and it is remarkable by itself. This section must be read in conjunction with sub-section (1) of section 1 of the Ordinance, which provides that this Ordinance may be called the “Land Reforms Ordinance.” While describing the (naming) Ordinance, the legislative authority was conscious in not using the word “agriculture” before the word, ‘land’. This Ordinance has been divided into six chapters. Chapter-1 containing sections 1 to 3 relates to preliminary; chapter-II containing section 4 relates to limitation on acquisition of agricultural land; chapter-III comprising section 5 relates to prohibition of benami transaction of immoveable property; chapter-IV comprising sections 6 and 7 relates to homesteads in ‘rural area’, chapter-V consisting of sections 8-18 relates to agricultural land and resolution of dispute between the land owners and bargadars and chapter-VI containing sections 20, 21 and 22 relates to miscellaneous. Having gone through all the sections of the Ordinance, in general, and section 5, in particular, we are of the view that there is no scope for reading the words ‘rural area’ in section 5 of the Ordinance. From the cases cited before, it appears that the preamble cannot be used to control the enactments themselves where they are expressed in clear and unambiguous terms. The aid of preamble can only be taken when the meanings of the words to be interpreted are not clear and unambiguous. Therefore, the words ‘immoveable property’ occurring in section 5 of the Ordinance include both agricultural and non-agricultural properties. There is no scope for encroaching upon the domain of legislature by importing the words ‘rural area’ in section 5 and addition of such words will amount to legislation by the judiciary which is not at all permissible.

The Supreme Court of Pakistan in the case of Md. Ismail Vs. the State, 21 DLR (SC)161 observed in paragraph 15 that the function of the Court is interpretation, not legislation in the following terms:

“15. The purpose of the construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequences of the interpretation however drastic inconvenient the result, for, the function of the Courts is interpretation, not legislation.”

The Indian Supreme Court in the case of Commissioner of Income Tax, Kerala Vs. Tara Agencies reported in (2007)6 Supreme Court Cases 429 held in paragraph 58 of the report (P.447) as follows:

“58. In Union of India Vs. Deoki Nandan Aggarwal, a three Judge Bench of this Court held that it is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The Court cannot rewrite the legislation for the reason that it had no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there.”

From the cases cited above, it appears that the function of the Courts is interpretation, not legislation and that Courts cannot add words to a statute or read words into it which are not there.

Before promulgation of this Ordinance, the benami transactions were prevalent both in rural, urban or municipal areas. It was the intention of the legislative authority that the system, if prohibited, would be prohibited both in rural and urban or municipal areas. Though most of the provisions of the Ordinance relate to rural areas, that will not alter the meaning of the provisions of section 5 which cannot be restricted to rural areas only.

Because of benami transactions, multifarious litigations crop up across the country. Moreover, the persons having the possession of black money take advantage of benami transactions by purchasing property in the names of their nearest relatives and such transactions increase corruption in the society. So, the legislative authority had the intention to say good-bye to benami transactions once and for all.

Benami transactions have been prohibited in India by the Benami Transactions (Prohibition and the Right of Recovery Property) Ordinance,1988 followed by the Benami Transactions (Prohibition) Act,1988 and therefore, in India benami transactions are not permissible both in rural and urban areas. We, however, got rid of benami transactions by the Land Reforms Ordinance,1984.

The findings arrived at and the decision made by the High Court Division are based on proper appreciation of law and fact.

In the light of the findings made before, we do not find any substance in these civil petitions for leave to appeal. Accordingly, both the petitions are dismissed.

Ed.

S. N. Kabir Vs. Mrs. Fatema Begum and others [4 LNJ AD (2015) 133]

Case No: CIVIL PETITION FOR LEAVE TO APPEAL Nos. 2080-2081 OF 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mr. Mahmudul Islam,Mr. Abdul Wadud Bhuiyan,,

Citation: 4 LNJ AD (2015) 133

Case Year: 2015

Appellant: S. N. Kabir

Respondent: Mrs. Fatema Begum and others

Subject: Interpretation of Statute, Immoveable Property,

Delivery Date: 2016-01-14

APPELLATE DIVISION
(CIVIL)

Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Haque, J.
Judgment on
16.02.2014

}
}
}

S. N. Kabir
...Petitioner
(In both the cases)
Versus
Mrs. Fatema Begum and others
...Respondents
(In both the cases)

Land Reforms Ordinance (X of 1984)
Section 5
The expression “immoveable property” is to be construed in its proper context to ascertain whether the expression is clear and unambiguous. In order to construe “immoveable property” as mentioned in section 5 of the Ordinance, all the sections of the Ordinance are to be considered. The expression immoveable property cannot be considered in isolation in the context of section 5 of the Ordinance. For proper construction, the preamble and the short title of the Ordinance are also to be considered. . . . (14)

Interpretation of Statute
One of the basic rules of interpretation of a statute is that to understand the meaning of a particular provision of an Act one is to read the Act as a whole each part shedding light on the other.      . . . (20)

Interpretation of Statute
The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous. . . . (23)

Land Reforms Ordinance (X of 1984)
Section 5
The language of section 5 of the Ordinance is plain and unambiguous and it is remarkable by itself. This section must be read in conjunction with sub-section (1) of section 1 of the Ordinance, which provides that this Ordinance may be called the “Land Reforms Ordinance.”        . . . (27)

Land Reforms Ordinance (X of 1984)
Section 5
There is no scope for reading the words ‘rural area’ in section 5 of the Ordinance. . . .(29)

Land Reforms Ordinance (X of 1984)
Section 5
The words ‘immoveable property’ occurring in section 5 of the Ordinance include both agricultural and non-agricultural properties. There is no scope for encroaching upon the domain of legislature by importing the words ‘rural area’ in section 5 and addition of such words will amount to legislation by the judiciary which is not at all permissible. . . .(29)

Interpretation of Statute
It appears that the function of the Courts is interpretation, not legislation and that Courts cannot add words to a statute or read words into it which are not there.     . . . (32)

Land Reforms Ordinance (X of 1984)
Section 5
Before promulgation of this Ordinance, the benami transactions were prevalent both in rural, urban or municipal areas. It was the intention of the legislative authority that the system, if prohibited, would be prohibited both in rural and urban or municipal areas. Though most of the provisions of the Ordinance relate to rural areas, that will not alter the meaning of the provisions of section 5 which cannot be restricted to rural areas only. . . . (33)

Lord Davey in Powell V. Kempton Park Racecourse Co., Ltd (1)([1899] A.C 143 at p.185); Amin Jute Mills Vs. Bangladesh, 29 DLR (SC) 85; Jennings Vs. Kelly 1940 A.C. 206; Anwar Hossain Chowdhury Vs. The Government of Bangladesh, 41 DLR (AD) 165; Indira Gandhi Vs. Rajnarain, AIR 1975 (SC)2299; Md. Ismail Vs. The State, 21 DLR (SC) 161 and Commissioner of Income Tax, Kerala Vs. Tara Agencies (2007) 6 SCC 429 ref.

For the Petitioner (in both the cases): Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record..
For Respondent No. 1 (In C. P. No. 2080/10): Mr. Abdul Wadud Bhuiya, Senior Advocate, instructed by Mr. Md. Zainul Abedin, Advocate-on-Record.
For Respondent No. 1 (In C. P. No. 2080/10): Mr. Mahbubey Alam, Senior Advocate, instructed by Mr. Md. Zahihur Islam, Advocate-on-Record.
For Respondent No. 2 (In both the cases): Not represented.

CIVIL PETITION FOR LEAVE TO APPEAL Nos. 2080-2081 OF 2010

JUDGMENT

Syed Mahmud Hossain, J:

Both the civil petitions for leave to appeal are directed against the judgment and order dated 26.04.2010 passed by the High Court Division in First Appeal No.322 of 2003 heard analogously with F. A. No.343 of 2003 dismissing the appeals and affirming the judgment and decree dated 05.08.2003 passed by the learned Joint District Judge, Second Court, Dhaka in Title Suit No. 270 of 2002 and judgment and decree dated 17.09.2003 passed by the learned Joint District Judge, Third Court, Dhaka in Title Suit No. 149 of 2002 rejecting the plaints of both the suits.

Both the civil petitions for leave to appeal arising out of the common judgment and order between the same parties and involving common question of law and fact having been heard together are disposed of by this single judgment.

The facts leading to the filing of both the civil petitions for leave to appeal, in brief, are :
The plaintiff instituted Title Suit No.149 of 2002 and Title Suit No.270 of 2002 for declaration that he is the owner of the suit property and that the defendant-wife is his benamdar and is not the owner thereof. The plaintiff’s case, in short, is that he married defendant No.1, Mrs. Fatema Begum who is a simple house wife had no source of income and dependent on the plaintiff-husband.The plaintiff being an industrialist and with motive to get income tax relief purchased the suit property being urban property in the “benami” of defendant No.1 and that the plaintiff purchased the suit property with his own money and he has been residing in the suit property with his family treating the same as his own property. Defendant No.1 knew that the plaintiff purchased the suit property in the “benami” of defendant No.1 who was claiming ownership of the suit property at the behest of her father and brother. Hence, the suit has been filed by the plaintiff for declaration of title in the suit property.

Defendant No.1 contested the suit by filing an application under Order VII Rule 11(d) of the Code of Civil Procedure for rejection of the plaint, contending, inter alia, that under the provision of section 5 of the Land Reforms Ordinance,1984 (hereinafter referred as “the Ordinance”), the suit of the plaintiff is barred as benami transaction is prohibited.

The plaintiff filed written objection against defendant’s application for rejection of the plaint. His case is that the suit property is urban property and that the Land Reforms Ordinance,1984 has been promulgated with the object to reform the land relating to land tenures, land holding and transfer with a view to maximizing production and ensuring a better relationship between land owners and bargaders and the provisions of the entire Ordinance are relating to agricultural and cultivable land holding and transfers and not relating to urban land, and the provisions of section 5 of the said Ordinance do not apply to non-agricultural urban land transfer, and the application of defendant No.1 for rejection of the plaint is liable to be rejected.

The trial Court by the judgments and orders dated 17.09.2003 and 05.08.2003 rejected the plaints of both the suits.

Being aggrieved by and dissatisfied with the judgments and orders dated 17.09.2003 and 05.08.2003 passed by the trial Court, the plaintiff preferred First Appeal Nos.322 and 343 of 2003 before the High Court Division. The learned Judges of the High Court Division, upon hearing the parties in both the appeals, by its judgment and order dated 26.04.2010 dismissed both the appeals.

Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the plaintiff has filed these civil petitions for leave to appeal before this Division.

Mr. Mahmudul Islam, learned Senior Advocate, appearing on behalf of the leave-petitioner in both the petitions, submits that if the Land Reforms rdinance,1984 is considered as a whole, it will appear that prohibition of benami transaction of “immoveable property” applies only in respect of agricultural land and that the High Court Division having considered the provision of section 5 of the Ordinance in particular, came to the finding that section 5 of the Ordinance applies to both agricultural and non-agricultural land. He further submits that section 5 of the Ordinance undoubtedly relates to agricultural land and the purpose of the Ordinance is to maximize production and to that end, provision has been made for stable and satisfactory relationship between agricultural land owners and bargaders and the expression “immoveable property” cannot be said to be unambiguous and there is a doubt as to whether in dealing with agricultural land, the legislative authority at all intended to bring non-agricultural land within the mischief of section 5 of the Ordinance and as such, the impugned judgment should be set aside.

Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of respondent No.1 in Civil Petition for Leave to Appeal No.2080 of 2010 and Mr. Mahbubey Alam, learned Senior Advocate, appearing on behalf of respondent No.1 in Civil Petition for Leave to Appeal No.2081 of 2010, on the other hand, support the impugned judgment delivered by the High Court Division.

We have considered the submissions of the learned Senior Advocate, perused the impugned judgment and the materials on record.

Benami transactions which have been in vogue in the Indian Sub-Continent for centuries denote a transaction which is done by a person without using his own name, but in the name of another. Acquiring and holding property and even carrying on business in names other than those of real owners or in fictitious names did not contravene any provision of law and therefore, Courts had given effect to such transactions. In benami transaction, the Benamdar has no beneficial interest in the property or business that stands in his name. He only represents the real owner as his trustee. In benami transactions, the presumption is that a person who pays money is the real owner and not the person in whose name the property is purchased. Earlier men purchased properties in benami to cajole or shield themselves against the creditors. There was also the need for defrauding by making secret transactions. Fear of confiscation also led to benami holdings. Besides, these arrangements were aimed at evading the law.

This old age practice was given a go-by by section 5 of the Land Reforms Ordinance, 1984. Before addressing the submissions of the learned Advocate for the petitioner, it is necessary to go through the provision of section 5 as incorporated in Chapter-3 of the Ordinance under the caption “Prohibition of Benami Transaction of Immoveable Property” as under:

“Whereas it is expedient to reform the law relating to land tenure, land holding and land transfer with a view to maximising production and ensuring a better relationship between land owners and bargadars.” If the preamble is considered in isolation, then the submission made by Mr. Mahmudul Islam carries much force.

Now let us see what role is played by the preamble in construing a statue.

According to Maxwell “when possible, a construction should be adopted which will facilitate the smooth working of the scheme of the legislation”-Interpretation of Statutes 12^th edition at page 201.

In the case of Attorney General vs. H.R. H. Prince Earnest Gugustus of Hanover (1957) All E.R. Pg.49, Law Lord Viscount Simonds observed that as under:

On the one hand, the proposition can be accepted that “.......it is a settled rule that the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.”

“I quote the words of CHITTY, L.J., which were cordially approved by Lord Davey in Powell V. Kempton Park Racecourse Co., Ltd(1)([1899] A.C 143 at p.185). On the other hand, it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity in order to bring in the aid of the preamble. It means only that the elementary rule must be observed that no one should profess to understand any part of a statue or of any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it, or any part of it, is clear and unambiguous.”

In the case of Amin Jute Mills Vs. Bangladesh 29 DLR(SC)85, it has been observed paragraphs 9 and 11 as under:

One of the basic rules of interpretation of a statute is that to understand the meaning of a particular provision of an Act one is to read the Act as a whole each part shedding light on the other and the following observation of Lord Wright in the case of Jennings Vs. Kelly decided by the House of Lords and reported in 1940 A.C. 206 same case (1939) All. E.R. 464 may be referred in this connection.”

Lord Davey dwelt on this question further in his separate speech in the same case and made the following observation at page 185 of the Report:

“undoubtedly’....I quote from Chitty L.J.’s Judgment words with which I cordially agree...it is a settled Rule that the preamble cannot be made use of to control the enactm-ents themselves where they are expressed in clear and unambiguous terms......There is however another Rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and defeat the general intention of the Legislature.”

In the case of Anwar Hossain Chowdhury Vs. the Government of Bangladesh, 41 DLR (AD)165, this Division in paragraph 489 of the report quoted with approval the observation of the Indian Supreme Court in the case of Sreemoti Indira Gandhi Vs. Rajnarain reported in AIR 1975 (SC)2299 as follows:

“The preamble, though a part of the Constitution is neither a source of power nor a limitation upon that of the ideological aspirations of the peoples…………”

From the cases cited above, it appears that the preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous.

Having gone through the preamble, we find that the preliminary object of the legislative authority is to bring about reformation of the lands in rural area. The preamble must be read with sub-section (1) of section 1 which provides that this Ordinance may be called the Land Reforms Ordinance, 1984. The legislative authority was conscious in not using the word “agriculture” before Land Reform Ordinance. What is important to note here is that the word “land” has not been defined in section 2 of the Ordinance.

But in clause-(c) of section 2 ‘barga land’ has been defined. Had the legislative authority the intention to deal with agricultural land only, it would not have defined “barga land”.

Sub-section (1) of section 5 of the Ordinance provides that no person shall purchase any immoveable property for his own benefit in the name of another person. Sub-section (2) of section 5 of the Ordinance provides that where the owner of any immoveable property transfers or bequeaths it by a registered deed, the presumption would be that he has disposed of his beneficial interest therein and the transferee or legatee shall be deemed to hold the property for his own benefit and that no evidence either oral or documentary to show that the seller did not intend to dispose of his beneficial interest therein or the transferee or legatee holds the property for the benefit of the owner and that such evidence shall not be admissible in any proceeding before any Court or authority. Sub-section (3) of section 5 provides that where any immovable property is transferred to a person by a registered deed, it shall be presumed that such person has acquired the property for his own benefit and no oral and documentary evidence to show that the transferee holds the property for the benefit of another person paying or providing the consideration shall be admissible in any proceeding before any Court or authority.

The language of section 5 of the Ordinance is plain and unambiguous and it is remarkable by itself. This section must be read in conjunction with sub-section (1) of section 1 of the Ordinance, which provides that this Ordinance may be called the “Land Reforms Ordinance.” While describing the (naming) Ordinance, the legislative authority was conscious in not using the word “agriculture” before the word, ‘land’.

This Ordinance has been divided into six chapters. Chapter-1 containing sections 1 to 3 relates to preliminary; chapter-II containing section 4 relates to limitation on acquisition of agricultural land; chapter-III comprising section 5 relates to prohibition of benami transaction of immoveable property; chapter-IV comprising sections 6 and 7 relates to homesteads in ‘rural area’, chapter-V consisting of sections 8-18 relates to agricultural land and resolution of dispute between the land owners and bargadars and chapter-VI containing sections 20, 21 and 22 relates to miscellaneous.

Having gone through all the sections of the Ordinance, in general, and section 5, in particular, we are of the view that there is no scope for reading the words ‘rural area’ in section 5 of the Ordinance. From the cases cited before, it appears that the preamble cannot be used to control the enactments themselves where they are expressed in clear and unambiguous terms. The aid of preamble can only be taken when the meanings of the words to be interpreted are not clear and unambiguous. Therefore, the words ‘immoveable property’ occurring in section 5 of the Ordinance include both agricultural and non-agricultural properties. There is no scope for encroaching upon the domain of legislature by importing the words ‘rural area’ in section 5 and addition of such words will amount to legislation by the judiciary which is not at all permissible.

The Supreme Court of Pakistan in the case of Md. Ismail Vs. the State, 21 DLR (SC) 161 observed in paragraph 15 that the function of the Court is interpretation, not legislation in the following terms:

“15. The purpose of the construction or interpretation of a statutory provision is no doubt to ascertain the true intention of the Legislature, yet that intention has, of necessity, to be gathered from the words used by the Legislature itself. If those words are so clear and unmistakable that they cannot be given any meaning other than that which they carry in their ordinary grammatical sense, then the Courts are not concerned with the consequ-ences of the interpretation however drastic inconvenient the result, for, the function of the Courts is interpretation, not legislation.”

The Indian Supreme Court in the case of Commissioner of Income Tax, Kerala Vs. Tara Agencies reported in (2007)6 Supreme Court Cases 429 held in paragraph 58 of the report (P.447) as follows:

From the cases cited above, it appears that the function of the Courts is interpretation, not legislation and that Courts cannot add words to a statute or read words into it which are not there.

Before promulgation of this Ordinance, the benami transactions were prevalent both in rural, urban or municipal areas. It was the intention of the legislative authority that the system, if prohibited, would be prohibited both in rural and urban or municipal areas. Though most of the provisions of the Ordinance relate to rural areas, that will not alter the meaning of the provisions of section 5 which cannot be restricted to rural areas only.

Because of benami transactions, multifa-rious litigations crop up across the country. Moreover, the persons having the possession of black money take advantage of benami transa-ctions by purchasing property in the names of their nearest relatives and such transactions increase corruption in the society. So, the legislative authority had the intention to say good-bye to benami transactions once and for all.

Benami transactions have been prohibited in India by the Benami Transactions (Prohibition and the Right of Recovery Property) Ordinance, 1988 followed by the Benami Transactions (Prohibition) Act, 1988 and therefore, in India benami transactions are not permissible both in rural and urban areas.

We, however, got rid of benami transactions by the Land Reforms Ordinance, 1984.

The findings arrived at and the decision made by the High Court Division are based on proper appreciation of law and fact.

In the light of the findings made before, we do not find any substance in these civil petitions for leave to appeal.

Accordingly, both the petitions are dismissed.

Ed.

Saber Hossain Chowdhury Vs. Bangladesh Election Commission and others, 57 DLR (AD) (2005) 105

Case No: Civil Appeal No. 147 of 2002

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Subrata Saha,,

Citation: 57 DLR (AD) (2005) 105

Case Year: 2005

Appellant: Saber Hossain Chowdhury

Respondent: Election Commission

Subject: Election Matter,

Delivery Date: 2005-3-22

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Md. Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J

Saber Hossain Chowdhury
.....................Appellant
Vs.
Bangladesh Election Commission and others
.............Respondents

Judgment
March 22, 2005.

The Representation of the People’s Order, 1972 (P.O. 155 of 1972)
Article 49(4)
At the time of presenting an election petition with the High Court Division deposit of Taka 2000 as security is mandatory. The petitioner deposited the amount through lawyer in due time. Such deposit in the manner is lawful. Deposit of the amount personally by the petitioner himself is directory and not mandatory.

Cases Referred to:
Giasuddin Quader Chowdhury vs. ABM Fazle Karim Chowdhury and others 2003 BLD (AD) 215= 9 BLC (AD) 10; Kamaraja Nadar vs. Kunju Thevar and others AIR 1958 (SC) 687.

Lawyers Involved:
Subrata Chowdhury, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on- Record-For the Appellant.
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on- Record-For Respondent No. 3.
Dispensed with-Respondent Nos. 1, 2, 4-25.

Civil Appeal No. 147 of 2002.
(From the judgment and order dated 30‑4‑2002 passed by the High Court Division in Election Petition No. 6 of 2001).

JUDGMENT

Amirul Kabir Chowdhury J.

1. This appeal by leave granted by the High Court Division at the instance of the appellant-election petitioner Saber Hossain Chowdhury arises out of a decision of the High Court Division being order dated 30.4.2002 passed in Election Petition No. 6 of 2001.

2. The facts, in short, are that the appellant contested the election to the post of Member of Parliament from Dhaka-6 (Motijheel-Sabujbagh) Constituency in the election on 1st October 2001 and the respondent No.3 was declared elected in the election and the result was published in the official Gazette on 4 October, 2001. The appellant challenged the result of the election filing an application under Article 49 of the Representation of the People Order, 1972, hereinafter referred to as the Order. The said petition was registered as Election Petition No. 6 of 2001. The respondent No. 3 along with other respondents filed written objections. It was contended, inter alia, on behalf of the contesting respondents that the election petition itself was not maintainable in view of non-fulfilment of Article 49(4) of the Order inasmuch as the sum of Taka 2,000 as security for the costs of the petition has not been deposited by the election petitioner‑appellant himself and thus the election petition became liable to be dismissed under Article 58 of the Order.

3. Issues were framed accordingly and issue No. 1 was framed to decide as to maintainability of the election petition and to decide whether the petition was liable to be dismissed under Article 58 of the Order. The said preliminary issue was taken up for hearing and after hearing the parties a Single Judge of the High Court Division by the impugned decision dismissed the election petition. Hence is this appeal.

4. In support of the appeal Mr. Subrata Chowdhury, learned Senior Advocate, placed the impugned decision and submits, inter alia, that the High Court Division committed error in law in holding that the deposit for security for cost of the election petition made by the Advocate of the appellant was not in accordance with Article 49(4) of the Order and thus misconstrued the provision of the said Article.

5. He further submits that in the absence of any specific Rule the Chief Justice of Bangladesh was competent to give necessary direction as to deposit of security for cost for election petition and the notification so issued on 18‑10‑2001 by the Registrar of the Supreme Court was valid one and the appellant deposited the costs accordingly and therefore, the petition does not come within the mischief of any provision of Article 58 of the order and, as such, the impugned decision being bad in law and prone with error is liable to be set aside.

6. In order to appreciate the submissions let us quote the relevant portion of Order 49 which runs as follows:

"(49) (1) No election shall be called in question except by an election petition presented by a candidate for that election in accordance with the provisions of this chapter.
..........................

(4) At the time of presenting an election petition, the petitioner shall deposit in the High Court Division in accordance with the rules of the High Court Division a sum of Taka two thousand as security for the costs of the petition".

Article 58 reads as follows:

"58. The High Court Division shall dismiss an election petition if-
(a) the provisions of Article 49 or Article 50 or Article 51 have not been complied with; or….”

7. From the aforesaid provision of law it appears that in order to maintain an election petition at the time of presenting the said petition the appellant is required to deposit in the High Court Division in accordance with the rules of the High Court Division a sum of Taka 2,000 as security and for non-compliance of the aforesaid provision under Article 58 of the Order election petition shall be dismissed by the High Court Division.

8. The bone of contention in the instant case is that the appellant-election petitioner did not deposit the amount himself and, as such, did not comply with the provision of Article 49(4) of the order. There is no denial that a notification dated 18-10-2002 was issued by the Registrar of the Supreme Court under the direction of the Chief Justice of Bangladesh which is quoted below:

“সংশ্লিষ্ট সকলের অবগতির জন্য জানানো যাইতেছে যে, The Representation of the People (Amendment) Ordinance, 2001 সংশোধনের ফলে নির্বাচন সংক্রান্ত অভিযোগ শুনানির নিমিত্ত হাইকোর্ট বিভাগকে ক্ষমতা অর্পণ করা হইয়াছে। উক্ত অধ্যাদেশের ৪৯(৪) বিধান অনুসারে Security for the cost of petition হিসাবে নির্ধারিত টাকা অন্যান্য সিভিল মামলার ন্যায় নির্বাচনী মামলার ক্ষেত্রেও একই পদ্ধতিতে হাইকোর্ট বিভাগের ক্যাশিয়ারের নিকট জমা দেওয়া যাইবে এবং নির্বাচনী মামলা সমূহ ফাইলিং শাখায় দাখিল করিয়া স্ট্যাম্প রিপোর্টারের রিপোর্ট গ্রহন পূর্বক সংশ্লিষ্ট কোর্টে উপস্থাপন করা যাইবে।”

9. There is also no denial that the appellant deposited the amount through his learned Advocate and the pay-in slip depositing the money was also signed by the appellant himself. The High Court Division after considering various rules and the aforesaid notification of the Bangladesh Supreme Court held:

"After perusing the slip of payment of cost it cannot be said that the petitioner himself deposited the cost. There is no ambiguity in the language of the aforesaid Article 49(4). Since there is no ambiguity the interpretation of word "Shall" can be taken into consideration as its plain meaning. If the word "shall" and "shall be" would be directory one to the petitioner at the time of presentation of the election petition and also about the contents of the election petition, the penal Article 58(a) would not have been inserted in the election law by the legislator. When in a special statute the legislature use the word "shall/shall be" directing a person to perform in the manner or form with declaring what shall be the consequence of non-compliance of the same, the intention of the legislature is clear that the same must be done by that person to whom it directs and it is imperative and not directory to that person.
................……..
In view of the above discussion it is found that the petitioner did not comply with the provision of Article 49(4) of the Representation of People's Order, 1972 in depositing the security for the cost of the election petition."

With the aforesaid finding the High Court Division dismissed the election petition as already mentioned above.

10. In support of the submissions, learned Advocate of the appellant has referred to the decision in the case of Giasuddin Quader Chowdhury vs ABM Fazle Karim Chowdhury and others 2003 BLD (AD) 215 = 9 BLC (AD) 10.

11. In the aforesaid decision considering various decisions in the cases namely, Kamaraja Nadar, appellant vs Kunju Thevar and others, respondents reported in AIR 1958 (SC) 687, MKarunanidhi, appellant vs HV Handa Na & others, respondents and R. Rangasmi, petitioner vs VCR Rajappa and another, respondents and AChindrasekharan, appellant vs PS Manian and others, respondents, reported in AIR 1983 558, the moot point involved in the instant appeal has been considered and decided as follows :

“20…………………………………………………………………
The learned Single Judge committed an error of law in not holding that the meaning and concept of the word 'petitioner' shall deposit does not mean that the petitioner shall, in person, have to deposit and not by anyone on his behalf and if so the Election Petition shall not be registered; that there being no such consequential term that is to say, the defaulting clause, to the effect that unless the deposit is made by the, appellant himself in person, the Election petition will not be entertained and it shall be dismissed in limini So, the argument of RafiquI Huq being that the deposit as made on behalf of the appellant through his learned Advocate, Zarullah Chowdhury is quite valid in terms of the provisions of Article 49(4) of the Order, 1972 is of substance and further we hold that the term 'petitioner’ as quoted in Article 49(4) of the Order, 1972 as (amended) does not mean the petitioner himself and may be somebody on his behalf and this part of the said order, in our view, is directory."

With the aforesaid observations this Division set aside the decision of the learned Single Judge.

12. The same point being involved in the instant appeal before us Mr. Khandker Mahbubuddin Ahmed, on perusal of the aforesaid judgment of the Appellate Division, finds it difficult to oppose the appeals, and candidly submits that the election dispute may be thrashed out by the High Court Division in accordance with law.

13. We have considered the submissions and perused the materials on record. In view of the judgment of this Division in Civil Appeal No.112 of 2002 as referred to above, we do not find any reason to hold any contrary view. The decision of the Single Judge of the High Court Division thus calls for interference. As such this appeal must succeed.

In the result, the appeal is allowed without any order as to costs. The findings and decisions of the learned Single Judge are set aside.

Ed.

Sabera Khatun and others Vs. Sena Kalyan Sangstha and others, 2 LNJ (2013) 591

Case No: Civil Revision No. 2788 of 2006

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Mahbubey Alam,Mr. Zainul Abedin,,

Citation: 2 LNJ (2013) 591

Case Year: 2013

Appellant: Sabera Khatun and others

Respondent: Sena Kalyan Sangstha and others

Subject: Remand of a Case,

Delivery Date: 2013-02-07

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

Sheikh Abdul Awal, J.

Judgment
7.02.2013
and 12.02.2013

Sabera Khatun and others

..... Petitioners.

-Versus-

Sena Kalyan Sangstha and others

….Defendant-opposite parties.

Code of Civil Procedure (V of 1908)
Order XLI, Rule 31
The Appellate Court, without discussing the evidence on record, had abruptly reversed the findings of fact arrived at by the trial court on the point of maintainability of the suit is not a proper judgment of reversal.

On perusal of the judgment of the appellate Court and trial Court below as well it appears that trial Court had considered the material evidence in detail in coming to its finding of title and possession in favour of the plaintiffs, but the appellate Court, without discussing the evidence, had abruptly reversed the findings of fact arrived at by the trial Court on the point of maintainability of the suit. Thus it appears that the impugned judgment of the appellate Court was not a proper judgment of reversal. ....(30)

Code of Civil Procedure (V of 1908)
Order XLI, Rules 27 and 37
In order to determine the real question in controversy the defendant, Sena Kalyan Sangstha is permitted to exhibit registered deed dated 4.10.1980 in accordance with law. The court of appeal shall consider all aspects of the case and decide the appeal afresh. Accordingly, the case is sent back on remand to the Appellate Court...(31 and 32)

27 DLR 170; 40 DLR (AD) 116; 28 DLR 27; 5 BLC (AD) 76; AIR 1946 All 389; 8 BLT (AD) 185; 3BLT 245; PLD 1952 Lahore 545; 10 DLR (WP) 14 = PLD 1957 Lahore 574; AIR 1956 (Andhra) 250; AIR 1957 Nagpur 15; 53 DLR (AD) 110; AIR 1991 SC 2027 (Para2); 7 BLT 195 ref.

Mr. Zainul Abedin with
Mr. A.T. M. Alamgir with
Ms. Sadia Arman, Advocates

….For the petitioners.

Mr. Mahbubey Alam with
Mr. Md. Mozammel Hossain with
Mr. Toufique Anwar Chowdhury, Advocates.

….For the opposite party Nos. 1 and 2.

Civil Revision No. 2788 of 2006

JUDGMENT

Sheikh Abdul Awal, J.

This Rule was issued calling upon the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated 30.7.2006 (decree signed on 6.8.2006) passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No. 552 of 2002 allowing the appeal and reversing those dated 10.11.2002 passed by the learned Joint District Judge, Commercial Court No.2, Chittagong in Other Class Suit No.5 of 2002 decreeing the suit should not be set-aside.

The petitioners as plaintiffs brought the aforesaid Other Class Suit No. 68 of 2000 in the Court of Joint District Judge, Commercial Court No.2, Chittagong impleading the opposite parties as defendants for declaration of title and confirmation of possession in the suit land and for further declaration that the B.S record of right is wrong and that the suit land is not the abandoned property. The suit was subsequently renumbered as Other Class Suit No. 5 of 2002. The case of the plaintiffs in short is that the suit land originally belonged to Fayezulla and others and it was recorded accordingly in their names in R.S. record of right, who sold the suit land to Yusuf Abdul Karim and handed over possession along with all papers of the suit land to Yusuf Abdul Karim and accordingly the suit land has been recorded in his name being P.S. Khatian No. 17; that Yusuf Abdul Karim while in possession orally gifted the suit land to his faithful and dutiful personal driver Md. Abdur Rahman in 1965, who by spending huge money repaired the building standing on the suit land and extended it by constructing 4 rooms. Later on, Yusuf Abdul Karim by swearing an affidavit on 9.3. 1970 confirmed his oral gift to Md. Abdur Rahman. The present plaintiff-petitioners are the heirs of Abdur Rahman (now deceased) and they acquired the suit land by inheritance; that Abdur Rahman, the predecessor of the plaintiffs due to his serious illness could not take step for recording the suit land in B.S. record of right. The plaintiff No. 1 ( wife of Abdur Rahman) being a women also could not take any appropriate step for recording the suit land in their name though she learnt from her close relation that the suit land was recorded in the name of Abdur Rahman and so believing it took no other steps but they have been in possession in the suit land for more than 12 years from the time of their predecessor and the defendants did not put any obstruction so long in the long possession of the suit land by the plaintiffs; that on 2.3.2000 the plaintiff No.3, Md. Fakrul Islam learnt from defendant No.2 that the suit land has been recorded in the name of the defendant No.1 in the B.S. Khatian and so they would be evicted from the suit land and then the plaintiffs procured a certified copy of the B.S Khatian on 3.4. 2000 from the local revenue office and came to know about it; that the defendants have got no title, interest and possession in the suit land, who on the basis of wrong record of right are trying to evict the plaintiffs from the suit land and hence, the suit.

The defendant Nos. 1 and 2 contested the suit by filing a joint written statement denying most of the allegations of the plaint and contending, inter-alia, that the suit building is a part of Enesel Manson of Chattaswrin Road which is the property of Enesel Textile Mills Limited. According to the memorandum of articles of Nur Sons Ltd. Yusuf Abdul Karim, Rashid, A. Karim, Hamid A. Karim and M. A. Sattar were shareholder directors of it, who left this country during liberation war leaving the suit property as uncared position and thereupon, the Government under the provisions of P.O. 16 of 1972 declared the suit property as abandoned property; that the Government by a circular on 14.12. 1972 handed over the suit property along with other 18 industries to the defendant No.1, who took possession therein and accordingly B.S. Khatian in respect of suit property has been recorded in the name of defendant No.1 correctly and the defendant No.1 paid rent to the Government up-to 1406 B.S; that Abdur Rahman was driver of Nur Sons Ltd. and he used to reside in the suit building and after the death of Abdur Rahman on humanitarian ground the family of Abdur Rahman was permitted to reside therein; that when the defendant Nos.1 and 2 asked the plaintiffs to vacate the suit land the plaintiffs by creating a false document dated 9.3.1970 instituted the suit falsely and as such the suit is liable to be dismissed.

The learned Assistant Judge on the pleadings of the parties framed the following issues for determination:-

(i) Whether the suit is maintainable in its present form and manner?
(ii) Whether the suit is barred by limitation?
(iii) Whether the suit property is Enesel Textile Mills Ltd.?
(iv) Whether the suit property was rightly declared as an abandoned property?
(v) Whether the plaintiff has right, title and possession in the suit land?
(vi) Whether the plaintiff is entitled to get a decree?
(vii) Whether the plaintiff is entitled to get any other relief?

At the trial plaintiff side examined in all 4 witnesses and defendant side examined in all 5 witnesses and both the parties also exhibited some documents to prove their respective cases. The trial Court on consideration of the facts and circumstances of the case and evidence on record found the claim of the plaintiffs true and decreed the suit as sought for by judgment and decree dated 10.11.2002.

The defendant Nos.1 and 2, thereupon, preferred Other Class Appeal No.552 of 2002 before the learned District Judge, Chittagong challenging the legality of the judgment and decree dated 10.11.2002 which was ultimately heard by the learned Additional District Judge, 1st Court, Chittagong, who was pleased to allow the appeal and set-aside the judgment and decree dated 10.11.2002 by his judgment and decree dated 30.7.2006 on the ground of maintainability of the suit.

Being aggrieved by the aforesaid judgment and decree dated 30.7.2006 passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No.552 of 2002 the present petitioners have come before this Court and obtained the present Rule.

Mr. Zainul Abedin, the learned Advocate appearing for the petitioners in the course of his argument after placing the judgments of two Courts below, deposition of witnesses and other materials on record submits that the learned Judge of the appellate court below misconceived the facts of the case and the judgment of the learned Assistant Judge as well and wrongly set-aside the same. He further submits that the learned Joint District Judge erred in law in reversing the judgment of the Trial Court without properly considering the vital aspect of the case that the suit land as described in the plaint   was not enlisted as an abandoned property and the case made out by the plaintiff-petitioners and the same has occasioned failure of justice. Finally, Mr. Zainul Abedin with all seriousness    criticized the observation of the appellate Court below that the appellate Court below as last court of fact, without adverting the material findings of the trial Court and without properly considering the facts of the case and the case made out by the petitioners had abruptly reversed the findings of fact arrived at by the trial Court on the point of maintainability of the suit in a summary manner and the same has occasioned failure of justice.

Mr. Mahbubey Alam, the learned Advocate appearing for the defendant-opposite parties, on the other hand, submits that the original owner of the suit property Yusuf Abdul Karim left Bangladesh before liberation leaving the suit property with uncared condition and   after liberation the property in question was found abandoned inasmuch as the whereabouts of the owner of the suit property, Yusuf Abdul Karim was not known to the Government and so it was taken over by the Government declaring as an abandoned property and thereafter, the Government transferred the suit property by a registered deed of sale dated 4.10.1980 to Sena Kallyan Sangstha. Mr. Mahbubey Alam further submits that it is apparent from the record that the property in question transferred by the Government to Sena Kallyan Sangstha in 1980 and long twenty years after the heirs of Abdur Rahman filed the instant suit claiming the property on the basis of a plea of oral gift without any legal basis whatsoever.

Referring to the affidavit dated 9.3.1970 Mr. Mahbubey Alam submits that it is the positive case of the plaintiff-petitioners that Yusuf Abdul Karim by swearing an affidavit on 9.3. 1970 confirmed his oral gift to Md. Abdur Rahman (now deceased), the predecessor of the petitioners which appears to be a forged document inasmuch as the alleged affidavit dated 9.3. 1970 clearly shows that stamp purchased in the name of Guru Mia on 20.10.1962 and the same has been done by small letter in a congested manner to complete the document in one page by forging the signature of Yusuf Abdul Karim. He further submits that there is nothing on record to suggest that the so-called oral gift was all acted upon inasmuch as admittedly the plaintiffs or their predecessor, Abdur Rahman neither did pay any rent to the Government nor took any attempt for mutating their name over a period of 30 years and in that view of the matter the learned Additional District Judge was perfectly justified in reversing the judgment and decree of the trail Court on the clear finding that the suit is an abandoned property and as such the suit is not maintainable. Mr. Mahbubey Alam further submits that the Government of People's Republic of Bangladesh has transferred Plot Nos.11,13 and 17 of Mouza-Joypahar to Sena Kallyan Sangstha on 4.10.1980 by a registered deed treating the same as abandoned property whereas the plaintiffs produced alleged deed of gift claiming the ownership in P.S Plot No. 21 without having any valid document whatsoever and the appellate Court below after discussion of evidence on record has rightly come to the conclusion that the trial Court committed wrong in decreeing the suit.

Finally, Mr. Mahbubey Alam points out that PW-1, Md. Fakhrul Islam, son of Abdur Rahman in his cross-examination admitted that P.S. Plot No.21 corresponds to B.S. Plot No.17 and since Sena Kallyan Sangstha purchased Plot No.17 in the year 1980 and thus, the claim of the plaintiff-petitioners that holding No.281 does not correspond to the suit land is not at all relevant for deciding the instant suit.

Ms. Sadia Arman, the learned Advocate appearing for the petitioners to refute the argument of Mr. Mahbubey Alam that the appellate court below committed no wrong in holding that the suit is not maintainable   upon referring to the order of the trial Court dated 4.6.2002 submits that after filing written statement the defendant-opposite parties filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint on 4.6.2002 on the ground that the suit is not maintainable as the suit property is an abandoned property, the trial court below rejected the said application against which the defendants did not prefer any appeal or revision. Ms. Sadia Arman, thereafter, upon   referring to the schedule of the plaint and gazette notification submits that the land in question mentioned in the gazette notification is not the suit and there is nothing on record to show that the Government formed an opinion as to why the suit land should be declared abandoned property and in that view of the matter the findings of the appellate Court below on the point of maintainability is perverse being contrary to law, evidence and materials on record.

I have heard the learned Advocates of both the sides and perused the record including the plaint, the deposition of the witnesses and the impugned judgment as well as judgment of the trial Court. Now, to deal with the contentions raised by the learned Advocates for the respective parties it would be convenient for me to decide first of all the maintainability of the suit.

On perusal of the record, it appears that the petitioners   as plaintiff instituted Other Class Suit No.68 of 2000 in the Court of Joint District Judge, Commercial Court No.2, Chittagong for declaration of title and confirmation of possession in the suit land measuring 4 gandas of land along with further declaration that the suit land is not an abandoned property and the B.S. record of right in respect of the suit land is wrong. It further appears that the defendant-opposite parties after filing written statement filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint on 4.6.2002 stating that: বিবাদী তাহার লিখিত বর্ননায় নালিশী সম্পত্তি পরিত্যওু সম্পত্তি হয় ও অত্র মোকদ্দমা পি, ও, ১৭/৭২ মতে বারিত বলিয়া আপত্তি উথুাপন করে। ......এমতাবস্থায় পরিস্থিতিতে অন্যান্য issue শুনানীর জন্য গৃহীত হওয়ার পূর্বে মোকদ্দমায় রক্ষনীয়তা সম্পর্কে issue পূর্বে শুনানীর জন্য গ্রহন করা প্রয়োজন। অন্যথায় বিবাদীর সমুহ ক্ষতি হইবে। The trial Court below upon hearing the said application by its order No. 51 dated 4.6.2002 rejected the application and admittedly the defendant-opposite parties did not prefer any appeal or revision against that order dated 4.6.2002.

At the trial both the parties led evidence to prove their respective cases. The Trial Court after closing of the evidence and hearing argument of the parties decreed the suit, holding that the plaintiff- petitioners have been able to prove unbroken possession in the suit property for the last 36/37 years and the suit is not barred by any law. In appeal, the learned Joint District Judge, Commercial Court No.2, Chittagong by the impugned judgment and decree dated 30.7.2006 set-aside the judgment and decree dated 10.11.2002 mainly on 3 (three) counts that : (i) the suit itself is not maintainable as the suit land is an abandoned property (ii) the plaintiffs could not prove their oral gift as well as affidavit with regard to declaration of oral gift and (iii) the plaintiffs did not pay any rent, tax and bill to the Government in respect of the suit land over a period of 32 years i.e. 1970-2002.

Now, to justify the finding of the Court of appeal below that the suit itself is not maintainable since the suit property is an abandoned property, I feel it necessary to quote hereunder the schedule of the plaint for having a better view of the dispute in question which reads as follows:
Schedule to the plaint.

জেলা- চট্রগ্রাম, থানা- কোতয়ালী, মৌজা- জয়পাহাড়, আর, এস, খতিয়ান নং- ৩২ এর অধীনে আর, এস ১৫ দাগের অন্দর ও তৎসামিলের পি, এস, খতিয়ান নং- ৯৭ এর অধীনে পি, এস, ২১ নং দাগের অন্দর তৎসামিলে বি, এস, খতিয়ানে নং- ৩৬ এর অধীনে বি, এস, দাগ নং- ১৭ এর ২০১২ শতক ভূমির অন্দর ৮০০ শতক বা ৪(চার) গন্ডা ভূমি অতিদসিহত তদসিহত সেমি পাকা দালানগৃহ ও খালি জায়গাসহ চিহিুত মতে দখলীয় বটে।

চক নং- উত্তরে ইউছুপ আব্দুল করিম এর অবশিষ্ট জায়গা, দক্ষিনে- এন, জি, মোবারক ও ডাঃ তৌহিদুল আলম, পূর্বে- সিটি কর্পোরেশনের ড্রেন, পশ্চিমে- জনসাধারনের জন্য সিটি কর্পোরেশনের পথ।

Ms. Sadia Arman, the learned Advocate upon referring Ext.5, tax receipt submits that the suit property as described in the plaint is not an abandoned property inasmuch as the property in question as described in Bangladesh Gazette dated 23.9.1986 does not suggest that the suit property is an abandoned property whatsoever. She adds that Ext.5 tax receipt of City Corporation clearly shows that holding No.1380/1503 is the suit property belonged to the plaintiff-petitioners.

In order to consider whether the suit property as descried in schedule of the plaint let me quote the property in question as described in Bangladesh Gazette dated 23.9.1986 which runs as follows:

ক্রমিক নং- ৮৬

হোল্ডিং নং ৮৩৫/৯৩৭, বাগমনিরাম (আলফরিদ চেম্বার) ২৮১, চট্বেশ্বরী রোড, চট্রগ্রাম।

On comparison of the above schedule of the plaint, Ext.5, tax receipt of City Corporation and the holding of the property in question as described in Bangladesh Gazette dated 23.9.1986 it appears to me that the suit property as described in the plaint and Ext.5 and the property in question as described in the list of the abandoned property of Bangladesh Gazette dated 23.9.1986 are not same and similar. Therefore, I find no difficulty whatever in holding that the Court of appeal below was plainly wrong in setting-aside the judgment and decree of the trial court on the ground that the suit was not maintainable since the suit property enlisted as an abandoned property. My view is, therefore, that the finding of the Court of appeal below is a product of non application of judicial mind and suffers from patent illegality.

Having realized the difficulty, Mr. Mahbubey Alam, the learned Advocate at the fag end of the hearing upon placing an application under Order 41, Rule 37 of the Code of Civil Procedure for allowing the opposite parties to adduce additional evidence submits that after commencement of hearing of the instant case Sena Kallyan Sangstha on search found the original copy of the registered sale deed dated 04.10.1980 and the main question now raised before this Court is as to whether the land mentioned in the gazette notification is the suit land or not and for determination of the said issue the sale deed dated 04.10.1980 is required to be admitted as additional evidence.

On the contrary, Ms. Sadia Arman, the learned Advocate submits that the revisional court may in appropriate cases consider additional evidence, but in the instant case the suit land of the plaintiffs is not abandoned for the allowing reasons:

(a) The plaintiff petitioners are citizens of Bangladesh who came into ownership and possession of the suit land before the PO 16 of 1972 was passed.
(b) The Government formed no opinion as to why the suit land should be declared abandoned.
(c) There is no clear order declaring the suit land as abandoned property.
d) There is no demarcation or description of the property that has been declared to be abandoned on any of the documents produced by the defendants.
(e) Although the documents mention Enesel (N.S.L.) Mansion as abandoned, there is no evidence to show that the suit land was ever a part of Enesel Mansion.
f) The plaintiff petitioners received no notification from the Government that the suit land has been declared abandoned and, for these reasons it is needless to admit the sale deed dated 04.10.1980 as additional evidence.

Ms. Sadia Arman has also emphatically urged another aspect before me that the deed dated 09.03. 1970 is more than 30 years old and therefore the Court is entitled to presume that it is a genuine document. More so, under Muslim law, the gift has been made beyond recall, and there was no need to register the gift under the law of those times, when registration was not mandatory as it is today. The learned Advocate also forcefully agitated that even if the said Deed is defective and unregistered, the plaintiffs have been in possession beyond the statutory period of limitation to the complete ouster of the defendants and thus their imperfect title has been perfected by the passage of time.

To this, Mr. Mahbubey Alam, upon referring a decision reported in 51 DLR (AD) 141 submits that since the document was executed on 04.10.1980 and in the meantime 30(thirty) years time has been passed this Court can admit the same into evidence under Section 90 of the Evidence Act, considering the fact that same was executed on behalf of the president in favour of a statutory organization. He further contends to create an ambiguity regarding identification of the suit land the plaintiffs are now submitting before this Court for the first time that the suit plot has not been made an abundant property though it is apparent from the record that the suit Plot No. 21 was recorded as B.S Plot No.17 which includes land of some other plots showing an area of .2018 acre which has been recorded in the name of Sena Kallyan Sangstha and sale deed dated 04.10.1980 clearly shows the sale of Plot No. 17 along with other plots of Mouza Joypahar and it has been mentioned in the schedule of the plaint B.S. plot No. 17 with an area of .2012 acre which clearly corresponds to the sale deed dated 04.10.1980 and exhibit Kha B.S. Khatian of B.S. plot No. 17 and as such to resolve the dispute whether the land mentioned in the gazette notification is the suit land or not and for determination of the said issue the sale deed dated 04.10.1980 is required to be admitted as additional evidence.

Finally, Mr. Mahbubey Alam, the learned Advocate submits that the trial Court below decreed the suit on the finding that the enlistment of the suit property in the list of the abandoned property was illegal and defective and the plaintiffs against that finding did not file any revision or appeal before the higher Court and now, it does not lie in the mouth of the plaintiffs that the suit property has been enlisted as an abandoned property.

In reply, Ms. Sadia Arman submits that in the facts and circumstance of the case the application under Order 41, Rule 37 of the Code of Civil Procedure filed by the defendant-opposite parties is plainly misconceived and not tenable in law inasmuch as the defendant-opposite parties had ample opportunity to produce the so-called deed at the trial stage, or even at the appellate stage, and make it an exhibit, but they did not produce any such document and as such they cannot be allowed to produce such document before this Revisional Court. She further contends that the defendant-opposite parties did not even produce their deed when the instant Civil revision was filed, six years ago in 2006 and the opposite parties with the sole purpose of delaying the judgment and defeating the ends of justice have produced such document at the judgment stage when all submissions have already been made.

It appears that the trail Court after discussion of evidence on record has come to the conclusion that admittedly the plaintiffs as successor of Abdur Rahman are in possession of the suit land over a period of 36/37 years and the suit is not barred by any law and as such the plaintiff are entitled to get decree, as prayer for. In coming to this conclusion the trial Court has noticed that the suit property has not been specifically mentioned in exhibit-ka (gazette of the abandoned property).

On a query by me Ms. Sadia Arman admits that the trial court below committed wrong in observing that the suit property was illegally included in the list of abandoned property. She next submits that from the materials on record it appears that the materials on record justify the judgment and decree of the trial court but the appellate court below without adverting any of the material findings of the trial Court abruptly in a sleep-short manner set-aside judgment of the trial court and the same has occasioned failure of justice.

Ms. Sadia Arman further submits that the so-called deed of the opposite parties does not show anywhere that any land answering to the description of the suit land was transferred by the Government, either with reference to the holding number, or by any other reference and therefore the photocopy of the purported deed is quite redundant to prove any point. The other point agitated by Ms. Sadia Arman that there is no reason to send the case back on remand to the lower appellate Court since evidence on all material points are there on record. Ms. Sadia Arman to fortify her lengthy argument has relied on the decisions reported in 27 DLR (1975) 170, 40 DLR (AD) 116, 28 DLR (1976) 27, 5 BLC (AD) 76, AIR(33) 1946 Allahabad 389, 8 BLT (AD) 185, 3 BLT 245, PLD 1952 Lahore 545, 10 DLR (WP) 14 = PLD 1957 Labore 574, AIR 1956 (Andhra) 250, AIR 1957 ( Nagpur )15, 53 DLR (AD) 110, AIR 1991 Supreme Court 2027 (Para 2), AIR 1956 (Andhra) 250, AIR ( 33) 1946 (Allahabad) 389, 7 BLT (1999)195.

On a close perusal of the entire evidence and materials on record, it appears that the plaintiff-petitioners for the first time raised before this Court as to whether the land mentioned in the gazette notification is the suit land or not. It further appears that DW1, deposed on behalf of the Sena Kalyan Sangstha who filed a photocopy of the aforesaid deed and stated as follows: "বাংলাদেশ সরকার কর্তৃক সেনা কল্যান সংস্থাকে প্রদত্ত নালিশী সম্পত্তি সংত্রুামত original deed Hl photocopy জমা দিলাম। But the same was not marked as Exhibit. It also appears that defendant, Sena Kalyan Sangstha stated in its written statement that "" সরকার ৪/১০/১৯৮০ ও ৩২১৯৮ নং দলিল মূলে এনিসেল ম্যানসেনে তথা মিউনিসিপ্যাল হোল্ডিং নং ২৮১ এবং ১০২৫ আর, এস ১৭/৪৬/১১৯/১২০ খতিয়ানের জমি ও গৃহে সার্ভেন্ট কোয়ার্টার, দারোয়ান কোয়াটার ও ড্রাইভার কোয়ার্টার সহ সেনা কল্যান সংসহার বরাবরে হসতামতর করে।''

It is also found that the Government of Bangladesh being defendant No.3 in the suit did not appear and contest the suit claiming the suit property as abandoned property by producing any paper. Furthermore, the admitted evidence on record both oral and documentary suggests that the suit land has a distinct holding number and there is no demarcation or description of the suit land as described in the plaint has been declared to be an abandoned property.

On perusal of the judgment of the appellate Court and trial Court below as well it appears that trial Court had considered the material evidence in detail in coming to its finding of title and possession in favour of the plaintiffs, but the appellate Court, without discussing the evidence, had abruptly reversed the findings of fact arrived at by the trial Court on the point of maintainability of the suit. Thus it appears that the impugned judgment of the appellate Court was not a proper judgment of reversal.

In view of all the facts noticed above I am of the view that the case should be decided by taking into consideration the case of the plaintiffs and defendants as well and for the said purpose the defendant, Sena Kalyan Sangstha will be permitted to exhibit registered deed dated 4.10.1980 in accordance with law for determining the real question in controversy. The Court of appeal below shall consider all aspects of the case and decide the appeal afresh. Since the defendant opposite parties are themselves to blame for their predicament but now they are getting a favourable order, they should bear the cost of the plaintiffs in the case.

In the result, the Rule is made absolute. The impugned judgment and decree dated 30.7.2006 passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No.552 of 2002 is set-aside and the case is remanded to the appellate court for deciding the appeal afresh in the light of the observation made above.

However, in the facts and circumstance of the case the defendant opposite party No.1, Sena Kallyan Sangstha is restrained by an order of injunction not to disturb with the peaceful possession of the plaintiff-petitioners in any manner till disposal of the appeal.

Let a copy of this judgment along with the lower Court's record be sent down at once.

Ed.

Sabita Dutta Vs. Manager, Cinema Palace Chittagong and another, 51 DLR (AD) (1999) 215

Case No: Civil Petition for Leave to Appeal No. 656 of 1997

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,,

Citation: 51 DLR (AD) (1999) 215

Case Year: 1999

Appellant: Sabita Dutta

Respondent: Manager, Cinema Palace Chittagong

Subject: Labour Law,

Delivery Date: 1998-6-7

Supreme Court
Appellate Division
(Civil)

Present:
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.

Sabita Dutta
………………….Petitioner
Vs.
Manager, Cinema Palace Chittagong and another
…......................... Respondent

Judgment
June 7, 1998.

The Industrial Relations Ordinance, 1969
Section 34
The Employment of Labour (SO) Act, 1965
Section 25
High Court Division rightly held that the petitioner (a retrenched gate-keeper of a Cinema hall) being not a worker as defined under the Industrial Relations Ordinance, 1969 her application does not lie before the Labour Court under section 34 of the said Ordinance and the same could not be converted into an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965 as no statutory compliance under that section was made……….(8 & 9)

Cases Referred to-
James Finlay Ltd. vs. Chairman, Second Labour Court Dhaka 33 DLR (AD) 58.

Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate, (Subrata Chowdhury, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner.
AKM Halim, Advocate (appeared with the leave of the Court), instructed by AKM Shahidul Huq, Advocate-on-Record — For the Respondent No. 1.
Not Represented —Respondent No. 2.

Civil Petition for Leave to Appeal No. 656 of 1997.
(From the Judgment and order dated 01-06-97 passed by the High Court Division in Writ Petition No. 1778 of 1991)

JUDGMENT

Latifur Rahman J.

This petition for leave to appeal is against the judgment and order dated 1-6- 97 passed by a Division Bench of the High Court Division in Writ Petition No. 1778 o 1991 (Dhaka)/Writ Petition No. 47 of 1989 (Chittagong), making the Rule absolute and thereby reversing the decision and award dated 22-1-86 passed by the Chairman, Labour Court, Chittagong in Industrial Dispute Case No. 835 of 1983 under section 34 of the Industrial Relations Ordinance, 1969 allowing the case of the petitioner.

2. The case of the petitioner Mrs. Sabita Dutta is that, she was a Gate Keeper (Lady) under respondent No. 1 in the Cinema Palace, Chittagong since 1973. She worked in the Cinema hail upto 26- 5-80 till the cinema hall was burnt by fire. After reconstruction of the cinema hall she went to join in her duty but she was not allowed to join. Hence, she filed the case before the Labour Court at Chittagong under section 34 of the Industrial Relations Ordinance 1969.

3. Respondent No. 1 in his written statement before the Labour Court stated that the post of gate keeper (lady) was abolished from the cinema hail as the management abolished the separate female class in the cinema hall. Hence the petitioner was retrenched after giving her lawful dues.

4. Before the Labour Court respondent No.1 did not appear. Consequently the Labour Court after taking the evidence of the petitioner allowed the case. Subsequent thereto, respondent No.1 filed an application under Order 9 rule 13 of the Code of Civil Procedure for restoration of the labour case. But the same was dismissed. Thereafter respondent No. 1 filed the writ petition challenging the maintainability of the case under section 34 of the Industrial Dispute Ordinance, 1969 contending that the petitioner was not a ‘worker’ within the meaning of Section 2(XXVIII) of the said Ordinance and, as such, an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965 was maintainable.

5. Before the High Court Division the petitioner did not appear.

6. The learned Judges of the High Court Division on a reference to the decision in the case of James Finlay Ltd vs Chairman, Second Labour Court, Dhaka, 33 DLR (AD) 58 held that the case before the Labour Court was not maintainable and consequently the judgment of the Labour Court was declared to have been passed without any lawful authority and is of no legal effect.

7. Dr. Kamal Hossain, learned Advocate appearing for the employee petitioner, submits, first, that the learned Judges of the High Court Division on wrong interpretation of the reported decision in 33 DLR (AD) 58 held that the petitioner’s case is not maintainable. He secondly, submits that this is a fit case which should be remanded to the Labour Court for a decision as to whether the application under section 34 of the Ordinance can be converted into an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965.

8. In the Industrial Relations Ordinance, 1969 “worker” has been defined in section 2(XXVIII), wherein it refers to a dismissed or retrenched employee in course of an industrial dispute. There being no case of such a nature it is palpably clear that the application under section 34 of the Ordinance was not maintainable. Hence, the learned Judges of the High Court Division rightly held that the petitioner being not a worker as defined under the Ordinance her application does not lie before the Labour Court, In that, reported decision the definition of worker as given in both the statutes have been clearly noticed wherein it has been said that an individual worker after compliance with the formalities as contemplated under section 25 (1)(a)(b) of the Standing Orders Act, 1965 can maintain an application before the Labour Court. The principle of that decision applies with full force in this case. There is hardly any scope to distinguish this case with the reported decision.

9. With regard to the last submission of the learned Advocate for the petitioner as to remitting the case for converting the same into one under section 25 of the Standing Orders Act, it can be said that in the absence of compliance with the statutory requirements as contemplated under section 25 of the Act of 1965 no application can be converted from section 34 of the Ordinance. Hence, there is no scope for remitting the case to the Court below as argued by the learned Advocate for the petitioner.

10. Further, there was no argument, or material before the High Court Division for providing such opportunity of converting the application before the Labour Court. Consequently, the petition is devoid of any substance.
It is, therefore, dismissed.

Ed.

Sadaruddin Ahmed Chisty Vs. Bangladesh and others, 50 DLR (AD) (1998) 119

Case No: Criminal Petition for Leave to Appeal No. 27 of 1995

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Abdur Rashid,,

Citation: 50 DLR (AD) (1998) 119

Case Year: 1998

Appellant: Sadaruddin Ahmed Chisty

Respondent: Government of Bangladesh

Delivery Date: 1997-3-24

Supreme Court
Appellate Division
(Criminal)

Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Chowdhury, J.

Sadaruddin Ahmed Chisty
…………….Petitioner
Vs.
Bangladesh and others
…………...Respondent

Judgment
March 24, 1997.

The Code of Criminal Procedure (V of 1898)
Section 99A(1)(c)
Once the Special Bench of the High Court Division has applied its mind in terms of section 99D of the Code of Criminal Procedure by going through the offending books there is no relevance of the question that grounds of forfeiture of the books are not covered by the requirements of section 99A of the said Code…………….. (4)
Under section 99A of the Code of Criminal Procedure no satisfaction of the Government is to be indicated to forfeit a publication. It is enough if it “appears to the Government” that certain publications contain any matter as is referred to in sub-section (1) of section 99A of the said Code. The Government is only required to state by Notification in the Official Gazette the grounds of its opinion, not its satisfaction or formation of opinion………………….(6)
(iii) Under section 99D of the Code of Criminal Procedure Special Bench of the High Court Division is to be negatively satisfied that the forfeited publication does not contain any matter referred to in sub-section (1) of section 99A of the said Code. Special Bench having found that there are several matters in the six books which contain matters referred to in sub-section (1) of section 99A there is no ground to interfere with its decision.

Case Referred to-
The Working Muslim Mission & Literary Trust, Lahore vs. The Crown, 8 DLR (FC) 110.

Lawyers Involved
Md. Abdur Rashid, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner.
Not Represented — The Respondents.

Criminal Petition for Leave to Appeal No. 27 of 1995.

JUDGMENT

Mustafa Kamal J.

This petition for leave to appeal by the petitioner is from the judgment and order dated 16-8-94 passed by a Special Bench for the High Court Division under section 99D of the Code of Criminal Procedure in Criminal Miscellaneous Case No. 464 of 1994 making the rule absolute in part in relation to two forfeited books and discharging the Rule in part in relation to six forfeited books.

2. Eight books written by the petitioner were forfeited by the Ministry of Home Affairs by a Notification dated 8-12-93 published in the Bangladesh Gazette on 30-12-93. Two books written by another person were also similarly forfeited by the Government by a separate Notification of the same date. The forfeitures were made under section 99A(1)(a) of the Code of Criminal Procedure. In respect of the forfeiture of eight books the petitioner filed Criminal Miscellaneous Case No. 464 of 1994 under section 99B of the Code of Criminal Procedure and in respect of forfeiture of the other two books the author thereof filed Criminal Revision No. 668 of 1994. Both the cases were heard by a Special Bench of the High Court Division composed of three Judges, as required under section 99C of the Code of Criminal Procedure. The Special Bench discharged the Rule in Criminal Revision No.668 of 1994. The petitioner’s petition for leave is confined to the six books in respect of which the order of forfeiture dated 8-12-93 and the Notification dated 30-12-93 have been sustained by the Special Bench.

3. Mr. Md Abdur Rashid, learned Advocate for the petitioner, submits that the grounds of forfeiture stated in the Notification are not covered by section 99A(1) (a) of the Code of Criminal Procedure. He points out that the reasons given for forfeiture are:
ÒBmjvg ag©vej¤^x‡`i agx©q Abyf~wZ Z_v †gŠwjK wek¦v‡mi cwicš’x AvcwËKi e³e¨ cÖKvwkZ nIqvqÓ [because of objectionable matters published which are subversive to the basic religious belief of Islamic believers] and these reasons are not enough to attract the mischief of section 295A of the Penal Code. He relies upon the decision in the case of the Working Muslim Mission & Literary Trust, Lahore vs. The Crown, 8 DLR (FC) 110.

4. We have perused the Notification at page 146 of the paper book. Section 99A requires the Government to state the grounds of its opinion by Notification in the official gazette. It does not require the Government to repeat ad verbatim the ingredients of section 295A. Section 99D of the Code of Criminal Procedure requires that the Special Bench shall, if it is not satisfied that the forfeited books contained any such matter as is referred to in sub-section (1) of section 99A, set aside the order of forfeiture. In other words the Special Bench has the responsibility of being negatively satisfied that the forfeited books do not contain any such matter as is referred to in the said sub-section.

5. The Special Bench appears to have gone through all the books and found that at least two books do not contain any matter as is referred to in sub-section (1) of section 99A, but in respect of the other six books the Special Bench was not so satisfied. As such, we do not think that the contention of the learned Advocate that the grounds of forfeiture stated in the Notification are not covered by section 99A of the Code of Criminal Procedure has any more relevance once the Special Bench has applied its mind in terms of section 99D of the Code of Criminal Procedure.

6. Mr. Md Abdur Rashid next contends that in the impugned Notification no satisfaction of the Government is indicated.

7. Under section 99A no satisfaction of the Government is to be indicated. To forfeit a publication it is enough if it “appears to the Government” that a certain publication contains any matter as is referred to in sub-section (1) of section 99A. The Government is only required to state by Notification in the Official Gazette the grounds of its opinion, not its satisfaction or formation of opinion.

8. Mr. Md Abdur Rashid next submits that in exercising its jurisdiction under section 99D of the Code of Criminal Procedure the Special Bench was required to be satisfied as to whether the grounds of forfeiture stated in the Notification are covered by section 99A of the Code of Criminal Procedure or not, but instead of doing so it made a roving inquiry as to whether the grounds of forfeiture existed or not.

9. We have already noticed that under section 99D of the Code of Criminal Procedure the Special Bench is to be negatively satisfied that the forfeited publication does not contain any matter referred to in sub-section (1) of section 99A. In doing so the Special Bench took great pains in going through all the books and found that except for two books there is nothing to show that the rest do not contain any such matter. On the contrary, the Special Bench found there are several matters in the six books which contained matters referred to in sub-section (1) of section 99A.

We therefore do not find any ground for interference.

The petition is dismissed.

Ed.

Sadharan Bima Corporation and another Vs. LG Engineering Co. Ltd and others, VII ADC (2010) 413

Case No: Civil Petition for Leave to Appeal No. 1198 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Aminul Hoque,,

Citation: VII ADC (2010) 413

Case Year: 2010

Appellant: Sadharan Bima Corporation

Respondent: LG Engineering Co. Ltd.

Subject: Limitation,

Delivery Date: 2010-1-6

Supreme Court
Appellate Division
(Civil)

Present:
Md. Tafazzul Islam, CJ.
Md. Abdul Matin, J.
ABM Khairul Haque, J.
Surendra Kumar Sinha, J.

Sadharan Bima Corporation and another
……………..........Petitioners
Vs.
LG Engineering Co. Ltd and others
………………........Respondents

Judgment
January 6, 2010.

The Case of the appellant is that the defendant Nos. 1 to 4 being the Sadharan Bima Corporation and its officers, contested the suit by filing written statement contending amongst others that the suit as framed and filed was not maintainable and it was barred by limitation and that the accident occurred due to rush driving of the truck and therefore the inland carrier is responsible and the damages as claimed is to be recovered from the carrier and accordingly advised the plaintiff.

Lawyers Involved:
Tafilur Rahman, Senior Advocate instructed by Chowdhury Md. Jahangir, Advocate-on-Record-For the Petitioners.
Md. Aminul Hoque, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos.2-5.

Civil Petition for Leave to Appeal No. 1198 of 2009.
(From the judgment and decree dated 04.03.2009 passed by the High Court Division in F.A. No. 437 of 2001.)

JUDGMENT

Md. Abdul Matin J.

1. This petition for leave to appeal is directed against the judgment and decree dated 04.03.2009 passed by the High Court Division in F.A. No. 437 of 2001 dismissing the appeal with cost.

2. The facts, in short, are that the respondent No.1 filed a money suit being Money Suit No. 36 of 1993 in the Court of learned Subordinate Judge, 3rd Court, Dhaka impleading the petitioners as defendants. The said suit was decreed on contest against the petitioners and pro-forma respondent Nos. 3 and 4 and was dismissed ex-parte against respondent No. 2 and pro-forma respondent No. 5.

3. The respondent No.1 as plaintiff filed Money Suit No. 36 of 1993 contending amongst others that the plaintiff on behalf of the pro-forma defendant No. 6 Bangladesh Power Development Board imported equipment for installation of a 132/230 K.V. Sub-station under the financial assistance from Asian Development Bank and that the equipments were imported from Hamburg, Germany. The sub-station was to be installed at Haripur in the District-Narayangonj. In terms of the contract of the plaintiff with the pro-forma-defendant No.6 the equipments were required to be transported from Germany to the jobsite via Chittagong and accordingly the plaintiff purchased an open insurance policy as well as marine policy covering all risks on the equipments during the transportation of the equipments from Humburg, Germany to Chittagong through sea by ship and from Chittagong to that job-site at Haripur-Hasanabad through road on truck. The equipments arrived at Chittagong in container in 29 packages and while transporting the said 29- packages of equipments from Chittagong Port to the job site in 16 trucks, a truck containing one package containing a set of circuit breaker number as FAB No.3123969 and package was numbered as 550315, met an accident near Feni and the fact of said accident was communicated to all concern and as required a survey was held by James Finly representing the Lloyed Survey Company and according to the said surveyor the circuit breakers were damaged and neither the driver nor the truck was responsible for the accident. The survey report was sent to all concern and no objection was raised against the survey report. Thereafter the plaintiff by its letter dated 26.05.1999 submitted its loss claim for Tk.33, 98,244.05. The defendant No.1, Shadharan Bima Corporation, instead of making payment of the claimed amount in terms of the policy, advised the plaintiff to file a suit against the inland carrier for damages by its letter dated 08.05.1993 and faced with such situation the plaintiff was compelled to file the suit.

4. The case of the appellant is that the defendant Nos.1 to 4 being the Sadharan Bima Corporation and its officers, contested the suit by filing written statement contending amongst others that the suit as framed and filed was not maintainable and it was barred by limitation and that the accident occurred due to rush driving of the truck and therefore the inland carrier is responsible and the damages as claimed is to be recovered from the carrier and accordingly advised the plaintiff. The plaintiff failed to furnish the required documents called for by the defendant No. 4 and though the photograph of the damaged goods were taken but the photo of the track, carrying the goods were not taken and that the defendant Nos. 1 to 4 are not liable for the damages as claimed and that the defendant No.5 being the inland carrier is liable for the damages.

5. The case was heard by the learned Subordinate Judge (now Joint District Judge), 3rd Court, Dhaka and upon consideration of the material evidence on record the learned Subordinate Judge was pleased to decree the suit on contest against the defendant Nos.1 to 4 and was further pleased to dismiss the suit ex-parte against the defendant No.5 and pro-forma defendant No.6.

6. Being aggrieved by and dissatisfied with the judgment and decree dated 22.02.2001 passed by the learned Subordinate Judge (now Joint District Judge), 3rd Court, Dhaka in Money Suit No. 36 of 1993 the appellants filed First Appeal No.437 of 2001 in the High Court Division. The said appeal was heard by the High Court Division. Upon consideration of the materials on record the High Court Division dismissed the appeal with costs and upheld the judgment and decree passed by the learned Subordinate Judge, 3rd Court, Dhaka in Money Suit No.36 of 1993.

7. As against said judgment and order the petitioners have filed this petition for leave to appeal.

8. Heard Mr. Tafilur Rahman, the learned Counsel appearing for the petitioners and Mr. Md. Aminul Hoque, the learned Counsel appearing for the respondent No.1 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

9. It appears that the High Court Division rightly upheld the judgment and decree of the courts below for Tk.33, 98,244.05. It further appears that Shadharan Bima Corporation admitted the loss suffered during the incident and tried to shift its liability on the defendant No.5.

10. In such view of the matter we find no illegality in the judgment of the High Court Division and accordingly the leave petition is dismissed with modification that the decree will be executed against defendant No. 1 only.

Ed.

Sadharan Bima Corporation Vs. Messrs Ahad Jute Mills Ltd. and others, 2016(1) LNJ 271

Case No: First Appeal No. 188 of 2005

Judge: J. N. Deb Choudhury,

Court: High Court Division,,

Advocate: Mr. Selim Reza Chowdhury,Mr. Abdul Quaiyum,Mr. Md. Mainul Islam,Mr. A. K. M. Rezaul Karim,,

Citation: 2016(1) LNJ 271

Case Year: 2016

Appellant: Sadharan Bima Corporation

Respondent: Messrs Ahad Jute Mills Ltd.

Subject: Limitation, Words and Phrases,

Delivery Date: 2016-03-29

HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)

Soumendra Sarker, J
Quazi Reza-Ul Hoque, J
J. N. Bed Choudhury, J.

Judgment on
29.03.2016

Sadharan Bima Corporation, Sadharan Bima Bhaban, 33, Dilkusha Commercial Area, Dhaka and another.

. . . Appellants.

-Versus-

Messrs Ahad Jute Mills Ltd. and others.

. . . Respondents.

Words and Phrases
Cause of action
Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint, shall be rejected summarily. . . . (15)

Words and Phrases
Cause of action
The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. . . . (16)

Limitation Act (IX of 1908)
Article 86(a)(b)
Considered the first part of clause (b) of Article 86 of the Limitation Act, which under the heading “Description of Suit” and described the policy of insurance, when the sum insured is payable after proof of the loss has been given to or received by the insurers. Here words “Payable” and “has been given to” are very significant, which means that the sum insured is payable when the proof of loss has been informed to the insurers. In other words it means that the amount of insurance is payable when the loss occurred has been communicated to the insurer with proof or the insurer got the information of the occurrence. All these are thus related to intimation to the insurer about the occurrence, and after such communication, the sum insured became payable. The word “loss” has been mentioned in the first and third part of Article 86(b) of the Limitation Act and the word “loss” referred to as an information of the loss to the insurer resulting from an occurrence and thus making the policy of insurance payable. The word “payable” as mentioned in the first part of the Article, relates to cause of action of the suit i.e. the plaintiff after intimation of proof of loss to the insurer the sum insured has become payable and the plaintiff thus entitle to get the same. The starting point of limitation also made clear if we consider Article 86(a) of the Limitation Act. The first part of that Article under the heading “Description of suit” provides that “On a policy of insurance when the sum insured is payable after proof of the death has been given to or received by the insurers” and the third part of that Article provide that “The date of the death of the deceased”. It thus made it clear that the starting point for the purpose of filing such suit begins from the date of occurrence. . . . (20)

Limitation Act (IX of 1908)
Article 86(b)
From a plain reading of the third part of Article 86(b) of the Limitation Act, which is under the heading “Time from which period begins to run” provides that it shall run from the date of the occurrence causing the loss accordingly there is no doubt that the suit have to be filed within three years from the date of occurrence causing the loss. In the instant case the date of occurrence that is the fire broke out in the mill on 25.03.1987, and as such, the suit as filed on 22.08.1990 is hopelessly barred by limitation. The view taken by a Division Bench of the High Court Division in the case of Sadharan Bima Corporation and others vs. Golden Twisting Factory & others, 66 DLR 224 and the reasons stated therein are not acceptable in view of the clear provision of Article 86(b) of the Limitation Act. In the present case the third part of Article 86(b) of the Limitation Act is very clear and there is hardly any scope to interpret the same in any other way. . . . (21)

Limitation Act (IX of 1908)
Article 86(b)
The language of Article 86(b) of the Limitation Act is very much clear on this point so there cannot be any cause for holding that the limitation shall run from the date of cause of action of the suit i.e. when the claim has been refused, rather in view of this Article, the limitation for filing of the suit shall run from the date of occurrence causing the loss, i.e. from 25.03.1987. ...(22)

Shadharan Bima Corporation and others Vs. Golden Twisting Factory & others, 66 DLR 224; Surat Sarder and others Vs. Afzal Hossain and others, 49 DLR (AD) 99 and Tar Muhammad & Co. Vs. Federation of Pakistan and others, 9 DLR 197 ref.

Mr. Abdul Quaiyum, with
Mr. Selim Reza Chowdhury, Advocates
. . . For the Petitioners
Mr. Md. Mainul Islam, Advocate
…For Opposite Party Nos.1-7, 12, 14, 16-19, 23-24
Mr. A. K. M. Rezaul Karim, Advocate
...... For Opposite Party No. 22

First Appeal No. 188 of 2005

JUDGMENT

J. N. Deb Choudhury, J:

1. This First Appeal has been filed against judgment and decree dated 19.10.2003 passed by the learned Joint District Judge, Arbitration Court, Dhaka in Money Suit No. 55 of 1990.

2. This First Appeal was taken up for hearing by a Division Bench of the High Court Division, while that Bench passed the following order:-

“During hearing of the matter the learned Advocate for the respondent No. 1 submitted by referring to the observations made in Shadharan Bima Corporation and others vs. Golden Twisting Factory & others, 66 DLR 224, “that the law of limitation runs from the cause of action of a suit and that should be in all cases for 3(three) years not from the date of occurrence”, whereas Article 86(b) specified the provision as- “On a policy of insurance when the sum insured is payable after proof of the loss has been given to or received by the insurers”- “the period of limitation is 3(three) years” and time from which periods bearings to run is- “The date of the occurrence causing the loss”, which to us seems to contradicts the aforesaid judgment, so for adjudication of this present dispute the Honorable Chief Justice may kindly be request to permit to constitute a Full Bench for hearing of the matter, as per Article 1 of Chapter-VII (Reference to Full Bench) as per Supreme Court of Bangladesh (High Court Division) Rules, 1973.

Let the matter be placed before the Honorable Chief Justice for Constitution of a Full Bench for a day.”

In view of the above order, the matter has been placed before the Hon’ble Chief Justice who has been pleased to constitute the present Full Bench for hearing the instant First Appeal.

3. The respondent as plaintiff on 22.08.1990 filed Money Suit No. 55 of 1990 in the Court of Joint District Judge, Arbitration Court Dhaka, for realization of Tk. 42,99,352.00 against loss covered by the insurance policy dated 24.04.1987.

4. The plaintiff’s case in short is that it obtained an insurance policy firstly on 24.10.1983 and thereafter on 24.04.1987 covering the period from 12.01.1987 to 12.01.1988. Further case of the plaintiff is that a fire broke out in the Jute Mill on 25.03.1987 and the same has duly been informed to the defendant-insurer. The insurer appellant on 31.03.1987 appointed surveyer who filed a report assessing the loss as Tk. 29,53,822.25. The plaintiff on different occasion requested the defendant for payment of the amount of loss; but, the defendant lastly on 07.04.1990, refused to pay the amount and accordingly filed the suit.

5. The defendant Nos. 1 and 2 contested the suit by filing written statement and contended inter-alia, that the suit as filed is barred by limitation and also stated that the plaintiff violated the term Nos. 13 and 19 of the policy and thereby not entitled to get any amount from the defendant insurer and accordingly prayed for dismissal of the suit.

6. The trial Court framed as many as four issues including an issue as to whether the suit as filed is barred by limitation or not.

7. By the impugned judgment and decree the trial Court decreed the suit in part and directed the defendant to pay Tk. 29,53,822.00 with interest. Being aggrieved the defendant Nos. 1 and 2 as appellants filed the instant First Appeal.

8. Mr. Tufailur Rahman, with Mrs. Sufia Ahmed, the learned Advocates appearing for the defendant-appellants submit that he will press only one ground concerning limitation in filing of the suit. Assailing that ground he referred to Article 86(b) of the Limitation Act, 1908 (herein after referred to as the Limitation Act) and submits that the date of occurrence as has been stated even in the plaint was 25.03.1987 and the suit has been filed on 22.08.1990 and in view of Article 86(b) of Limitation Act, the suit is barred by limitation and the trial Court without considering the said article most illegally held that the suit is not barred by limitation and accordingly decreed the suit in part, and as such, prays for setting aside the impugned judgment and decree on allowing the appeal.

9. On the other hand Mr. Hassan Shaheed Quamruzzaman, the learned Advocate appearing for the plaintiff-respondent submits that in view of the decision reported in 66 DLR 224 a Division Bench of this Court held that the law of limitation runs from the cause of action of a suit and that should be in all cases for 03(three) years not from the date of occurrence. He further submits that in view of the first part of clause-(b) of Article 86 of the Limitation Act, it appears that the proof of loss has to be determined first and accordingly on relying on this decision, submits that the trial Court committed no illegality in holding that the suit is not barred by limitation.

10. We have heard the learned Advocates of both the sides, perused the plaint, written statement, depositions, exhibits and the memorandum of appeal.

11. The only question as raised in the instant first appeal is, as to whether, the suit as filed, is barred by limitation or not. For considering the same we have gone through the Article 86(b) of the Limitation Act, which reads as follows:

Description of suit	period of limitation	Time from which period begins to run.
86(b). On a policy of insurance when the sum insured is payable after proof of the loss has been given to or received by the insurers.	Three years	(b) The date of the occurrence causing the loss.

12. The decision referred to by the learned Advocate for the respondent in the case of Sadharan Bima Corporation and others vs. Golden Twisting Factory & others, 66 DLR 224, their Lordships held that;

“In appreciating such submission made by the learned Advocate we find that the entire gamut can be unfolded if the law as quoted above, is read together with first part of clause (b) of Article 86 of the Limitation Act which shows that the question of proof of the quantum of loss is very much pertinent and in determining the quantum of loss the question of assessment and evaluation and verification about the claim ought to have been made as it has been done in the instant case by two surveyors as also by the police officer during investigation including the Fire Service men and upon accumulating all those report the quantum of loss can be assessed which necessarily take sufficient time for the purpose, therefore, before assessment of a claim for specific amount cannot be made by the plaintiff and that too has to be either accepted or refused by the insurer himself, in the event of acceptance of the claim no question of filing of a suit arises rather it is only in the event of refusal of claim, institution of suit necessitates.

In the instant case we find that the cause of action of the suit necessarily arose on the date of refusal of the claim of the plaintiff by defendant Nos. 1-3 on 09.03.2000 and the suit was instituted on 07.08.2000 and that before refusal of the claim of the plaintiff by the defendant a cause of action does not arise and a suit cannot be instituted, therefore, in our opinion, the law of limitation as quoted above, runs from the cause of action of a suit and that should be in all cases for 03(three) years not from the date of occurrence as submitted by the learned Advocate for the appellants, therefore, we find that the instant suit has been filed well within the prescribed period of limitation as such in no way hit by clause (b) of Article 86 the limitation Act. Since all the questions raised by the learned Advocate for the appellants have already been answered therefore, in our opinion, the appeal itself is without substance.”

13. While dealing with Article 86(b) of the Limitation Act, their Lordships mainly considered the first part of clause (b) of Article 86 of the Limitation Act in holding the starting point of limitation, as to be after proof of the quantum of loss.

14. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitutes the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint, shall be rejected summarily.

15. The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.

16. It has been held by the Appellate Division in the case of Surat Sarder and others vs. Afzal Hossain and others, 49 DLR (AD) 99 that;

“The term “cause of action” has not been defined in the Code of Civil Procedure. Rule 1(e) of Order VII of the Code only provides that besides other particulars, mentioned in different clauses of Rule 1, the plaint shall contain the “facts constituting the cause of action and when it arose”. The cause of action for the suit ordinarily thus, means the cause which leads the plaintiffs to bring a legal action. The incidence of cause of action must be antecedent to the bringing of the suit at a time when the right to sue arose for the first time. It consists of the entire set of facts which gives rise to a legal action and is to be proved to entitle the plaintiff to succeed in the suit. It has little relation either to the defence to be taken by the defendant or the nature of relief to be prayed for by the plaintiff in the suit.”

17. And also in the case of Tar Muhammad & Co. vs. Federation of Pakistan and others, 9 DLR 197, a Division bench of the then Dacca High Court, held that;

Now the cause of action, as it means, denotes a bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in his suit. It has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely in the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

18. Thus it appears that cause of action does not mean only the date of refusal; but, every fact which would be necessary for the plaintiff to prove his case.

21. We have considered the first part of clause (b) of Article 86 of the Limitation Act, which under the heading “Description of Suit” and described the policy of insurance, when the sum insured is payable after proof of the loss has been given to or received by the insurers. Here words “Payable” and “has been given to” are very significant, which means that the sum insured is payable when the proof of loss has been informed to the insurers. In other words it means that the amount of insurance is payable when the loss occurred has been communicated to the insurer with proof or the insurer got the information of the occurrence. All these are thus related to intimation to the insurer about the occurrence, and after such communication, the sum insured became payable. The word “loss” has been mentioned in the first and third part of Article 86(b) of the Limitation Act and the word “loss” referred to as an information of the loss to the insurer resulting from an occurrence and thus making the policy of insurance payable. The word “payable” as mentioned in the first part of the Article, relates to cause of action of the suit i.e. the plaintiff after intimation of proof of loss to the insurer the sum insured has become payable and the plaintiff thus entitle to get the same. The starting point of limitation also made clear if we consider Article 86(a) of the Limitation Act. The first part of that Article under the heading “Description of suit” provides that “On a policy of insurance when the sum insured is payable after proof of the death has been given to or received by the insurers” and the third part of the that Article provide that “The date of the death of the deceased”. It thus made it clear that the starting point for the purpose of filing such suit begins from the date of occurrence. From a plain reading of the third part of Article 86(b) of the Limitation Act, which is under the heading “Time from which period begins to run” provides that it shall run from the date of the occurrence causing the loss accordingly there is no doubt that the suit have to filed within three years from the date of occurrence causing the loss. In the instant case the date of occurrence that is the fire broke out in the mill on 25.03.1987, and as such, the suit as filed on 22.08.1990 is hopeless barred by limitation. The view taken by a Division Bench of the High Court Division in the case of Sadharan Bima Corporation and others vs. Golden Twisting Factory & others, 66 DLR 224 and the reasons stated therein are not acceptable in view of the clear provision of Article 86(b) of the Limitation Act. In the present case the third part of Article 86(b) of the Limitation Act is very clear and there is hardly any scope to interpret the same in any other way.

22. As we have already held that the language of Article 86(b) of the Limitation Act is very much clear on this point so there cannot be any cause for holding that the limitation shall run from the date of cause of action of the suit i.e. when the claim has been refused, rather in view of this Article, the limitation for filing of the suit shall run from the date of occurrence causing the loss, i.e. from 25.03.1987.

23. In view of the above, we cannot agree with the decision as mentioned above reported in 66 DLR 224.

24. Accordingly, we find that the suit as filed is hopelessly barred by limitation, and as such, the suit is liable to be dismissed on this ground.

25. Accordingly, the appeal is allowed without any order as to cost.

26. The judgment and decree dated 19.10.2003 passed by the learned Joint District Judge, Arbitration Court, Dhaka in Money Suit No. 55 of 1990 is hereby set aside and the suit stand dismissed.

27. Send down the Lower Court’s Record with a copy of this judgment to the concerned Court immediately.

Ed.

Sadharan Bima Corporation Vs. Sanjib Kumar Das & another, 47 DLR (AD) (1995) 97

Case No: Civil Appeal No. 4 of 1994

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Sharifuddin Chaklader,,

Citation: 47 DLR (AD) (1995) 97

Case Year: 1995

Appellant: Sadharan Bima Corporation

Respondent: Sanjib Kumar Das

Subject: Words and Phrases,

Delivery Date: 1995-2-23

Supreme Court
Appellate Division
(Civil)

Present:
MH Rahman, CJ.
ATM Afzal, J.
Mustafa Kamal, J.
Latifur Rahman, J.

Sadharan Bima Corporation
....................Appellant
Vs.
Sanjib Kumar Das & another
...................Respondent

Judgment
February 23rd, 1995

Pending Action
These words have been understood to mean pending suit. The Court misunderstood that the meaning of ‘action’ is not confined to a suit or other legal proceeding in court or that the word will mean and include any action to be taken by the insurer after the claim is lodged by the insured.

Cases Referred to-
Roul Colinvaux in The Law of Insurance, 3rd Edition, 1970 at page 25; Black's Law Dictionary, 4th Edition, page 49; Halsbury's Laws of England, 3rd Edition, Vol. 1, at page 2; AN Ghose vs. Reliance Insurance Company, AIR 1934 (Rangoon) 15; Baroda Spinning and Weaving Co. Ltd. vs. Satynarayan Marine and Fire Insurance Co. Ltd, AIR 1914 (Bom) 225; Sree Hari Sankar Nandi Majumdar vs. Sree Promode Chandra Roy Choudhury, 4 PLR (Dacca) 595; Honuman Box vs. Eagle Star and British Dominions Insurance Company Ltd, AIR 1924 (Cal) 186; G, Rainey vs. Burma Fire and Marine Insurance Co. Ltd, AIR 1926 (Rangoon) 3; Rubi General Insurance Company vs. Bharat Bank, AIR 1950 (EP) 352; Pearl Insurance Company vs. Atma Ram, AIR 1960 (Punjab) 236; Vulcan Insurance Co. Ltd. vs. Maharaj Singh, AIR 1976 (SC) 287; Sargodha Central Co‑operative Bank Ltd. vs. New Hampshire Insurance Co, PLD 1982 (Karachi) 627; Ali Pipe Industries vs. The Universal Insurance Co, Ltd, PLD 1989 (Lah) 390; Pir Bakhsh vs. Chairman, Allotment Committee PLD 1987 (SC) 145.

Lawyers Involved:
AR Yusuf, Senior Advocate, Manzur‑ur‑Rahim, Advocate with him instructed by Sharifuddin Chaklader, Advocate‑on‑Record ‑ For the Appellant.
M Nurullah, Senior Advocate instructed by Shamsul Haque Siddique, Advocate – on – Record-For the Respondent No. 1.
Md. Nawab Ali, Advocate‑on‑Record ‑For the Respondent No. 2.

Civil Appeal No. 4 of 1994
(From the Judgment and Order dated 24.8.93 passed by the High Court Division in Appeal from Original Decree No.267 of 1992)

JUDGMENT

Mustafa Kamal J:

1. This appeal by defendant No.1 Sadharan Bima Corporation by leave is from the judgment and order dated 24.8.93 of the High Court Division passed in Appeal from Original Decree No. 267 of 1992, affirming the judgment and decree dated 3.11.92 passed by the learned Subordinate Judge, Chittagong in Money Suit No. 2 of 1992, decreeing the suit.

2. Plaintiff‑respondent No.1 Sanjib Kumar Das is a manufacturer and seller of homeopathic medicines under the name and style of SB Memco Laboratory at his village Kulkurmal, Police Station Rangunia, District Chittagong. He obtained a loan from pro‑forma defendant No. 2 Janata Bank, Laldighi East, Chittagong on an equitable mortgage of the land and building on which the laboratory is situated. Upon the joint proposal of the plaintiff and the said bank the appellant issued a fire insurance policy dated 5.5.90 insuring the plaintiffs laboratory building, machineries, furniture’s and stocks‑in‑trade for Taka 31,00,000.00 in the plaintiffs said trade name. The policy was to expire on 3.5.91. The Janata Bank upon inspection of the plaintiff’s laboratory advised the plaintiff to enhance the insured amount and accordingly upon the plaintiffs request dated 17.7.90 the insured amount was enhanced to Taka 41, 00,000.00. The plaintiff paid the requisite premium while obtaining the insurance policy dated 5.5.90 and after payment of additional premium the insured amount was enhanced to Taka 41, 00,000.00 by an endorsement dated 25.7.90. In the night following 11.10.90 at about 2‑00 AM a fire took place in the plaintiff’s laboratory resulting in complete damage to the laboratory, furniture, medicines and machineries. The neighbouring people tried to extinguish the fire without success and tried to inform the Fire Brigade of Karnaphuli Paper Mills through Rangunia Police Station. On 12.10.90 a GD entry was lodged at Rangunia Police Station. An Officer of Karnaphuli Fire Brigade, a Narcotic Inspector and the Police visited the place of occurrence on 14.10.90 being a Friday, the plaintiff informed of the occurrence to the appellant by a letter dated 13.10.90 and requested the appellant to survey the damages and pay the compensation. On 14.10.90 the appellant sent some claim forms which the plaintiff duly filled in and deposited to the appellant on 25.10.90. Officers of the appellant held spot enquiry and took photographs, video tape and other alamats from the place of occurrence. Upon the direction of the appellant a joint survey was hold for ascertaining the cause of fire and the quantum of damage. The surveyors submitted a report on 10.12.90 stating that the fire took place owing to short circuit of electricity and that the damage was to the tune of Taka 37, 23,320.91 and recommended for payment of compensation to the plaintiff. Fire caused by electric short circuit was covered by the policy of insurance. The plaintiff requested the appellant to pay the aforesaid amount of compensation by a letter dated 28.3.91 and appellant too by a letter informed the plaintiff that his claim was under active consideration of the authority. The appellant remained silent for a long time which prompted the plaintiff to issue a lawyer's notice on 10. 11.91, but the appellant without replying to the same directly repudiated the claim of the plaintiff by a letter dated 16.11.91 Ext, 11. It was stated therein that Janata Bank without having any insurable inoperable interest in the insured properties became a signatory to the insurance proposal and the plaintiff secured the insurance policy by resorting to falsehood. Another insurance policy of a lesser amount for the same insured properties was taken out by the plaintiff from Green Delta Insurance Company Ltd, but the plaintiff did not disclose this fact to the appellant and therefore, there was a fraudulent suppression of material facts causing serious breach of utmost good faith. It is evident from the survey report, it was alleged, that the cause of fire was other than an accidental fire, Besides, for commission of several other acts of breach of terms, conditions and warranties of the policy the plaintiff disentitled himself to any claim whatsoever. The plaintiff stated in the plaint that the fire policy with Green Delta Insurance Company was in respect of the plaintiff’s factory situated at Super Market, Chittagong and the said fire policy expired long ago on 30.5.90. The plaintiff did not suppress any facts and the appellant was bound under the policy to pay compensation to the plaintiff for the aforesaid amount. Hence the suit for a decree for Taka 37,23,320.91, with interest and compensation, filed on 2.1.92.

3. Pro‑forma defendant No. 2, Janata Bank, by filing a written statement supported the case of the plaintiff, but the appellant, defendant No.1 denied all the averments of the plaintiff in its written statement and apart from reiterating the grounds on which the claim was repudiated by the letter dated 16.11.91 Ext. 11 took the following ground in paragraph 8 of the written statement:

"That as the suit was not filed within the time as required under the policy it is liable to be dismissed."

4. The plaintiff examined witnesses including himself and the appellant also examined 4 witnesses. Both sides brought on record many documents which were marked as exhibits,

5. The trial Court found that the fact of taking out of the fire policy and the fact of fire and resulting loss to the plaintiff are not disputed matters. The survey report was not challenged by the appellant. Consequently the trial Court held that the plaintiff sustained a damage of Taka 37, 23,320.91.

6. At the trial the argument was in fact centered round condition No 19 of the Policy which reads as follows:

"19. In no case whatever shall the Corporation be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration."

7. The appellant contended that the loss took place on 12.10.90 and the suit was filed on 2.1.92. Therefore, the appellant was not liable for any loss or damage after the expiry of 12 months from 12.10.90. The trial Court held that as the appellant did not give any decision on the claim of the plaintiff before 16.11.91 (Ext. 11), the claim was the subject of pending action before the insurer and therefore condition No. 19 is not attracted. The trial Court negatived all other defences of the appellant and decreed the suit for Taka. 37,23,320.91 with interest at the rate of 18% and compensation at the rate of 5% from 11.3.91 as also the costs of the suit.

8. In the First Appeal before the High Court Division the other defences of the appellant were similarly negatived and the submission of the appellant was mainly concentrated on condition No. 19 of the Fire Policy. The High Court Division held that the meaning of the word 'action' is not confined to a suit or other civil proceeding in Court for recovery of damage, because the word 'action has been used in several other conditions of the Policy disjunctively from the word 'suit'. It further held that the insurance law is a beneficial legislation and the word 'action' will also mean and include any action to be taken by the insurer after the claim is lodged by the insured. The claim was repudiated by the appellant after the expiration of twelve months from the date of loss on 16.11.91 on some grounds other than that stipulated in condition No.19 of the Policy. As such under condition No. 13 of the Policy the plaintiff had the right to institute the suit within 3 months of the repudiation of the policy which he did. The claim is not time‑barred in any manner, it held. The trial Court's decree was upheld.

9. The relevant provision of condition No 13 of the fire Policy is as follows:

"3. If the claim be made and rejected and action or suit be not commenced within three months after such rejection ................all benefits under this policy shall be forfeited."

10. Leave was granted to consider the appellant's submission that the Courts below misinterpreted and misapplied condition No. 19 of the Fire Insurance Policy by giving a dictionary meaning to the words ‘pending action’ contained in the said clause, contrary to the legal precedents and insurance practice followed in this subcontinent.

11. Mr. AR Yusuf, learned Counsel for the appellant, submits that the words 'pending action' occurring in condition No. 19 of the policy have received authoritative interpretation from various High Courts of this sub‑continent since the last 80 years, These words have been given a technical meaning although out, meaning to say, a suit to be filed in a Court of Law, and the entire insurance community is following this interpretation since the last 80 years. The High Court Division, he submits, by making a radical departure from the accepted interpretation of these words has upset the law of insurance on untenable grounds.

12. Mr. M Nurullah, learned Advocate for the insured‑respondent No, l. on the other hand, has defended the judgment of the High Court Division by quoting profusely from MacGillivray on Insurance Law, 4th Edition, Insurance Law by BN Singh, 3rd Edition, 1993 and the law relating to Fire Insurance by Welford and Otter Barry, 4th Edition, 1948 and has submitted, correctly we think, that policies of insurance are to be construed like other written instruments and that there are no peculiar rules of construction applicable to the clauses and conditions in. a policy which are not equally applicable to the terms of other contracts. The conditions are to be construed fairly between the parties and the Court will endeavour to ascertain their meaning by adopting the ordinary rules of construction taking recourse to the ordinary rules of grammar.

13. In section 713 of MacGillipray on Insurance Law, however, the learned author says as follows:

"713. Technical meaning, words must sometimes be construed otherwise than in their popular sense.‑ (1) if the context compels a different construction, or (2) if they are words of common form which from long usage and frequent decisions of the Court have received a fixed and more or less conventional meaning, or (3) if by the universal custom of some trade or business an artificial meaning peculiar to that trade or business has been attached to the words in question."

14. The same is the view taken by Rout Colinvaux in the Law of Insurance, 3rd Edition, 1970 at page 25 where it is stated:

"Once a phrase has been given a definite meaning by the Courts for a 4ong period, not even a court of higher jurisdiction will overrule earlier decisions on the matter".

15. The question, therefore, is, have the words "pending action" in condition No. 19 of the Fire Policy acquired a technical meaning from long usage and frequent decisions of the Court and, if so, is the High Court Division well‑grounded in law in overruling them?

16. It is impracticable to draft individual policies for each separate insurance and it is therefore necessary to use policy forms more or less standard in character and to adopt them to the requirements of particular insurance by the attachment of clauses most of which are also standardised. In fire insurance, for example, the form that has been used by the appellant (Ext.3) has been in use for well over a century. Its clauses and conditions are internationally in use and its imports and implications are well known throughout the insurance world.

17. In five conditions of the Standard Fire Policy the word 'action' is used. Condition No. 4 reads, "in any action, suit or other proceedings, the burden of proving." In condition No. 6 again, the words used are: "in any action, suit or other proceedings." In condition No 13 the words are: "If the claim be made and rejected and an action or suit be not commenced." In condition No. 18 the words are: "right of action or suit." In condition No. 19 the words are: "subject to pending action or arbitration."

18. It is obvious that in four of the five conditions the words 'action' and 'suit' have been used disjunctively, but the learned Judges of the High Court Division have failed to appreciate why these words were used separately. As we said before, the conditions of standard fire policy were drafted a century ago by British draftsmen and, in those days, there was distinction between an 'action at law' and a ‘suit in equity' in English law. Any question arising out of a policy of fire insurance in connection with the claim of the insured was in those days to be determined by the Court in an 'action' brought upon the policy at the suit of the insured. The action is brought in the Queen's Bench Division of the High Court of Justice, or in the Country Court, according to the amount of the insured's claim.

19. In Black's Law Dictionary, 4th Edition, page 49 the distinction between 'action' and 'suit is stated as hereunder:

"Strictly applied, action does not usually refer to chancery practice ................But terms “action" and "suit" are now nearly, if not entirely, synonymous .................or, if there be a distinction, it is that the terms "action" is generally confined to proceedings in a court of law, while "suit" is equally applied to prosecutions at law or in equity ...................

Formerly, however, an action was considered as terminating with the giving of judgment, the execution forming no part of it. A suit included the execution ........So, an action is termed by Lord Coke, "the right of a suit".

20. So in England, both 'action' and 'suit' were legal proceedings in a court of law culminating in a judgment, but whereas 'action' did not include execution proceedings, 'suit' included execution proceedings, Also, 'action' could only be instituted in a court of law and not in a court of equity, but 'suit' could be instituted both in a court of law and in a court of equity. Nowadays the distinction is blurred and in Halsbury's Laws of England, 3rd Edition, Vol. 1, at page 2, 'action' is defined thus:

"Action', according to the legal meaning of the terms, is a proceeding by which one party seeks in a Court of Justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be 'the legal demand of a right' or 'the mode of pursuing a right of judgment'." "In its wider meaning the term includes both civil and criminal proceedings...........It is however generally used in more restricted or popular sense as denoting a civil action commenced by writ or plaint."

21. No case from the English jurisdiction could be cited by either side to show that the word 'action' includes any ministerial or official action to be taken by the insurer after the claim is lodged by the insured. Presumably no such case can be cited, as the distinction between an 'action' and a 'suit was well known to the English litigants and no effort was therefore made to give the word 'action' a dictionary meaning. Both the words meant legal proceedings, difference being only in form and execution.

22. The word 'action' is unknown in the sub‑continental jurisprudence. It is not defined in our Code of Civil or Criminal Procedure. We hear of 'departmental action', 'police action', 'prompt action' and the like and we do not use this word in connection with legal proceedings. It is because of this lack of association of the word 'action' with legal proceedings that attempts were made to extricate those words from the purview of legal proceedings in a court of law and to consign the words to the arena of exchange of correspondence between the insurer and the insured.

23. The matter was squarely decided in the case of A N Ghose vs. Reliance Insurance Company, AIR 1934 (Rangoon) 15. The fire took place on the 5th March, 1931 and the plaintiff filed the suit on the 8th November, 1932. Condition No. 19 was invoked by the insurer‑defendant and the plaintiffs Advocate argued that the words 'pending action' do not refer to a suit but to any steps which the company might take in the investigation of the claim. Leach, J, rejected the contention thus:

"In my opinion the words ‘pending action' do contemplate a pending suit........It seems to me that the word 'action' must refer to legal proceedings. Mr, Bannerji argues that it embraces the steps taken by the defendant companies assessor. I cannot accept this as being correct .............”

Thus in Aiyer's Law Terms and Phrases, 7th Edition, the word 'action' is defined as hereunder:

"Action is a generic term and means a litigation in a civil Court for the recovery of individual right as the redress of individual wrong inclusive, in its proper legal sense, of suits by the Crown" 8 AC 353 (P27). Further, the author says,

"The word "action" was not a word which was used in Indian law and therefore that word must be given the meaning which it had in English law.........(Bharat Bank Lid, vs. Ruby General Insurance Co. Lid, AIR 1951 (Punjab) (97).

24. Ever since the decision was given in AN Ghose's case, AIR 1934 (Rangoon) 15, no one seems to have challenged that interpretation of the words 'pending action' and the only controversy which persistently clogged the higher Courts of this sub‑continent was as to whether condition No. 19 or for that matter condition No. 13 of the Fire Policy prescribed a shorter period of limitation than the one provided under Article 86 of the First Schedule to the Limitation Act and was therefore void under section 23 or 28 or both of the Contract Act or not. A series of decisions laid down the principle, starting from the case of Baroda Spinning and Weaving Co. Lid. Vs. Satynarayan Marine and Fire Insurance Co. Ltd, AIR 1914 (Bom) 225, that condition No 13 or 19 or similar such condition does not prevent the insured from suing within the period of limitation prescribed in Article 86. What condition No .13 or 19 states is that if no suit is brought within three months of repudiation of the claim or within twelve months of the happening of the loss, the insured will lose or forfeit the claim and no suit therefore will be maintainable, As Ibrahim J, succinctly put it in Sree Hari Sankar Nandi Majumdar vs. Sree Promode Chandra Roy Choudhury, 4 PLR (Dacca) 595, "The dominating idea in this agreement is not that the remedy will be barred but that the right itself will be forfeited". This principle has been followed in Girdharilal Honuman Box vs. Eagle Star and British Dominions Insurance Company Lid, AIR 1924 (Cal) 186; G, Rainey vs. Burma Fire and Marine Insurance Co. Lid, AIR 1926 (Rangoon) 3; AN Ghose vs. Reliance Insurance Company, AIR 1934 (Rangoon) 15; Rubi General Insurance Company vs. Bharat Bank, AIR 1950 (EP) 352; Pearl Insurance Company vs. Atma Rain, AIR 1960 (Punjab) 236; Vulcan Insurance Co. Lid. vs. Maharaj.Singh, AIR 1976 (SC) 287; Sargodha Central Co‑operative Bank Lid. vs. New Hampshire Insurance Co. PLD 1982(Karachi) 627 and Ali Pipe Industries vs. The Universal Insurance Co. Lid, PLD 1989 (Lah) 390. The underlying assumption in all these cases is that 'pending action' refers to a suit and not to a consideration of the claim by the insurer. This assumption remains undisturbed for well over 30 years.

25. It is too late in the day therefore to attempt to make a radical departure from the established technical meaning of the words 'pending action' which are stare decisis. As the meaning of the words 'pending action' is well established by legal precedents we would like to reproduce the observations of Muhammad Haleem CJ of Pakistan in the case of Pir Bakhsh vs. Chairman, Allotment Committee PLD 1987 (SC) 145 as under:
"A solemn decision upon a point of law arising in any given case becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the Judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness, and the community has a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public if precedents were not duly regarded, and implicitly followed."

26. The same view has been expressed in the case of Ali Pipe Industries vs. Universal Insurance Co, Lid, PLD 1989 (Lah) 390 by Abaid Ullah Khan J-

“…….whether the interpretation of the law declaring the legality of the conditions of contract of insurance under review, which criginating from this decision AIR 1914 (Bom) 2251 has held the field for almost three quarters of a century, should be disturbed, Successive affirmations by judicial pronouncements have made it assimilate in the mainstream of the law of insurance and have reinforced the business community's belief in its correctness. The people involved in the fire and lighting insurance business, insurers as well as insured, are acceptably of above average means, knowledge and intelligence and generally have ready access to legal advice. They can very well be presumed to be aware of the implications and effects of various clauses of insurance contract laying restrictive time limits for making claims and initiating actions. They have been entering into contracts, settlements and fiscal arrangements on the basis of the law propounded by the Courts. No serious inconvenience or injustice would flow from allowing the law to stand rather its overruling would be productive of inconvenience. In order to ensure certainty and consistency in the law and to preserve the sanctity of precedent as a good source of law it would be eminently just and proper to follow the principle of stare decisis .............I would be reluctant to cause the least disturbance to the prevailing state of law."

27. We would like to say in the same vein that the words 'pending action' have been understood in this sub‑continent for well over 80 years as pending suit and we find no jurisprudential backing, no unfurling of a novel proposition of law and no impelling consideration of justice and fair play in the judgment of the High Court Division to disturb that understanding. The High Court Division clearly misinterpreted and misunderstood the words 'pending' action and we have no hesitation in disapproving of the same.

28. Condition No. 19 in the Fire Policy is a condition relating to limitation of action and Macgillivray in his Insurance Law, 4th Edition, says at section 1794:

"Conditions relating to limitation of action.........If the insurer causes delay in the settlement of the loss, or induces the insured to refrain from commencing proceedings by promise of payment, by definite hope of settlement, the condition may be held to be waived, or the period may be held to have been enlarged by suspension of the condition during the negotiations for settlement."

29. That a condition in a policy may be waived by the insurer is also acknowledged by Brij Nandan Singh in his book "Insurance Law" at P 257:

"The effect of the breach of condition is to make the contract of insurance voidable at the option of the insurers, and, therefore, they may elect to waive the breach, or by their conduct after notice of the breach estop themselves from setting it up. The word generally used in the policies is 'void' but the mere use of such word very rarely excludes the possibility of confirmation. Further, a condition is inserted in the policy by the insurers themselves for their own protection, it is open to them to waive the strict performance of the condition.

It is not necessary that the waiver should be express. The insurers may by their own conduct lead the insurer into belief that the breach is condoned and may estop themselves from relying upon the breach."

30. The same view is expressed by Welford and Otter Barry in The Law Relating to Fire Insurance, 4th Edition, at page 124:

"It is not necessary that a waiver of a breach of condition should be in writing, unless there is an express condition to that effect. A parol waiver by the insurers, or by their agents, acting within the scope of his authority, is sufficient. There may also be a waiver by conduct: if the insurers do an act which can be justified only upon the footing that the policy is in force, they are precluded from contending that the policy is avoided by the breach of condition. They are equally precluded from relying upon the breach where their conduct misleads the assured and induces him to alter his position in the belief that the policy is valid. A failure on the part of the insurers to take objection which does not mislead him is not sufficient, since an intention to waive cannot be inferred from mere silence, or even from equivocal acts on the part of the insurers which are unknown to the assured. If, however, objection is taken to the assured's claim on other grounds there may be a waiver as to the ground of objection which is not taken."

31. The same view is expressed by ER Hardy Ivamy in his book "General Principles of Insurance Law," 2nd Edition at page 253:

"Similarly, the failure to raise a particular ground of objection is not in itself a waiver, though the taking of objection on other grounds may be a waiver on the ground of objection which is not specifically raised."

Condition No. 19 of the Policy is therefore not a self‑operative condition. To avoid its liability the insurer has to invoke it. The fire in this case took place on 12.10.90. More than twelve months after the happening of the loss the appellant repudiated the claim of the plaintiff by a letter dated 16.11.91 alleging breach of a number of conditions in the policy, without invoking condition No.19. A simple letter stating that "as twelve months have expired from the happening of the alleged fire loss damage and as the claim is not the‑ subject of pending action or arbitration within this period of twelve months, the corporation is not liable for any loss or damage under the policy, in accordance with the stipulations contained in condition No.19 of the Policy" would have served as a rude awakening to the plaintiff, giving him a notice once and for all that although his remedy is open, his right has been extinguished. He was led to the belief that his policy was valid until 15.11.91 and that his claim has been repudiated on 16.11.91 on some other grounds which he can successfully challenged in a court of law. He rightly relied upon condition No. 13 of the policy and filed the suit within three months of repudiation of the claim on 2.1.92, without any averment on any waiver of condition No.19, because that condition, being an inviolable condition, was not invoked at all by the appellant in its letter of repudiation dated 16.11.91. The plaintiff framed his suit challenging the grounds on which the repudiation was based. By its own conduct the appellant led the plaintiff into belief that condition No. 19 was waived. The plaintiff went through the expenses and vagaries of litigation, thereby substantially altering his position since the receipt of Ext.11. The appellant will now be estopped from taking refuge in condition No. 19.

Hence although we are upholding the contention of the appellant with regard to the meaning of the words "pending action", disapproving of the interpretation given by the High Court Division, we dismiss the appeal for the reasons above without any order as to costs.

Ed.

Sadullah Pramanik & others Vs. Md. Khalilur Rahman & others

Case No: Civil Appeal No. 92 of 1983

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: B.N. Chowdhury,S. R. Pal ,,

Citation: 36 DLR (AD) (1984) 188

Case Year: 1984

Appellant: Sadullah Pramanik & others

Respondent: Md. Khalilur Rahman & others

Subject: Property Law,

Delivery Date: 1983-11-23

Sadullah Pramanik & others Vs. Md. Khalilur Rahman & others
36 DLR (AD) (1984) 188

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Sadullah Pramanik & ors........................................Appellants
Vs.
Md. Khalilur Rahman & ors......................................Respondent

Judgment
November 23, 1983.

The Bengal Tenancy Act, (Amendment) 1928
Section 3(7)

Cultivation of land of another person on condition of delivering a share of the produce to that person is not a tenant unless such person has been expressly admitted to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him…………..(5)

The plaintiff purchased the land by registered deed from his vendors, who were the tenants. Therefore, his right was rightly declared by the trial Court and the High Court Division took the correct view that the appellate Court below had drawn erroneous inference………..(6)

Cases Referred to-
Abu Nasser Sayedullah Vs. Abdul Malik alias Mala and another, 12 DLR 206; Munir Mondal and others Vs. Paramatha Nath Chowdhury and others, 14 DLR 801; A.I.R. 1940 P.C. 124; Krishna Chandra Paul Vs. Khoyar Sardar, 20 DLR 746.

Lawyers Involved:
B. N. Chowdhury, Advocate instructed by Kazi Ebadul Haque, Advocate-on-Record—For the appellants.
S.R. Pal, Senior Advocate, instructed by Kaiseruddin Ahmed, Advocate-on-Record—For the Respondent Nos. 1 & 2.

Civil Appeal No. 92 of 1983.
(From the judgment and decree dated 6.12.1982 passed by the High Court Division, Rangpur Bench in S.A. No. 1355 of 1968.)

Judgment

Badrul Haider Chowdhury J.-This appeal by special leave is directed against the judgment and order passed by the High Court Division in Second Appeal No. 1355 of 1968.

2. Defendants are the appellants Plaintiff respondent filed Title Suit No. 66 of 1966 in the Court of Munsif, 2nd Court, Serajganj for declaration of title and recovery of possession. His case was that the suit land described in the schedule ‘Ka’ and ‘Kha’ of the plaint appertaining to Khatian Nos. 123 and 125 respectively of mouza Bhangari originally belonged to landlords Girija Sannyal and Aswini Kumar Sannyal. Bassarat Akanda and Maidan Akanda used to cultivate the suit land in raiyati right as tenants paying half of the produce as rent. Maidan Akanda surrendered his land in favour of the landlords who in turn gave that land in borga to Bassarat Akanda. Bassarat Akanda died leaving two sons namely Mofiz Akanda and Mahim Akanda who by inheritance got the land of Khatian No. 123 of Schedule 'Ka' as raiyati tenant at a rental of half of the produce and also possessed the land of Khatian No. 125 of Schedule ‘Kha’ in borga like their father. Having difficulties in paying rent in crop Mafiz and Mahim prayed to the landlords for conversion of Khatian No. 123 into money rent and further prayed for leasing out the land of Khatian 125 to them by fixing a jama. Narayan Chandra Roy, Manager of the Estate leased out 3.91 acres of land of Khatian Nos. 123 and 125 to the plaintiff Mofiz and Mohim at a rental of Rs. 15/8/- annas on 15^th Chaitra, 1348 B.S. after receiving Nazarana and issued a Likhon in favour of Mahim and Mofiz who had been possessing the land as tenant on payment of rent to the Sanayal landlords. The present provisional rent Roll Khatian has been finally published in the name of Mahim and Mofiz who have sold two plots out of their jote to the plaintiffs by registered kabala dated 28.1.65. His further case was that the defendants cut and took away jute grown by the plaintiffs for which the criminal case was started but the case was dismissed and being encouraged by an order of acquittal the defendants dispossessed the plaintiffs from the suit land on 11.6.66.

3. The suit was resisted by the defendants who contended that Basarat Akanda and Maidan Akanda had no raiyati right in the suit land. Both of them were simple bargadars under the landlords namely Sannyals. Mohim and Mofiz never possessed the land in raiyati right. Therefore the plaintiff's purchase of the suit land from Mofiz and Mohim did not confer any title on the plaintiff. Defendants, it was contended, were in possession and took pattan of the suit land by Amalnama. The trial Court on consideration of the evidence decreed the suit. Appellate Court, however, reversed the decision and allowed the appeal and found that the defendants are in possession by making reservation as under:
"The PRR in my opinion has been correctly recorded in the names of Sannyals because they did not lease out to either party. It is their khas land. Neither plaintiff's vendor nor defendants was able to record their names in the PRR and they could not do so as they actually had no title and possession for the purpose of recording their names, defendants are found to be in possession, not known in what capacity".
In that view of the matter the appeal was allowed. In Second Appeal the High Court Division on analysis of the evidence found that the plaintiff had proved the tenancy right of Mofiz and Mohim and their settlement by Ext. 3. This Ext. was not considered by the Court of appeal below in correct perspective. Ext. 3 Likhon was issued in 1348 B.S. for the lease of the land of both the Khatians. Appellate Court below considered that there was no corroborative evidence and accordingly disbelieved this Likhon. The High Court Division rightly pointed that there was positive evidence of P.W. 3 to substantiate the genuineness of the Ext. 3. It is found to be genuine as it has been found by the trial court, the High Court Division inferred that the suit was filed within 12 years from 1363 B.S. and the same was not barred by limitation. Next the kabala Ext, 1 of the plaintiff had been admitted by both P. Ws. Mofiz and Mohim. It is clear that the lower appellate court below wrongly set aside the judgment of the Munsif inasmuch as plaintiff’s title has been amply proved by the oral evidence as well whereas the appellate Court below had found the possession in favour of the defendant by saying "not known, what capacity". When a dispute is brought before the Court for adjudication, it is necessary for the Court to come to conclusion this way or the other. The defendants have got no document of title. This was noticed by the appellate Court below as well. The defendants relied on an Amalnama Ext. C and C (1) and even the appellate Court below compared the signature of Aswin Sannayal on Ext. C series with dakhilas Ext. D series and found that Ext. C series were not genuine. Notwithstanding this finding that the defendant had got no document of title yet the judgment and decree of the trial court was set aside.
Mr. Pal appearing for the plaintiff respondents canvassed that the appellate Court below had reversed the decision of the trial court on misreading and disreading the positive evidence on record.

4. Mr. B.N. Chowdhury appearing for the defendant-appellant contended that the plaintiffs' vendors were mere borgadar and their tenancy could not be proved. The position of the defendants is worse. In the Khatian it is mentioned that the right of Sannyal was ga¨¯eZ¡ wPi¯’vqx (illegible) and as such a lease holder under them would be tenant. But strangely enough in the Amalnama of the defendants Ext. C series, it shows that Korfa pattan. The trial Court concluded that the contention of the plaintiff that these were created after the State Acquisition and Tenancy Act when the Sannayal became raiyat by operation of law and on a mistaken notion thought that no lease could be granted to them and therefore korfa pattan was mentioned. This position shows that Ext. C series were created for the purpose of the suit the inference drawn from such document is a question of law and there is no escape from the conclusion that the trial court was correct in drawing the conclusion as it did. Now the question of status of the plaintiff's vendor. In the case of Abu Nasser Sayedullah Vs. Abdul Malik alias Mala and another 12 DLR 206 a single Bench considered section 3(17) proviso and held that a borgadar could become a tenant before the introduction of the provisio to clause (17) of section 3 but cannot be so after its introduction unless the conditions in the exception are fulfilled. The decision was doubted in 14 DLR 801 in the case of Munir Mondal and others Vs. Paramatha Nath Chowdhury and others by a Division Bench and it was held that borgadar recorded in C.S. Khatian as tenant before introduction of the provision in 1928, can plead tenancy right after the introduction of the proviso. It was observed that the interpretation given in 12 DLR would create anomalous position namely once a tenant, he could not be considered as tenant for the subsequent period. Reliance was placed on high authority, A.I.R. 1940 P.C. 124 that such a construction so unreasonable and impractical ought not to have been preferred when another construction is open. Subsequently, in the case of Krishna Chandra Paul Vs. Khoyar Sardar, 20 DLR 746 another Single Bench took the view that a person who is holding land by giving a share of the crop must be doing so under the system known as Borga, Adhi or Bhag and, if the C.S. record show that before the amendment in 1928 the person was holding the land as a permanent raiyati and the rent was fixed at half the crop and that cess is included in the rent which has been fixed, then it must be held that the person was not holding the land under the system of Borga, or adhi but he was a tenant with occupancy right and the rent was fixed by which the cess was also included.

5. Proviso to section 3(17) may now be considered. It reads:
"Provided that a person who, under the system generally khown as "Adhi", Borga" or "Bhag" cultivates the land of another person on condition of delivering a share of the produce to that person, is not a tenant, unless—
(i) such person has been expressly admitteed to be a tenant by his landlord in any document executed by him or executed in his favour and accepted by him; or
(ii) He has been or is held by a Civil Court to be a tenant."

6. Having considered these three decisions the opinion is that the 14 DLR 801 had correctly interpreted the law which was reiterated in 20 DLR 746 and in that view of the matter there is no hesitation in saying that the plaintiffs' vendor was tenant of the landlords Sannyals and Ext. 3 is such document backed by Ext. 4 series and evidence of P. W.3. The plaintiff has filed the dakhilas Ext. 4 series and P. W.3 Narayan Chandra Roy admitted that these dakhilas were written by Provash Chandra who was the Tahsildar of the Estate. The Appellate Court below had discarded these evidence without any reason. Next, on the possession, the appellate court below took the view that the defendant's possession had bee proved. Mr. Pal has placed the evidence P. W.5 on whom the appellate court relied for coming to its conclusion. On scrutiny, it is found that the appellate Court had misread the evidence and no inference could be drawn as it did for finding possession of the defendant. Plaintiff purchased it by registered kabala from his vendors who were the tenants, therefore his title was rightly declared by the trial Court and the High Court Division took the correct view that the appellate Court below had drawn erroneous inference from the evidence and rightly set aside the judgment of the appellate Court below and restored the trial court's decision.

In the result therefore this appeal is dismissed with costs.
Ed.

Saeeda Yasmin and others Vs. Capital Service Center Ltd and others, 57 DLR (AD) (2005) 189

Case No: Civil Petition for Leave to Appeal No. 956 of 2003

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Citation: 57 DLR (AD) (2005) 189

Case Year: 2005

Appellant: Saeeda Yasmin and others

Respondent: Capital Service Center Ltd and others

Subject: Procedural Law,

Delivery Date: 2005-6-29

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tofazzul Islam J

Saeeda Yasmin and others
..............................Petitioners
Vs.
Capital Service Center Ltd and others
………………….Respondents

Judgment
June 29, 2005.

The Code of Civil Procedure, 1908 (V of 1908)
Section 115
Judicial order of a court should be speaking assigning the reason of arriving at the decision taken. In spite of that even if the order itself be not elaborate or speaking but if the decision is taken is proper, the order passed is sustainable.

Lawyers Involved:
AM Mahbubuddin, Advocate (appeared with the leave of the Court) instructed by Md. Aftab Hossain, Advocate‑on‑Record‑For the Petitioners.
M Saleem Ullah, Advocate, instructed by Sufia Khatun, Advocate‑on‑Record‑For Respondent No. 1.
Not represented‑Respondent Nos. 2‑4.

Civil Petition for Leave to Appeal No. 956 of 2003.
(From the Judgment and Order dated February 5, 2003 passed by the High Court Division in Civil Revision No. 235 of 2002).

JUDGMENT

Md. Ruhul Amin J.

This petition for leave to appeal has been filed against the judgment of February 5, 2003 of the High Court Division in Civil Revision No. 235 of 2002 discharging the Rule which was obtained impugning the order dated 8‑11‑2001 (Order No. 43 dated 8‑11‑2001) of the 1st Court of Joint District Judge, Dhaka passed in Title Suit No. 225 of 1998 allowing the prayer for amendment of the plaint. The High Court Division discharged the Rule on the finding since the learned Joint District Judge on consideration of the application for amendment of the plaint and the objection filed thereto as well as the other materials has quite correctly found that the proposed amendment would not change the nature and character of the suit and that on consideration of the materials on record we are also of the view no interference is called for with the order of the learned Joint District Judge allowing the prayer for amendment of the plaint. It has been contended on behalf of the petitioner that the order of the trial Court allowing the prayer for amendment of the plaint is cryptic and that lacks reasoning and, as such, the High Court Division was in serious error in maintaining the order which is not speaking and that reasoning in support of the order is absent.

2. The order of the trial Court as well as of the High Court Division is not an elaborate one assigning reasoning in detail in support of the orders so passed. The law is now settled that merely because an order of a Court is not an elaborate one or that is not speaking one as should have been but for that the same is not liable to be set aside if on consideration of the materials on record it is seen that the order so passed is sustainable. We have perused the plaint sought to be amended and the application filed seeking amendment of the plaint as well as the other materials on record. The amendment so sought in major part is formal one and the rest is elaboration of the facts already averred in the plaint.

3. The learned Counsel for the petitioner felt difficulty to point out that incorporation or deletion of the facts stated in the application seeking amendment of the plaint in what respect and how it will change the nature and character of the suit.

4. On consideration of the materials on record i.e. the plaint sought to be amended and the application filed seeking amendment of the plaint, we are of the view that insertion of the facts sought to be inserted will not change the nature and character of the suit, which is a suit for specific performance of contract for sale of land, as such, the High Court Division was not in error in maintaining the order of the trial Court allowing the prayer for amendment.

Accordingly the petition is dismissed.

Ed.

Safi Uddin Vs. District Judge, Dhaka & others, 3 LNJ AD (2014) 1

Case No: Civil Petition for Leave to Appeal No. 2208 of 2011

Judge: Md. Abdul Wahhab Miah,

Court: Appellate Division ,,

Advocate: Syed Shaheed Hossain,,

Citation: 3 LNJ AD (2014) 1

Case Year: 2014

Appellant: Safi Uddin

Respondent: District Judge, Dhaka & others

Subject: Writ Petition, Writ Jurisdiction,

Delivery Date: 2012-07-08

APPELLATE DIVISION
(CIVIL)

Md. Muzammel Hossain, CJ.
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
Md. Shamsul Huda, J.

Judgment
8th July, 2012.

Safi Uddin
. . .Petitioner (In person).
-Versus-
District Judge, Dhaka & others
. . . Respondents.

Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Section 96
The suit proceeded and the same was dismissed on 22.10.2009 on contest and decree was drawn up on 29.10.2009. Against the said decree, the petitioner had an efficacious /alternative remedy by way of filing an appeal under section 96 of the Code, but instead filed the writ petition without giving any explanation for not availing the said efficacious/alternative remedy. ...(18)

Constitution of Bangladesh, 1972
Article 102
Code of Civil Procedure (V of 1908)
Order XXXVII Rule 2(2)
There is no scope on the part of the writ-petitioner to challenge the judgment and decree passed in the summary suit styling the same as an order by taking objection of rule 2(2) of Order XXXVII of the Code, that is, non-obtaining of leave of the Court to appear and contest the suit. When the suit itself was dismissed on merit on contest by judgment and decree dated 22.10.2009 by the learned District Judge, by no stretch of imagination, it can be said that leave to appear and to defend the suit was not given to the defendant by the concerned Judge within the meaning of rule 2(2) of Order XXXVII of the Code. ...(21)

Constitution of Bangladesh, 1972
Article 102
Writ petition has to be filed following the High Court Division Rules and the grounds and prayers have to conform to the language of the Article 102 of the Constitution. Rule issuing Bench exercising the initial Power of judicial review must apply its judicial mind while issuing Rule. The Appellate Division strongly disapproved such exercise of power by the Rule issuing Bench.
The application under article 102 of the Constitution was not filed following the High Court Division Rules and the grounds taken and the prayers made therein did not conform to the language of the said article and no explanation, whatsoever, was given therein for not filing the appeal against the decree dismissing the suit. It further appeared to us that the Rule issuing Bench issued the Rule just as a matter of course, as if it were the inherent right of the litigant, the petitioner to get a Rule on mere filing an application under article 102 of the Constitution. The concerned Bench of the High Court Division while entertaining the writ petition leading to the issuance of the Rule failed to consider the mistake in the cause title of the writ petition, non impleading of the necessary party, namely: American Express Bank Limited (the defendant in the summary suit) in the writ petition, impugning the judgment and decree passed by the District Judge styling the same as order, besides the defect in formulating the grounds and couching the prayer as pointed out hereinbefore and thus, fell into an error in exercising the initial power of judicial review by issuing the Rule. Had the Rule issuing Bench applied its mind to the above apparent aspect of the writ petition, possibly, no Rule would have been issued on the application filed by the petitioner. We strongly disapprove this kind of exercise of power by the Rule issuing Bench of the High Court Division. ...(22)

For the Petitioner : Safi Uddin, in person.
For the Respondents: Syed Shaheed Hossain, Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record

Civil Petition for Leave to Appeal No. 2208 of 2011

JUDGMENT

Md. Abdul Wahhab Miah J.

This petition has been filed by the petitioner against the judgment and order dated the 16th day of May, 2011 passed by a Division Bench of the High Court Division in Writ Petition No. 8824 of 2009 discharging the Rule.

2. Facts giving rise to this leave petition arc as follows:

3. The petitioner filed the said writ petition before the High Court Division in a cumbersome manner challenging the order (though it was a decree) dated 22.10.2009 passed by the District Judge, Dhaka dismissing Summary Suit No. 16 of 2005. The petitioner impleaded the District Judge, Dhaka and the Government of Bangladesh, represented by the Secretary, Ministry of Law as respondent Nos. 1 and 2 without impleading the sole defendant, American Express Bank Limited and then in the cause title it was written as:

IN THE MATTER OF:
Safiuddin —Plaintiff
VERSUS
American Express Bank Ltd—Defendant

4.         Grounds taken in the writ petition were nowhere near the language of article 102 of the Constitution of the People’s Republic of Bangladesh (the Constitution).

5.         In the prayer of the writ petition, Rule was prayed for only against the District Judge, Dhaka calling upon him to show cause as to why the order dated 22.10.2009 dismissing Summary Suit No. 16 of 2005 under the provisions of rule 2(2) of Order XXXVII of the Code of Civil Procedure “without passing by a Judge, order granting leave to appear and defend” shall not be declared to be “violation of the provisions of Rule 2-2 of Order XXXVII of the Code.” Prayer was also made as to why Summary Suit No. 16 of 2005 shall not be disposed of by passing a decree on admission on default by the defendant to obtain court's order granting leave to appear and defend, in accordance with rule 2-.(2) of Order XXXVII of the Code. Thus the prayers were also not made in conformity with the language of article 102 of the Constitution.

6.         However, after the issuance of the Rule, American Express Travel Related Services Company, Inc (AETRSCO) World Financial Centre, American Express Tower, New York, USA represented by the Attorney Mr. Rezwanul Haque, Advocate got itself added as respondent No.3.

7.         In the body of the writ petition, facts were stated in a more cumbersome manner which are as follows:

8.         The cause of action of the application under article 102 of the Constitution arose on alienation of right to a decree on admission of debt on enactment under sections 5 and 6 of the Negotiable Instruments Act, 1881 (the Act, 1881), on Bill of Exchange, violating the provisions of rule 2(2) of Order XXXVII of the Code of Civil Procedure (the Code), "occasioning on passing the impugned order" dismissing Summary Suit No. 16 of 2005 on Bill of Exchange (cheque). The said suit was filed by filing an application under rule 2(2) of Order XXXVII of the Code of "The Summary procedure on Negotiable Instruments" for recovery of debt "on enactment." After the suit was admitted and numbered, the summons thereof in Form No.4 in Appendix B of the Code was duly served upon the defendant-Bank on 21.09.2005 summoning it to obtain 'from a Judge, within 10 days from service; leave to appear and defend," the suit with the warning that its defaults to obtain such leave within the time mentioned therein the allegations in the plaint will be deemed to be admitted and the plaintiff shall be entitled to a decree for the sum mentioned in the summons. Since the defendant-Bank defaulted to appear within the period of 10(ten) days from the date of service of the summons on 21.09.2005 or to obtain leave to appear and defend the suit, decree on admission was passed in the suit on 22.01.2006 in accordance with the provisions of rule 2(2) of Order XXXVII of the Code. Thereafter, the learned District Judge alienated the right of the petitioner to a decree on admission on passing the impugned order dismissing the suit in violation of the provisions of rule 2(2) of Order XXXVII of the Code. Thereafter, the petitioner "served notice under the provision of article 102 of the Constitution" and filed the writ petition.

9.         In the writ petition, it was further contended by way of submission that the defendant-Bank defaulted to appear or obtain the Court's order granting leave to appear and defend the suit by filing "certified copy" of "entry in banker book" within the meaning of section 4 of the Banker's Book Evidence Act, 1891 disclosing such fact as would prove consideration for the instrument or instruments in question in accordance with the provisions of rule 3 of Order XXXVII of the Code; the defendant, American Express Bank Ltd, (it was not made a party in the writ petition as already stated hereinbefore) is a Banker within the meaning of section 3(b) of the Act, 1881 transacting the business of accepting deposit of money from the public payable on demand and withdrawal by order; according to the provisions of sections 5 and 6 of the Act, 1881, Bill of Exchange drawn on Bank is a cheque and is a "debt on enactment", within the meaning of section 31 thereof; the defendant Bank having sufficient fund in its hands must pay the Bill of Exchange (cheque) and in default, must compensate the drawer for loss or damage caused on such default; in accordance with the provisions of section 128(2)(f)(i) of the Code "The Summary procedure on Negotiable Instruments" under Order XXXVII of the Code is the only efficacious remedy.

10.       From the impugned judgment and order as well as from the record, it further appears that the Rule was issued on respondent No.l, District Judge, Dhaka only to show cause as to why "the order passed on 22.10.2009 dismissing the Summary Suit No. 16 of 2005 violating the provisions of Rule 2(2) of Order XXXVII (sic) Code of Civil Procedure; without passing the Court of District Judge, Dhaka the Court's order granting leave to appear or to defend shall not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.'

11.       From the impugned judgment and order, it appears that the Division Bench which heard the Rule allowed the added respondent No. 3 to contest the Rule by filing an affidavit-in-opposition wherein it was contended, inter alia, that the petitioner earlier instituted Money Suit No. 13 of 1996 in the Court of Joint District Judge, 5th Court, Dhaka over the same cause of action praying for a decree to the effect:

বাদীর অনুকূলে বিবাদীদ্বয়ের বিরম্নদ্ধে তপসিল বর্ণিত ২৫ টি ট্রাভেলার্স চেকের মূল্য ২৫০০ মার্কিন ডলার হিসাবে ১০০৯৩৩.৭৫ টাকা এবং কমিশন ও অন্যান্য চার্জ বাবদ ১০৮৯.২৫ টাকা, সর্বমোট ১,০২,০২৩/- টাকা আদায়ের ডিক্রি দিতে.

12.       The suit on being transferred to the Court of Joint District Judge and Artha Rin Adalat, Third Court, Dhaka was renumbered as Money Suit No. 14 of 1999. During the pendency of the said money suit, the petitioner without seeking permission of the Court instituted Summary Suit No. 16 of 2005 before the District Judge, Dhaka under Order XXXVII of the Code. The Court without due sanction of law most illegally decreed Money Suit No. 14 of 1999 for Tk. 1,02,023. 00 although all 25 (twenty five) travelers -cheques each of U.S$ 100 were encasscd on 08.08.1995 via Philadelphia International Bank, New York, because those were duly signed by the plaintiff. Being aggrieved by and dissatisfied with the said decree, the defendant-bank preferred Money Appeal No. 09 of 2000 before the District Judge, Dhaka, which was eventually heard by the learned Additional District Judge, Seventh Court, Dhaka who by his judgment and decree dated 24.05.2003 allowed the appeal and set aside the judgment and decree passed by the trial Court and remanded the suit for rehearing on taking further evidence on the said travelers cheques. The trial Court accordingly, proceeded with the suit as per direction given by the appellate Court which is still pending for disposal. Since all travelers cheques were encashed and disposed of, Order XXXVII of the Code had no manner of application in the present case. During the pendency of the said Money Suit the defendant Bank was merged with Standard Chartered Bank with effect from 01.08.2005. Due to the change of management, the defendant Bank could not trace out any notice/summons issued by the Court concerned. The concerned officers of the defendant-Bank, subsequently, on receipt of notice issued in Summary Suit No. 16 of 2005 regarding payment of the decreetal amount examined the connected records and filed an application on 24.04.2006 under Order XXXVII, rule 4 of the Code with the prayer for setting aside the ex-parte decree dated 15.01.2006 and to give chance to the defendant to defend the suit on merit. Subsequently, on 25.05.2006 the defendant-Bank filed a supplementary affidavit in support of its case and regretted for its inability to take appropriate action when the summons "appear/may have been served at a time when the situation was unusual in nature, and sought leave of the Court to defend the suit upon setting aside the ex-parte decree." Initially the Summary Court passed ex-parte decree for taka 1,62,500.00 against the alleged loss of US$ 2500, but subsequently, the decree was amended without notice to the Bank for US$ 1,19,605.00 upon an application of the plaintiff filed under sections 152 and 153 of the Code. The plaintiff's claim is T.C. for US$ 2500 but the decree was passed for US$ 1,19,605.00 causing serious hardship to the defendant. Moreover, the Summary Court could not, at all, pass any ,decree since no negotiable instrument was before the Court, rather those having been encashed and honoured the summary suit was incompetent. Since the T.C. business of the added respondent was conducted in Bangladesh, among others, by American Express Bank and the said Bank closed its business here the added respondent on 20.11.2008 filed an application in Summary Suit No. 16 of 2005- to substitute the name of the added respondent in the plaint and the written statement for American Express Bank Ltd and the trial Court by order dated 12.08.2009 allowed the same. The added respondent then contested the suit in its own behalf and adduced evidence, oral and documentary, but the plaintiff neither filed any document nor adduced any oral evidence to -prove his case. The learned District Judge dismissed the suit by his judgment and decree dated 22.10.2009. The trial Court's order of granting leave to defend the suit setting aside the ex-parte decree was challenged in the High Court Division by the petitioner in Civil Revision No. 2855 of 2006 but he lost. In view of the provisions of section 96 of the Code, the writ petition was not maintainable.

13.       A Division Bench of the High Court Division on hearing the said writ petition by the impugned judgment and order discharged the Rule; hence this petition for leave to appeal.

14.       Safi Uddin, petitioner, has appeared in person lie tried to assail the impugned judgment and order by submitting that the High Court Division totally misconceived the provisions of rules 2(2) and 4 of Order XXXVII of the Code vis-a'-vis the facts and circumstances of the case, particularly the fact that the defendant failed to appear and obtain leave to contest the suit within 10(ten). days as was mentioned in the summons served upon it in Form No.4 in Appendix B thereof and thus, erred in law in discharging the Rule maintaining the order dated 22.10.2009 passed by the District Judge dismissing the suit and as such, the same calls for interference by this Division.
15.       Syed Shaheed Hossain, learned Advocate, entering caveat on behalf of respondent No. 3, on the other hand, supported the impugned judgment and order passed by the High Court Division.

16.       From the impugned judgment and order, it appears that the Rule was discharged on the finding, inter alia, that the writ petition alleging the violation of rule 2(2) of Order XXXVII of the Code, that is, non-obtaining of permission of the Court by the respondent to appear and contest the suit was absolutely a misconceived one as the said point was raised and decided in Civil Revision No. 2855 of 2006 filed against the   order dated 11.07.2006 by which the ex-parte decree passed in the summary suit on 15.01.2006 was set aside and the suit was restored to its file and number; on 3 1.03.2008 the petitioner himself prayed before the Court to pass an order under Order XXXVII, rule 4 of the Code and then On 09.08.2009 the petitioner again made a prayer "to direct that all the orders passed since 9.4.2006 on allowing the defendant to appear be deleted" which prayer was rejected on 12.08.2009 vide order No.51, but this order which relates to the issue in question, was never agitated before higher forum. Ultimately, the trial Court on framing issues and discussing the evidence dismissed the summary suit on 22.10.2009 mainly on the finding that the plaintiff failed to prove his case and as such, he was not legally entitled "to replacement or refund of lost travelers cheques" and that the suit was barred under order XXIII, rule 1(3) of the Code.

17.       The application filed by the defendant-Bank under Order XXXVII, rule 4 of the Code has been filed by respondent No.3 by filing an additional paper book. From the prayer of the application, it appears that along with the prayer for setting aside the ex-parte decree dated 15.1.2006 (decree was drawn and signed on 25.1.2006) and restoring the summary suit to its file and number, prayer was also made to give the defendant a chance to contest the suit on merit.

18.       From the order dated 11.07.2006 passed in Summary Suit No. 16 of 2005, it appears that the Court allowed the said application, set aside the ex-parte decree passed on 15.1.2006 and restored the suit to its original file and number and fixed the next date on 13.08.2006 for filing writ ten statement and thus, gave leave to the defendant-Bank to contest the suit within the meaning of rule 2(2) of the Code; the moment-, the ex-parte decree was set aside and the defendant was allowed to file written statement which was affirmed by the High Court Division in Civil Revision No.2855 of 2006, the plaintiff- petitioner, no more, could say that he was entitled - to the decree for the sum claimed by him in the suit on the plea of defendant's failure to appear in the suit within the time fixed in the summons in Form No.4 in Appendix-B as provided in rule 2(2) of Order XXXVII of the Code. Besides, that from the impugned judgment and order it further appears that the petitioner filed an application on 9.8.2009 in the summary suit for deleting all orders passed since 09.04.2006 allowing the defendant to appear and the Court by its order dated 12.08.2009 rejected the application on the ground that the order dated 11.07.2006 setting aside the ex-parte decree was upheld by the High Court Division in Civil Revision No. 2855 of 2006 and against the order dated 12.08.2009, the petitioner did not move the higher Court, Moreso, we failed to understand how the petitioner could file the writ petition without impleading American Express Bank which was the sole defendant in the suit and on whose application, the ex-parte decree was set aside and that too praying for issuance of Rule only upon respondent No.l, the District Judge, Dhaka. It further appears that the Rule in the civil revision in which the order dated 11.07.2006 was challenged was discharged on 31.07.2007. Thereafter, the suit proceeded and the same was dismissed on 22.10.2009 on contest and decree was drawn up on 29.10.2009. Against the said decree, the petitioner had an efficacious/alternative remedy by way of filing an appeal under section 96 of the Code, but instead filed the writ petition without giving any explanation for not availing the said efficacious/alternative remedy.

19.       The cause title as well as the prayer of the writ petition show that the petitioner challenged the order dated 22.10.2009 passed in Summary Suit No. 16 of 2005 by which the suit was dismissed although in fact, it was a judgment and decree. It is also worth noting that the petitioner filed the writ petition suppressing the material facts that on an application filed by the defendant-Bank under rule 4 of Order XXXVII of the Code, the ex-parte decree passed earlier in the summary suit was set aside and the defendant Bank was allowed to file written statement and the order, setting aside the ex-parte decree was upheld in Civil Revision No. 2855 of 2008 and the further fact that his application for deleting all orders since 09.04.2006 allowing the defendant to appear was rejected on 12.08.2009 against which he did not move the higher Court.

20.       From the judgment and order of the High Court Division in Civil Revision No. 2555 of 2006, it further appears that the point agitated in the writ petition was squarely agitated there, but it did not find favour of the Court and a Division Bench of the High Court Division on detailed discussion discharged the Rule maintaining the order setting aside the exparte decree by the learned District Judge with the finding:

"On perusal of the application under Order 37 Rule 4, we are satisfied that the defendant bank made out a ease of special circumstance for not appearing in the suit when -the suit was taken up for exparte decree and it was beyond its control. We also noticed that the initial claim of the plaintiff was US$ 2500.00 equivalent to Tk. 1,62,500.00 but the learned District Judge abruptly amended the decree on the basis of an application filed by the plaintiff and decree US$ 1,19,606.00. This modification appears to us suspicious. We also noticed that the cheques were allegedly lost on 05.02.95 and the summary suit was instituted on 13.05.05, more than 10 years after the alleged missing. The defendant bank merged with the Standard Chartered Bank on 01.08.2005 and the plaintiff had chosen the time to institute the suit during that transitional period, when it was probable that the summons of the suit could not be traced out as the plaintiff had already instituted a Money Suit. On consideration of the facts and circumstances of the matter, we arc of the view that though the learned District Judge has not assigned proper reason but the defendant bank has been able to make out a case of special circumstances for not appearing in the suit when the suit was taken up for exparte hearing. In view of the above we find substance in the contention of the learned Advocate for the opposite party bank. We hold that the learned District Judge has committed no error of law occasioning failure of justice in setting aside the exparte decree, In view of the above, we find no merit in this rule."

21.       Therefore we do not see any scope on the part of the writ-petitioner to challenge the judgment and decree passed in the summary suit styling the same as an order by taking objection of rule 2(2) of Order XXXVII of the Code, that is, non-obtaining of leave of the Court to appear and contest the suit. When the suit itself was dismissed on merit on contest by judgment and decree dated 22.10.2009 by the learned District Judge, by no stretch of imagination, it can be said that leave to appear and defend the suit was not given to the defendant by the concerned Judge within the meaning of rule 2(2) of Order XXXVII of the Code. Moreso, the Code clearly provided for an appeal against the judgment and decree dated 22. 10.2009 passed in the summary suit within the meaning of section 96 thereof which was definitely efficacious, the writ petition filed by the petitioner against the said judgment and decree was not maintainable and the High Court Division rightly held so.

22.       In the context, we arc constrained to observe that before issuing Rule on an application under article 102 of the Constit-ution, it is the duty of the Court exercising the power of judicial review to see that in filing the application, the relevant rules of High Court Division Rules are followed, the grounds taken in the application and the prayer made therein conform to the language of the said article of the Constitution. In case the Statute provides a remedy by way of appeal or otherwise, there must be an explanation in the application for not availing the same, but as pointed out hereinbefore, the application under article 102 of the Constitution was not filed following the High Court Division Rules and the grounds taken and the prayers made therein did not conform to the language of the said article and no explanation, whatsoever, was given therein for not filing the appeal against the decree dismissing the suit. It further appeared to us that the Rule issuing Bench issued the Rule just as a matter of course, as if it were the inherent right of the litigant, the petitioner to get a Rule on mere filing an application under article 102 of the Constitution. The concerned Bench of the High Court Division while entertaining the writ petition leading to the issuance of the Rule failed to consider the mistake in the cause title of the writ petition, non impleading of the necessary party, namely: American Express Bank Limited (the defendant in the summary suit) in the writ petition, impugning the judgment and decree passed by the District Judge styling the same as order, besides the defect in formulating the grounds and couching the prayer as pointed out hereinbefore and thus, fell into an error in exercising the initial power of judicial review by issuing the Rule. Had the Rule issuing Bench applied its mind to the above apparent aspect of the writ petition, possibly, no Rule would have been issued on the application filed by the petitioner. We strongly disapprove this kind of exercise of power by the Rule issuing Bench of the High Court Division.

23.       Be that as it may, we find no error committed by the High Court Division in passing the impugned judgment and order calling for interference by this Division.

24.       Accordingly, this petition is dismissed.

End.

Safiqueuddin Ahmed (Md) and another Vs. House Building Finance Corporation, 53 DLR (2001) 80

Case No: Civil Revision No. 8745 of 1991 (Dhaka)

Judge: Md. Joynul Abedin ,

Court: High Court Division,,

Advocate: Mr. Shaheed Alam,,

Citation: 53 DLR (2001) 80

Case Year: 2001

Appellant: Safiqueuddin Ahmed (Md) and another

Respondent: House Building Finance Corporation

Subject: Ex-parte Decree, Procedural Law,

Delivery Date: 2000-6-29

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Joynul Abedin J

Safiqueuddin Ahmed (Md) and another
……..………. Petitioners
Vs.
House Building Finance Corporation
……….……. Opposite Party

Judgment
June 29, 2000.

Bangladesh House Building Finance Corporation Order (PO if 1973)
Article 27(10)
Code of Civil Procedure (V of 1908)
Order IX rule 13
The Miscellaneous case under order 9, rule 13 of the code was incompetent against the ex parte order passed by the District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President’s Order 7 of 1978, inasmuch as, the said ex parte order was liable to be challenged only by an appeal to the High Court Division. … (6)

Lawyers Involved:
Not represented- the Petitioners.
Shaheed Alam, Advocate — For the Opposite Party.
Civil Revision No.8745 of 1991(Dhaka)
Civil Revision No.195 of 1989(Rangpur)

JUDGMENT

Md. Joynul Abedin J.

This Rule calls in question the order dated 7.2.1989 passed by the learned District Judge, Dinajpur in Miscellaneous Case No. 36 of 1984 arising out of Miscellaneous Case No. 28 of 1979 filed by the House Building Finance Corporation under Presidents Order 19 of 1978 dismissing the Miscellaneous Case No. 36 of 1984 under Order 9, rule 13 of the Code of Civil Procedure.

2. House Building Finance Corporation as petitioner filed Miscellaneous Case No. 28 of 1979 against the loanee-petitioner for sale of mortgage property for recovery of the outstanding loan. The loanee-petitioner contested the aforesaid Miscellaneous Case No. 28 of 1979 by filing a written objection disputing the claim made by the House Building Finance Corporation. The aforesaid Miscellaneous Case was eventually allowed ex parte dated 23-5-1985. Accordingly, the loanee started Miscellaneous Case No. 36 of 1984 an application under Order 9, rule 13 of the Civil Procedure for setting aside the said ex parte stating that he could not take steps on 23-05-1984 on account of illness and also filed a medical certificate and the House Building Finance Corporation contested the said Miscellaneous Case No. 36 of 1984 by filing written objection.

3. The learned District Judge, after hearing parties disallowed the Miscellaneous Case setting aside the ex parte order on the ground that the loanee-petitioner could not prove his illness. Hence the present Rule.

4. None appears for the opposite party.

5. Mr. Shaheed Alam, the learned Advocate for the opposite party—House Building Corporation.

6. It appears from the perusal of the revisional application together with the papers filed the including the impugned order and the relevant law, Bangladesh House Building Finance Corporation Order, 1973 (President’s Order 7 of 1978) that the impugned order dismissing the Miscellaneous Case filed by the loanee-petitioner failed to prove the medical certificate by examining any competent witness. This apart, it appears the Miscellaneous Case No. 36 of 1984 under Order 9, rule 13 of the Code of Civil Procedure was incompetent against the ex parte order dated 23-5-1984 passed by the learned District Judge in Miscellaneous Case No. 28 of 1979 in view of Sub-Article (10) of Article 27 of President’s Order 7 of inasmuch as, the said ex parte order was only be challenged by filing an appeal to the High Court Division and not by an application under Order 9, rule 13 of the Code of Civil Procedure. In this view of the matter, the impugned order deserves no interference by this Court.

In the result, the Rule is discharged and the impugned order dated 7-2-1989 passed by the learned District Judge in Miscellaneous Case No. 36 of 1984 is hereby affirmed without any order as to cost.

Ed.

Saheb Ali Dewan Vs. Md. Zahirul Hoque Dewan

Case No: Civil Petition for Leave to Appeal No. 883 of 2008.

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,,

Citation: VI ADC (2009) 684

Case Year: 2009

Appellant: Saheb Ali Dewan

Respondent: Md. Zahirul Hoque Dewan

Subject: Property Law,

Delivery Date: 2009-05-26

Saheb Ali Dewan Vs. Md. Zahirul Hoque Dewan
VI ADC (2009) 684

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J

Saheb Ali Dewan………………………….....Petitioner
Vs.
Md. Zahirul Hoque Dewan…………............Respondent

Judgment
May 26, 2009.

Petitioner praying for a decree for permanent injection restraining the defendant petitioner from dispossessing him from the suit land claiming the suit land on the basis of a deed of exchange dated 22.8.1988 and also the exclusive possession therein. … (2)

Finding that the plaintiff by the evidence on record succeeded in proving his title and possession in the suit land and the courts below did not commit any illegality in appreciating the evidence on record and that the question of identification of the suit land having not been raised in the courts below merited no consideration at the revisional stage. Hence this civil petition for leave to appeal by the petitioner. …. (5)

Lawyers Involved:
Md. Aftab Hossain, Advocate-on-Record-For the Petitioner.
Not Represented-the Respondent.

Civil Petition for Leave to Appeal No. 883 of 2008.
(From the judgment and order dated 10.3.2008 passed by the High Court Division in Civil Revision No. 1079 of 2008)

Judgment

Md. Joynul Abedin J.- This petition for leave to appeal at the instance of the defendant is directed against the judgment and order dated 10.3.2008 passed by a Single Bench of the High Court Division in Civil Revision No. 1079 of 2008 rejecting the revisional application summarily affirming the judgment and decree dated 31.1.2004 passed by the Joint District Judge, 1st Court, Manikgonj in title Appeal No.133 of 2002 and also the judgment and decree dated 29.4.2002 passed by the learned Assistant Judge, Manikganj decreeing the suit in Title Suit No.128 of 2000.

2. The respondent as plaintiff instituted Title No.128 of 2000 in the court of the Assistant Judge, Manikganj against the defendant petitioner praying for a decree for permanent injection restraining the defendant petitioner from dispossessing him from the suit land claiming the suit land on the basis of a deed of exchange dated 22.8.1988 and also the exclusive possession therein.

3. The defendant petitioner contested the suit by filing written statement contending, inter alia, that the plaintiff did not get the suit land on the basis of any deed of exchange and that the defendant was not aware of Title Suit No.317 of 1973, did not receive any summons of the said suit, did not know about the mutation of the plaintiffs name on the basis of the decree passed in the said suit. The defendant alleged that he has title and possession in the suit land and prayed dismissal of the suit.

4. The learned Assistant Judge decreed the suit on contest by the judgment and decree dated 29.4.2002 on the finding that the plaintiff proved his prima facie title and exclusive possession in the suit land. Against the aforesaid judgment and decree the defendant preferred Title Appeal No. 133 of 2002 before the learned District Judge, Manikganj, which was heard on transfer by the learned Joint District Judge, 1st Court, Manikganj, who by the impugned judgment and decree dated 31.1.2004 dismissed the appeal and affirmed the judgment and decree passed by the trial court.

5. Being aggrieved and dissatisfied with the aforesaid judgment and decree the defendant moved the High Court Division in Civil Revision No.1079 of 2008. A Single Bench of the High Court Division after hearing rejected the application summarily on the finding that the plaintiff by the evidence on record succeeded in proving his title and possession in the suit land and the courts below did not commit any illegality in appreciating the evidence on record and that the question of identification of the suit land having not been raised in the courts below merited no consideration at the revisional stage. Hence this civil petition for leave to appeal by the petitioner.

6. Mr. Md. Aftab Hossain, the learned Advocate-on-record for the petitioner submits that the Single Bench of the High Court Division overlooked that the deed dated 22.8.1988 does not correspondent to the land mentioned in the schedule of Title Suit No. 317 of 1973 and as such the plaintiff did not acquire any title in the suit land despite the ex parte decree in his favour in the said suit. He lastly submits that all the courts below including the High Court Division erred in failing to consider that the plaintiff failed to specifically identity the suit land as set out in the schedule to the plaint and as such there has been a failure of justice warranting interference by this Court.

7. We have heard the learned Advocate-on-Record and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division upon consideration of all the points raised and argued on behalf of the defendant arrived at a correct decision on the basis of the materials on record. We therefore find no reason to interfere with the same.

The petition is accordingly dismissed.
Ed.

Sahera Khatun and others Vs. Abdul Gaffar @ Abdul Gaffar and others, 55 DLR (AD) (2003) 79

Case No: Civil Appeal No. 55 of 2000

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: 55 DLR (AD) (2003) 79

Case Year: 2003

Appellant: Sahera Khatun and others

Respondent: Abdul Gaffar @ Abdul Gaffar and others

Subject: Execution Decree,Procedural Law,

Delivery Date: 2001-7-8

Supreme Court
Appellate Division
(Civil)

Present:
Mainur Reza Chowdhury J
Md. Gholam Rabbani J
Md. Ruhul Amin J
Md. Fazlul Karim J

Sahera Khatun and others
…………………..Appellants
Vs.
Abdul Gaffar @ Abdul Gaffar and others
………………......Respondents

Judgment
July 8, 2001

The Code of Civil Procedure, 1908 (V of 1908)
Section 51(a) & Order XXI rule 11(2) (j) (i)
To facilitate execution of a decree for delivery of possession of an immovable property the plaintiff must specify the property. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself….(8)

Case Referred to-
Bigo Rangam Kamon and others vs. Khan Bahadur Khalilur Rahman, PLD 1968 SC 342; Vasuder vs Rajabdar AIR 1970 SC 1475.

Lawyers Involved:
Md. Roushan Ali, Senior Advocate, instructed by Ataul Huq, Advocate‑on‑Record‑For the Appellants.
Mahbubey Alam, Senior Advocate, instructed by Chowdhury M Jahangir Advocate‑on‑Record‑For the Respondents.

Civil Appeal No. 55 of 2000
(From the judgment and order dated 4th February 1999 passed by the High Court Division in Civil Revision No. 4156 of 1997).

JUDGMENT

Md. Fazlul Karim J.

This appeal by leave granted on 9‑3‑2000 is for consideration as to whether the High Court Division has fallen into an error of law in holding that the appellants who are co‑sharers in the suit property were not entitled to possession of the decretal land, although they were found dispossessed from the entire property during the pendency of the suit.

2. In the year 1976 Taizuddin Bhuiyan and his wife Faizunnessa, predecessors of the appellants, instituted a suit for declaration of title in respect of entire suit land measuring 2.28 acres of land in Plot Nos. 63, 64, 71, 65, 72, 71/1066 and for further declaration that the suit property is not an enemy property.

3. Defendant Nos. 1‑4 contested the suit filing jointly written statement and claimed leasehold right under defendant No. 5, the Assistant Custodian and Additional Deputy Commissioner (Revenue).

4. Defendant No. 5 contested the suit stating that the land in suit is an enemy property and the plaintiff is not entitled to get the decree.

5. The suit was ultimately decreed declaring the plaintiffs 16 annas interest in the suit land and that the same was never an enemy property and further directed to deliver vacant possession of the suit land to the plaintiff within 30 days of the decree by an order of permanent mandatory injunction and an appeal therefrom was, however, allowed in part setting aside the impugned judgment and decree of the trial Court but declaring the right, title and interest of the plaintiff to the extent of 2 annas share only of the suit land. Revision therefrom was taken in Civil Revision No. 79 of 1986 but the same was disposed of with observation on 22‑9‑1986 holding that plaintiff is entitled to get possession to the extent of 2 annas share in the suit land and is lawfully entitled to restoration of possession to the extent of 2 (two) annas share as decreed by the lower appellate Court. The appellant instituted title execution case No. 5 of 1988 for execution of the decree claiming recovery of possession of 0.28 acres of land out of 0.60 acre of Plot No. 65 but the defendant filed an application on 24‑8‑1997 to strike off the aforesaid execution case on the ground that since 2 annas share of the plaintiff was not specified in the decree or in the revisional application before the High Court Division the plaintiff could not proceed with the execution case but the learned Senior Assistant Judge by order dated 12‑10‑1997 rejected the application holding that there is no reason to reject the execution case filed by the plaintiff. The judgment‑debtor thereafter moved the High Court Division in Civil Revision No. 4156 of 1997 on the ground that the plaintiffs have got a decree only in respect of 2 annas share in the suit land i.e., 0.28 acres out of 2.28 acres of land in six plots and for restoration of possession thereof and in the absence of specification in the decree as to how and from which partition of the suit land said 0.28 acres of land would be carved out and given possession to the plaintiff, the decree is not executable without resorting to a partition suit. Plaintiff having asked for restoration of possession to the building and the adjacent land measuring 0.28 acres out of 0.60 acres on plot No. 65 by way of execution of the decree is going beyond the terms of the decree and, as suck the execution case is liable to be struck off as not maintainable. The Rule in Civil Revision No. 4156 of 1997 was made absolute on 4‑2‑1999 on the finding, inter alia, that in the instant case, the decree in favour of the plaintiff was passed by the' lower appellate Court and not by the trial Court. Subsequently, this court in its revisional jurisdiction, in addition to its affirmance of the decree regarding declaration of title by the lower appellate Court, also gave a direction for restoration of possession of the said 0.28 acres land by way of mandatory injunction. But that too without any specification/guidelines as to how this 0.28 acres of land from the said six different plots should be carved out and given possession to the plaintiff. This is however besides the point, whether this Court in revision could competently pass a decree for mandatory injunction in the absence of any prayer made in this regard by the plaintiff. The executing Court is not competent to question the legality or otherwise of the decree and is only required to execute the decree as it is, provided it is executable.

6. The appellant accordingly, moved this Division with Civil Petition No. 548 of 1988 wherein leave was granted as aforesaid.

7. Mr Roushan Ali, the learned Counsel appearing for the appellants, submits that since the Plaintiff‑ appellants were illegally dispossessed/ evicted by the Police during the pendency of the suit at the instance of defendant No. 3 the Additional Deputy Commissioner Revenue Narayangonj, from 0.28 acres of land out of Plot No. 65 at the southern portion with a pucca building thereon, the decree sought to be executed in the execution case should be taken to be the decree passed in the suit and is accordingly, executable as it does not suffer from any lack of specification. The learned Counsel further submitted that the High Court Division in Civil Revision directed the executing Court to execute the decree and, as such the executing court rightly refused to strike off the execution case inasmuch as the defendant No. 4 had no locus standi

8. Admittedly, the suit was decreed by the Court of appeal below declaring of the plaintiff appellant's 2 annas share in the suit land consisting of 6 plots, namely, 63, 64, 71, 65, 72 , 71/ 1066 totalling 2.28 acres of land. Although, the appellant has sought to be restored in possession in respect of 0.28 acres of the suit land in the building in Plot No. 65 situated to the southern portion thereof allegedly evicted by defendant No. 5 but the decree obtained by the plaintiff being a decree for declaration the same is not executable. In the case of Bigo Rangam Kamon and others vs. Khan Bahadur Khalilur Rahman, PLD 1968 SC 342 it has been held, inter alia, "that a decree held to be decretal in nature is not liable to be executed through the intervention of the Court." High Court Division as well observed that the lower appellate Court passed the decree declaring title of the plaintiffs to 0.28 acres of land out of six different plots but gave a direction by way of mandatory injunction for restoration of possession to the said 0.28 acres of land without any specification. Such decree, in our opinion, is inexecutable for lack of specification. Section 5l (a) read with Order XXI, rule 11 (2)(J)(i) of the Code of Civil Procedure requires that a decree for delivery of Possession of an immovable property must specify the immovable Property to facilitate execution of the case. The executing Court can neither go beyond nor behind the decree to supply the specification which is not there in the decree itself. Because that would amount to usurping the jurisdiction of the trial Court. The present decree, in the absence of necessary specifications, is not

9. It is a cardinal principle of law that a Court executing a decree cannot go behind tile decree between the parties or their representatives, if must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or facts. Reference in this regard may be made to the case of Vasuder vs. Rajabdar AIR 1970 SC 1475. In view of this, we do not find any possible reason to differ from the finding Of the High Court Division and also with the principles of law above. In view of tile nature of the decree in the instant case, best course for the appellant would be to go for a suit for Partition, if he is so advised, in case of failure of the plaintiff to Obtain possession of his 2 annas share in the suit land decreed in his favour by amicable partition.

10. The learned Counsel could not show any error of law or infirmity in the impugned judgment for our interference in this appeal.

The appeal is accordingly, dismissed without costs.

Ed.

Saifuddin Murad Vs. The State 2017 (2) LNJ 1

Case No: Criminal Appeal No. 10074 of 2015

Judge: Md. Rais Uddin. J.

Court: High Court Division,

Advocate: Mr. Abul Kalam Mainuddin, Mr. Shaiful Bashar Bhandary,

Citation: 2017 (2) LNJ 1

Case Year: 2016

Appellant: Saifuddin Murad

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-08-14

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Md. Rais Uddin, J.

Judgment on

08.11.2016

}

Saifuddin Murad

.. Accused-Appellant

-Versus-

The State

... Respondent

Arms Act (XI of 1878)

Section 21

Bengal Arms Act Manual, 1924

Rule 74

Av‡Mœqv‡¯ªi jvB‡mÝ cÖ`vb, bevqb I e¨envi bxwZgvjv, 2016

bxwZ 29

From a combined reading of the above provisions of law, it is a clear proposition of law that the maximum amount of ammunition can be possessed during the year by the holder of a licence of Revolver and Pistol, 100 rounds bullets. The strict requirement of law is that onus lies on the prosecution to prove its case beyond all reasonable doubt. The learned Judge of the Special Tribunal failed to consider the above provisions of law that the accused-appellant is entitled to purchase 50 pieces of bullets at a time and keep in his custody maximum 100 pieces of bullets. In the instant case the prosecution has found 98 pieces of bullets in the possession of the accused-appellant which is not violation of provision of law under section 21 of the Arms Act, 1878 and as such the learned Judge of the Special Tribunal passed the impugned judgment and order of conviction is not sustainable in law. . . . (29 and 30)

Mr. Abul Kalam Mainuddin, Advocate.

. . . For the accused-appellant.

Mr. Shafiul Bashar Bhandary, D.A.G with

Mr. Swapan Kumar Das, A.A.G.

. . . For the State.

JUDGMENT

Md. Rais Uddin, J. This appeal is directed against the judgment and order of conviction and sentence dated 18.11.2015 passed by the learned Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 300 of 2013 corresponding to G.R. Case No. 368 of 2013 arising out of Zatrabari Police Station Case No. 98 dated 28.04.2013 convicting the appellant under section 21of the Arms Act, 1878 and sentenced him to suffer simple imprisonment for 1 (one) month with a fine of Tk. 100/- (one hundred) only in default to suffer simple imprisonment for 7(seven) days more.

2. The prosecution case, in short, is that one Sub-Inspector of police, namely, Md. Aslam Ali lodged a written ejahar with Zatrabari Thana at 11.15 a.m. on 28.04.2013 alleging inter alia that the informant with the help of Sub-Inspector/21936 Md. Hafizur Rahman, Constable/8331 Monir, Constable/19508 Billal arrested accused Saifuddin Murad son of Yousuf Harun and recovered from him (1) 1(one) pistol written on the body as READ MANUAL BEFORE USE PATEMTED BERETTA USA CORP ACKK, MD (2) 04 Mazgin written as CAL. 7.65 M.M/32 Auto MADE IN ITALY, (3) total 98 (ninety eight) round Pistol Bullets out of which 72 round .32 bore and 20 round 7.65 bore and (4) 1(one) M.T. Cartridge with spot of firing pin in back side (5) 1(one) license of Pistol with Star mark written as No. 41/19/2009 MD. SHAIFUDDIN MURAD. In course of duty period in Thana he got information through wireless that one person was lying at Second Floor of a Multistoried building of Ibrahim, at 22/2/B Golapbag under Zatrabari Police Station with bullete injury. On hearing that he went there at once and came to know that injured person were taken away towards emergency department of Dhaka Medical College and Hospital. He duly informed the incident to the higher authority and went there at Dhaka Medical College Hospital Morgue and found dead body of Morshed Kamal, son of late Hazi Bulu Miah. At that time accused was present with the victim and on query the informant came to know that victim died by bullet injury in his abdomen through licensed pistol of the accused. That at one stage of interrogation accused informed that Pistol kept at Second Floor Multi storied building of Ibrahim, situated at 22/2/B Golapbag under Zatrabari Thana. Thereafter the said Pistol was recovered on 28.04.2013 at 9.30 a.m. from a table of the said office, and it appears from the License that only 50 bullets to be kept but the accused violating condition kept 98 round bullets with 4 Magzine in his custody. The accused failed to give satisfactory reply for keeping execess bullets and Magzine. Thereafter, a seizure list was prepared there at 10.10 a.m. on 28.04.2013 and took signature of the witnesses. The accused violating term and condition of license illegally kept excess 48 round bullets and 4 Magzine and thus committed offence under section 21/23 of the Arms Act, 1878.

3. After completion of investigation the police submitted the charge sheet against accused-appellant under section 21 and 23 of the Arms Act, 1878.

4. The accused-appellant was put on trial before the Metropolitan Special Tribunal No.6, Dhaka to answer the charge against him under section 21 and 23 of the Arms Act, 1878 to which he pleaded not guilty and claimed to be tried.

5. At the trial the prosecution has examined as many as 6(six) witnesses while the defence examined none but cross-examined all the prosecution witnesses.

6. The defence case as it transpires from the trend of the cross-examination is that the accused-appellant was innocent and his license and bullets were in accordance with law and he was innocent.

7. On conclusion of the trial the learned Judge of the Tribunal by the impugned judgment found the accused-appellant guilty of the offence under section 21 and 23 of the Arms Act, 1878 and sentenced him as stated above.

8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence the accused-appellant preferred the instant appeal.

9. Mr. Abul Kalam Mainuddin, the learned Advocate appearing for the accused-appellant has placed the memo of appeal, F.I.R., charge sheet, evidence on record and judgment of the court below and submits that the prosecution has failed to prove the charge against the accused-appellant by adducing any independent and neutral witness. He submits that the trial court failed to consider that the accused-appellant is entitled to keep 100 pieces of bullets as per provisions of section 24 of the Bangal Arms Act Manual 1924. He lastly submits that the accused-appellant did not violate any term and condition of his license and as such impugned judgment and order of conviction and sentence is not sustainable in law.

10. Mr. Shafiul Bashar Bhandary, the learned Deputy Attorney General appearing for the State submits that the learned Judge of the trial court assessing the evidence and materials on record rightly found the accused-appellant guilty and sentenced him accordingly and therefore he prayed for dismissed the appeal.

11. In view of the submissions made by the learned advocate for the appellant and the Deputy Attorney General for the State the point is to be decided in the appeal as to whether the learned Judge of the trial court convicted the accused-appellant in accordance with law.

12. Now let us have a look to the nature of the evidence adduced by the prosecution.

13. P.W.1 Md. Aslam Ali, sub-inspector of the police and informant of the case. This P.W. deposed to the effect as has been stated while narrating the case of prosecution. He proved the FIR marked as exhibit-1 and his signature therein marked as exhibit-1/1 seizure list marked as exhibit-2 and his signature therein marked as exhibit-2/1 and identified the accused in the dock.

14. In cross-examination he stated that he lodged the FIR on 27.04.2013 and arrested the accused on the same date from Dhaka Medical College Hospital. He stated that he recovered the arms (¢limi¡l) with license and prepared seizure list. He stated that he was entitled to keep 50 bullets in his custody. He stated that he prepared seizure list on 28.04.2013 and he wrongly mentioned the date under his signature. He stated that he was investigating officer of the murder case. He denied the defence suggestion that the accused-appellant was entitled to keep bullets which was recovered form his possession and he lodged the FIR out of fÊ¢a¢qwp¡z

15. P.W.2 Md. Hafizur Rahman, A.S.I. member of the raiding party. He stated that he was a member of the raiding party along with informant S.I. Aslam Ali.

16. In cross-examination he stated that they recovered one Pistol, 04 Magzine, 98 pieces of bullets. He stated that the accused had license and he could not say whether the accused has violated the terms and conditions of his license. He stated that public were present at the time of preparing seizure list and he did not know their names and addresses. He denied the defence suggestion that he deposed as taught by the informant.

17. P.W.3 Md. Firoz Alam, in his deposition stated that he did not know about the occurrence. He stated that police called him to put his signature on a paper while he went to the police station on 28.04.2013. He stated that he put a signature in a white paper and he had no knowledge about the goods which were recovered. He proved the paper where he put his signature marked as exhibit-3 and his signature marked as exhibit-3/1.

18. In cross-examination he stated that he was a graduate and he put his signature sitting in Jatrabari Police Station.

19. P.W.4 Constable Billal Hossain, stated that he was a member of the raiding party under S.I. Aslam Ali. He stated that there was a murder and recovered arms and who saw the accused in Dhaka Medical College Hospital he was present in the dock.

20. In cross-examination he stated that “Na 27/7/2013 Cw OVe¡| gvgjvi NUbv g‡b nq 28/04/2013| GKB NUbvq `ywU gvgjv nq|’’ He stated that he was not present at the time of recovery of seized goods and he did not make any statement to the investigating officer. He stated that he did not know whether the accused had license for his arms.

21. P.W.5 Auboni Songkor Kor, officer-in-charge of Jattrabari Police Station and investigating officer of the case. During investigation he visited the place of occurrence, prepared sketch map along with index and recorded the statement of the witnesses under section 161 of the Code of Criminal Procedure. He stated that he seized one short gun license and 198 pieces of bullets from the house of the accused and prepared seizure list. He stated that being found prima-facie case submitted charge sheet under section 21 and 23 of the Arms Act. He proved the seizure list marked as exhibit-3 and his signature therein marked as exhibit-3/2, sketch map with index marked as exhibit-4 and his signature therein marked as exhibit-4/1.

22. In cross-examination he stated that he got the charge for investigation on 28.04.2013 after lodged the FIR and accused was arrested in another case and he was shown arrested in this case. He stated that he went to the place of occurrence on 28.04.2013. He stated that A¡p¡j£l m¡Cp¾p °hd ¢Rmz l¡M¡ AÙ» J …¢mpj§q °hd ¢Rmz ®p…¢ml hÉhq¡l h¡ hÉhÙÛ¡fe¡ °hd ¢Rm e¡z a¡C A¢ik¡Nfœ (Q¡SÑn£V) a¡ hm¢Rz He denied the defence suggestion that the case was filed out of conspiracy and the accused did not commit any offence.

23. P.W.6 constable Tobibur Rahman, member of the raiding party who was tendered and the defence declined to cross examine him.

24. On perusal of the evidence it appears that the informant along with his raiding party went to the house of the accused and recovered (1) 1(one) pistol written on the body as READ MANUAL BEFORE USE PATEMTED BERETTA USA CORP ACKK MD, (2) 04 Magzin written as CAL. 7.65 M.M/32 Auto MADE IN ITALY, (3) total 98 (ninety eight) round Pistol Bullets out of which 72 round 32 bore and 20 round 7.65 bore and (4) 1(one) M.T. Cartridge with spot of firing pin in back side, (5) 1(one) license of Pistol with Star mark written as No. 41/19/2009 MD. SHAIFUDDIN MURAD. It appears that P.W.1 informant of the case, P.W.2, P.W.3 and P.W.4 member of the raiding party, P.W.5 investigating officer, P.W.6 also member of the raiding party but he was tendered.

25. On perusal of the impugned judgment it appears that the accused-appellant was convicted for the offence to keep 98 pieces of bulltes stating that “Avmvgxi RãK…Z Gb.wc.we wc¯—jwUi jvB‡m›m ch©‡e¶‡b †`Lv hvq †h, Dnvi 4bs Kjv‡g jvB‡m›m MÖnxZv Z_v Avmvgx eQ‡i 50wUi †ewk ¸wj ivL‡Z AwaKvix bq g‡g© jvB‡m›m cÖ`vbKvix KZ„©c¶ jvB‡m‡›m c„ôv¼b K‡i‡Qb| Avmvgx 98 wU Z_v jvB‡m‡›mi kZ© f½ K‡i AwZwi³ 48 wU ¸wj Zvi †ndvR‡Z †i‡L‡Qb †`Lv hvq| Kv‡RB, wZwb 1878 mv‡ji A¯¿ AvB‡bi 21 aviv my®úófv‡e jsNb K‡i kvw¯—‡hvM¨ Aciva K‡i‡Qb|”

26. Now, certain provision of law of the Bangal Arms Act Manual 1924 and Av‡Mœqv‡¯¿i jvB‡m›m cÖ`vb, bevqb I e¨envi bxwZgvjv- 2016, are required to be referred for having a better view of the dispute in question:

Rules 74: Scale of Ammunition allowed to Licensees. Particulars of the ammunition allowed should be endorsed by the licensing authority in the appropriate column of the license against each weapon. The maximum amount of ammunition which may be possessed by the holders of licences in Forms XVI, XVIII and XIX of the Indian Arms Rules, 1924, is as follows:

Description of arms for which ammunition is to be possessed.	Maximum quantity of ammunition to be possessed at one time by holders of licences in Forms XVI, XVIII and XIX	Maximum quantity of ammunition to be possessed during the year by holders of licences in Forms XVI, XVIII and XIX
1	2	3
Smooth bore muzzle-loading gun	No limit	No limit
Smooth-bore breech-loading gun	No limit	No limit
Rifle .22 bore	No limit	No limit
Rifle of other bores	50 rounds	200 rounds
Revolvers and pistols	50 rounds	100 rounds

27. This removal of the limit does not apply to licenses in forms XVII and XX which are only for a specific quantity of ammunition of any kind as indicated in condition 2 of those licences.

28. The District Magistrate may at his discretion allow any reasonable quantity in excess of the limit prescribed to a person who can prove that he needs more ammunition.

29t ‡Mvjvevi“` µq-weµq:

(K) js e¨v‡ij (e›`yK/kUMvb/ivB‡dj) Ges kU© e¨v‡ij(wc¯—j/wifjevi) Av‡Mœqv‡¯¿i †¶‡Î cÖwZ ePi m‡ev©”P h_vµ‡g 100 wU ¸wj I 50 wU ¸wj µ‡qi AbygwZ †`Iqv hv‡e|

e¨vsK I Avw_©K cÖwZôvb e¨ZxZ Ab¨vb¨ cÖwZôv‡bi bv‡g Bmy¨K…Z cÖwZwU A‡¯¿i wecix‡Z evwl©K m‡ev©”P 50 wU ¸wj µq Kiv hv‡e|

29. From a combined reading of the above provisions of law, I find a clear proposition of law that the maximum amount of ammunition can be possessed during the year by the holder of a licences of Revolver and Pistol, 100 rounds bullets.

30. The strict requirement of law is that onus lies on the prosecution to prove its case beyond all reasonable doubt. The learned Judge of the Special Tribunal failed to consider the above provisions of law that the accused-appellant is entitled to purchase 50 pieces of bullets at a time and keep in his custody maximum 100 pieces of bullets. In the instant case the prosecution has found 98 pieces of bullets in the possession of the accused-appellant which is not violation of provision of law under section 21 of the Arms Act 1878 and as such the learned Judge of the Special Tribunal passed the impugned judgment and order of conviction is not sustainable in law.

31. In view of the above, I find merit in the appeal.

32. In the result, the appeal is allowed. The impugned judgment and order of conviction of sentence dated 18.11.2015 passed by the learned Metropolitan Special Tribunal No.6, Dhaka in Metropolitan Special Tribunal Case No. 300 of 2013 corresponding to G.R. Case No. 368 of 2013 arising out of Zatrabari Police Station Case No. 98 dated 28.04.2013 is hereby set aside. The accused-appellant namely Saifuddin Murad be set at liberty at once, if not wanted in connection with any other case. The sureties are discharged from their respective bail bonds.

Let the Lower Court Records along with a copy of this judgment be sent to the Court below at-once.

Ed.

Criminal Appeal No. 10074 of 2015

Saiful Hoque Vs. Bangladesh House Building Finance Corporation

Case No: Civil Petition for leave to Appeal No. 646 of 2008

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. S. N. Goswami,,

Citation: 17 BLT (AD) (2009) 187

Case Year: 2009

Appellant: Saiful Hoque

Respondent: Bangladesh House Building Finance Corporation

Subject: Property Law,

Delivery Date: 2009-11-03

Saiful Hoque Vs. Bangladesh House Building Finance Corporation
17 BLT (AD) (2009) 187

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J

Saiful Hoque……………………….....Petitioner
Vs.
Bangladesh House Building Finance Corporation………………..Respondent

Judgment
November 3, 2009.

Code of Civil Procedure, 1908
Order 15 Rule 3, Order 14 Rule 2
Issue of Law— Issue touching maintainability of Suit

The learned Advocate for the petitioner submits that the learned Judges of the High Court Division erred in law in not considering the facts and circumstances of the case that the trial court framed the issues on 18.9.1997 and subsequently the suit was posted for peremtory hearing but the suit was Suo Moto withdrawn from the peremtory hearing without giving effect to the applications under Order 11 Rule 14 and Order 11 Rule 21 of the Code of Civil Procedure filed by the plaintiff petitioner and also without considering the Order dated 10.8.2002 wherein it is noted “বিবাদী পক্ষ আদেশ থাকা স্বত্তেও কাগজ পত্র দাখিল করেন নাই। বাদী পক্ষ আইন মোতাবেক Benefit পাইবেন।" the learned Courts below committed error of law in passing the impugned judgment which is against the principle of natural justice and as such the same is liable to be set aside. —Held; We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same. …… (7 & 8)

Lawyers Involved:
S.N. Goswami, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioner.
Not represented- the Respondent.

Civil Petition for leave to Appeal No. 646 of 2008.
(From the judgment and order dated 2.3.2008 passed by the High Court Division in Civil Order No.1010 of 2008)

Judgment

Md. Joynul Abedin J.-This petition for leave to appeal by the plaintiff is directed against the judgment and order dated 2.3.2008 passed by a Division Bench of the High Court Division in Civil Order No.1010 of 2008 discharging the rule affirming the judgment and decree dated 21.1.2008 and 7.9.2003 respectively passed by the learned Additional District Judge, Pabna, First Court, in Title Appeal No.256 of 2003 and the First Court of the Joint District Judge (the then Subordinate Judge), Pabna in Title Suit No.26 of 1995 dismissing the suit on the ground that "বাদীর মোকদ্দমা রক্ষনীয় নয় হেতু বাদীর আরজী এতদ্বারা নাকচ হয়।"

2. The petitioner as plaintiff instituted Title Suit No.26 of 1995 in the 1st Court of the Joint District Judge, Pabna for declaration of title in the suit land on the averments, inter alia, that the suit land originally belonged to one Zinnat Ali, grand father of the plaintiff. With the consent of the said Zinnat Ali plaintiffs mother Taklima Khatun constructed three-storied building in the suit land between 1969-1979 and the plaintiff with his father and mother has been residing therein. The said Zinnat Ali died leaving one widow, Hasimunnessa and two sons Jalal Uddin and Akkas Ali and thereafter Hasimunnessa died leaving the said two sons. The said Akkas Ali by registered kabala deed dated 13.12.1977 transferred his share in favour of Taklima Khatun (mother of the plaintiff) and on 12.3.1981 by a registered Hebanama Jalal Uddin transferred his share to his wife Taklima Khatun and in this way Taklima Khatun inherited the suit land and mutated her name and also paid government rent etc. Jalal Uddin died on 3.2.1992 and Taklima Khatun died on 18.12.1993 leaving her only son, the plaintiff and the plaintiff has been in possession of the suit land by inheritance. To grab the suit land, respondent created false loan case vide Loan Case No.HB-PAB-38(Multi) dated 25.11.1981 and started Miscellaneous Case No.43 of 1984 (H.B.) under the provision of President's Order No.27 of 1973 and on 26.6.1994 beyond the knowledge of the plaintiff petitioner obtained decree. Hence the title of the plaintiff petitioner in the suit land was clouded and hence the suit was filed.

3. The defendant-respondent contested the suit by filing written statement denying the material allegations made in the plaint to the effect that "বাদীর পিতা জালাল উদ্দিন খাঁ তাহার স্বত্ত দখলীয় ভুমির উপর ত্রিতল ইমারত নির্মানের অভিপ্রায়ে বাংলাদেশ হাউস বিল্ডিং ফাইনান্স করপোরেশন রিজিনাল অফিস পাবনায় ঋণের আবেদন করিলে মামলাটি পাব ৩৮ নং ঋন কেস মুলে ও রেজিস্ট্রিকৃত মর্টগেজ দলিল মুলে ৩,২৭০০০/- টাকা ঋন মঞ্জুর এবং উক্ত ঋণের টাকা দ্বারা জালাল উদ্দিন খাঁ জেলা ও থানা পাবনা মৌজা দক্ষিণ রাঘবপুর সি,এস, খতিয়ান ৪৭১,৪৭৬ এস,এ খং নং-৪২৪,৪২৭ সি,এস, ও এস,এ দাগ ২২৩,২২৪ জমির পরিমান .০৪১৯ ডেসিমেল ভুমির উপর একটি ত্রিতল বাড়ি নির্মান করেন। পরবর্তীকালে জালাল ঊদ্দিন খাঁ কিস্তি পরিশোধ করিতে ব্যর্থ হইলে বিজ্ঞ জেলা জজ আদালতে তাহার বিরুদ্ধে ঋণের সূদে আসলে ৩,৮৮,৪০৬/৭২ টাকা আদায়ের জন্য মিস ৪৩/৮৪ মোকদ্দমা দায়ের করা হয় ।"
It is further contended that the said case was allowed on 1.4.1987 and execution case being Decree Jari Case No.9 of 1988 was started which is now pending in the Artha Rin Adalat, Pabna, hence the suit is liable to be dismissed.

4. The plaintiff petitioner thereafter filed an application under Order 11, Rule 14 read with Section 151 of the Code of Civil Procedure for production of certain documents    mentioned in the written statement. The learned Joint District Judge, 1st Court, Faridpur, thereafter on hearing both the parties by order dated 10.3.1998 directed    the defendant respondent to produce the documents but the defendant respondent   failed to do so. Hence the plaintiff petitioner filed an application under Order 11, Rule 21 to strike out the defence of the defendant respondent which was allowed by order dated 10.8.2002 and 16.9.2002 was fixed for peremptory hearing. But the trial court suddenly by order dated 7.9.2003 dismissed the suit as not maintainable.

5. Being aggrieved and dissatisfied with the aforesaid order dated 7.9.2003 the plaintiff petitioner preferred Title Appeal No.256 of 2003 which was subsequently transferred to the First Court of Additional District Judge, Pabna who after hearing affirmed the order dated 7.9.2003 and dismissed the appeal. Thereafter being    dissatisfied with the aforesaid judgment and order the plaintiff petitioner moved the High Court Division in Civil Order No. 3796 of 2007. A Division Bench of the High Court Division after hearing rejected the application summarily by impugned judgment and order dated 2.3.2008.

6. In this backdrop, the petitioner filed civil petition for leave to appeal.

7. Mr. S.N. Goswami, the learned Advocate for the petitioner submits that the learned Judges of the High Court Division erred in law in not considering the facts and circumstances of the case that the trial court framed the issues on 18.9.1997 and subsequently the suit was posted for peremtory hearing but the suit was Suo Moto withdrawn from the peremtory hearing without giving effect to the applications under Order 11 Rule 14 and Order 11 Rule 21 of the Code of Civil Procedure filed by the plaintiff petitioner and also without considering the Order dated 10.8.2002 wherein it is noted “বিবাদী পক্ষ আদেশ থাকা স্বত্তেও কাগজ পত্র দাখিল করেন নাই। বাদী পক্ষ আইন মোতাবেক Benefit পাইবেন।" the learned Courts below committed error of law in passing the impugned judgment which is against the principle of natural justice and as such the same is liable to be set aside.

8. We have heard the learned Advocate for the petitioner and perused the connected papers including the impugned judgment. We do not find any substance in the points   raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.
Accordingly, the petition is dismissed.
Ed.

Saijuddin Molla Vs. Abdur Rahman and others, 1 LNJ (2012) 432

Case No: Civil Revision No. 1251 of 2010

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Syed Mahmudul Ahsan,,

Citation: 1 LNJ (2012) 432

Case Year: 2012

Appellant: Saijuddin Molla

Respondent: Abdur Rahman and others

Subject: Pre-emption,

Delivery Date: 2011-11-22

HIGH COURT DIVISION
(Civil Revisional Jurisdiction)

Sheikh Abdul Awal, J.

Judgment
22.11.2011

Saijuddin Molla

...Petitioner.

Vs.

Abdur Rahman and others.

...Opposite parties

State Acquisition and Tanency Act (XXVIII of 1951)
Section 96
During the pendency of the pre-emption case the vendor (full brother of the pre-emptor) Jonab Ali died but the pre-emptor did not implead the heirs of Jonab Ali and full brother of pre-emptor named Anwar transferred his share but the pre-emptor did not implead the transferee in the said application is a serious defect of party since impleading of a co-sharer whether by inheritance or by purchase is a mandatory provision of section 96 of the SAT Act. ...(15)

State Acquisition and Tenancy Act (XXVII of 1951)
Section 96 (10)
The pre-emptee purchaser was a first decree co-sharer in the tenancy who acquired interest in the tenancy by purchase along with 11 others including Koyed Ali, the father of the pre-emptor. Therefore, the transfer in question made to the petitioner is protected and immune from pre-emption as per provision of the sub section 10 of section 96 of the State Acquisition and Tenancy Act, 1950.

33 DLR (AD) 113; 31 DLR (AD) 89 and Ashini Kumar Karmakar being died his heirs Vs. Hari Mohan Shil and others, 4 BLD (AD) 27 ref.

Mr. Syed Mahmudul Ahsan, Advocate .

...For the petitioner.

Mr. Probir Halder with
Mr. Abul Kalam Azad, Advocates

...For the Opposite-Party No. 1.

Civil Revision No. 1251 of 2010

Judgment

Sheikh Abdul Awal, J.

        This Rule was issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and order dated 3.02.2010 passed by the learned Joint District Judge, 2^nd Court, Manikganj in Title Appeal No.06 of 2007 dismissing the appeal and affirming the judgment and order dated 22.01.2007 passed by the learned Senior Assistant Judge, Sadar, Manikganj in Pre-emption Miscellaneous Case No.21 of 2003 should not be set-aside.

2.     Relevant facts, in short, are that the opposite party as pre-emptor-applicant filed Miscellaneous (Pre-emption) Case No.21 of 2003 under section 96 of the State Acquisition and Tenancy Act in the Court of Senior Assistant Judge, Sadar, Manikganj for pre-empting the case land as described in the application stating that he was a co-sharer to the case jote by inheritance. His full brother transferred the land under pre-emption by a registered kabala dated 9.10.2001 to the petitioner-opposite party No.1, a sharer in the tenancy by purchase without serving any statutory notice upon him. The pre-emptor came to his village home in the first part of Baishakh, 1410 B.S. and knew about the impugned transfer and then after obtaining the certified copy of the impugned kabala the pre-emptor filed the case on 17.5.2003 within 4(four) months from the date of his knowledge.

3.     The opposite party-petitioner resisted the case by filing written objection stating that the pre-emption application is not maintainable in its present form and manner mainly on 3(three) counts that; (i) the pre-emption case is hopelessly barred by law of limitation inasmuch as the pre-emptor had the knowledge of the sale from the very beginning of the sale, (ii) the pre-emption case is barred by principle of estoppels, waiver and acquiescence and (iii) the case is also bad for defect of parties inasmuch as some of the co-sharers being the heirs of Jonab Ali and Abdul Latif were not made parties in the pre-emption case.

4.     The learned Senior Assistant Judge, Sadar, Manikganj on consideration of the evidence on record allowed the pre-emption   believing the date of knowledge of sale in question as claimed by the pre-emptor.

5.     On appeal, Miscellaneous Appeal No.6 of 2007, the learned Joint District Judge, Manikganj by the impugned judgment and order dated 3.02.2010 dismissed the appeal and affirmed the decision of the trial Court below.

6.     Being aggrieved by the aforesaid judgment and order the present opposite party-appellant-petitioner (Vendee) moved this Court and obtained the present Rule.

7.     Mr. Syed Mahmudul Ahsan, the learned Advocate appearing for the petitioner after placing the judgment of two Courts below and the deposition of PWs. and Opws. submits that judgments of both the Courts below are based on misreading and non consideration of the material evidence on record and as such, the same are liable to be set-aside. He next submits that both the Courts below committed wrong in not holding that the case was bad for defect of parties inasmuch as admittedly during pendency of the pre-emption case the vendor Jonab Ali died on 11.7.2004 but the pre-emptor-opposite party No.1 did not implead the heirs of deceased-opposite party No.2.

8.     Mr. Mahmudul Ahsan further upon referring to the material portion of the pre-emption application submits that admittedly the pre-emptor and pre-emptee-seller   are full brother and both of them became co-sharer to the case jote by inheritance, both of them possessed thereon and as such, it cannot be said that the pre-emptor-opposite party was totally unaware about the impugned kabala over a period of 1(one) year and 6 months. The learned Advocate finally submits that the proposition of law is by now well settled that a heavy burden lies on the pre-emptor to discharge the onus of proof that he filed the case within the statutory period of 4(four) months from the date of knowledge but in this case the pre-emptor having failed to discharge the onus of proof that she filed the case within 4(four) months from the date of his knowledge by adducing cogent and reliable evidence and as such the judgment of two Courts below are liable to be set aside.

9.     Mr. Probir Halder, the learned Advocate appearing for the opposite party No.1, on the other hand, supports the impugned judgments of two Courts below which were according to him just, correct and proper. He submits that the pre-emption should not be refused on the sole ground of non-joinder of all the co-sharers. Mr. Halder, to fortify his submission has relied on the decisions reported in 33 DLR(AD) 113 and 31 DLR(AD) 89.

10.    I have heard the learned Advocates for both the sides and perused the Revisional application, judgments of two Courts below, deposition of witnesses and other materials on record as filed thereto. Now, let me consider first the vital and material question whether the application for pre-emption was barred by limitation. In the present case, certified copy of the impugned kabala shows that the kabala was registered on 9.10.2001 as per provision of section 60 of the Registration Actand the present case was filed long lapse of the stipulated lime of limitation on 17.05.2003.

11.    During trial 4 witnesses were examined by the pre-emptor-opposite party No. 1 and 3 witnesses were examined by the pre-emptee petitioner. Pre-emptor-opposite party himself was examined as PW-1, who stated in his deposition that he came to know about the impugned transfer on 5^th Baishak, 1310 B.S. and then after obtaining    certified copy of the impugned kabala dated 9.10.2001 became aware that pre-emptee opposite party No. 1 purchased the case land from his elder brother. This witness in his deposition stated that: আনোয়ার বিক্রয় করেছে লতিফের কাছে। ঐটায় pre-emption করি নাই।

12.    PW-2, PW-3 and PW-4 in their respective deposition disclosed nothing with regard to the date of knowledge of the transfer of the land under pre-emption of the pre-emptor-opposite party No. 1. Moreover, all of them stated in their respective deposition that the pre-emptee petitioner has been possessing the case land. OPW-1, Saijuddin Mollah stated in his deposition that: বেচা বিক্রীর কথা আঃ রহমান জানতো। This witness also stated that he became co-sharer in the tenancy by purchase along with 11 others including the father of the pre-emptor, Abdur Rahman. OPW-2, Monwara Begum, wife of Jonab Ali (vendor) in her deposition stated that the pre-emptor Abdur Rahman is her husband's brother. This witness also stated that the land in question was transferred within the full knowledge of the pre-emptor, Abdur Rahman.

13.    It appears that the pre-emptor Abdur Rahman claims to have knowledge of the transfer of the land more than one year after the transfer but he offered no reasonable explanation for such a late knowledge of the transfer living in the same mess with the vendor ( full brother of the pre-emptor) and other brothers. As I have already noticed that in this case the application for pre-emption was filed more than 1 year and 7 months after the transfer in question and thus, a heavy burden lies on the pre-emptor to discharge the onus of proof that he filed the case within the statutory period of 4(four) months from the date of knowledge.

14.    On a careful consideration of the evidence of PWs. and OPWs. it appears that pre-emptor having failed to prove the date of knowledge of the transfer by adducing cogent and reliable evidence and the trial Court as well as the Court of appeal below wrongly arrived at a finding that the application for pre-emption was not barred by limitation. There being a total non consideration of all the witnesses, the learned judges of both the Courts below acted wrongly in not holding that the pre-emption was barred by limitation.

15.    Another bone of contention raised in this Revision centers round the finding of the Court of appeal below as to whether it has rightly arrived at a finding that the suit was not bad for defect of party. Admittedly, during the pendency of the pre-emption case the vendor (full brother of the pre-emptor) Jonab Ali died on 11.7.2004 and the pre-emptor did not implead the name of the heirs of Jonab Ali in the case. It is also found that full brother of the pre-emptor named Anwar transferred his share to one Abdul Latif but the pre-emptor did not make him party to the pre-emption proceeding and such failure of the pre-emptor   to implead them in the application for pre-emption is a serious defect of party since impleading of a co-sharer, whether by inheritance or by purchase, is a mandatory provision of section 96 of the State Acquisition and Tenancy Act.

16.    In this connection, I must quote a passage from the case of Ashini Kumar Karmakar being dead his heirs Vs. Hari Mohan Shil and others reported in 4 BLD(AD) 27 which reads as follows:

"It will thus appear that Sayera Khatun being found to be a co-sharer she was a necessary party in the pre-emption proceeding and the failure to make her party to the pre-emption proceeding has vitiated the pre-emption case. The mere fact that the respondent did not disclose her name does not absolve the appellant-pre-emptors from his mandatory duty to implead her by ascertaining necessary particulars. Because the pre-emptors could not be oblivious as to Ext.B(2) the kabala dated 2.6.73 by which Sayera Khatun purchased 1.40 acres of land out of the disputed tenancy and ought to have made her a party."

17.    In the given facts and circumstances of the case and the decision of the highest Court as cited above, I have no hesitation to hold that the pre-emption case was bad for defect of party.

18.    There is another aspect of law. On scrutiny of the evidence and materials on record, it appears that the opposite party-petitioner (vendee) along with 11 others including Koyed Ali, the father of the pre-emptor Abdur Rahman had become co-sharers in the tenancy by a registered kabala deed dated 13.5.1974. Koyed Ali died living behind 3 sons and 2 daughters and on his death his sons and daughters inherited the share of Koyed Ali. Thereafter, the elder son of Koyed Ali , pre-emptee–opposite party No. 2 sold his share to the pre-emptee petitioner by executing a registered kabala dated 9.10.2001 and, the pre-emptor opposite party, younger brother of the vendor filed the case for pre-emption on 17.05.2003 stating that his elder brother without serving any notice transferred the case land to the pre-emptee- Saijuddin Mollah who is a co-sharer by purchase and the pre-emptor is a co-sharer by inheritance and as such, he is entitled to get the land under pre-emption. Pre-emptee-purchaser himself was examined as OPW-1, who in his deposition stated that: এই জমির মালিক ছিল আঃ হালিম। বিগত ইং ১৩/৫/৭৪ ইংরেজীতে আমারে সহ মোট ১২ জনের কাছে ১|৫২ ডিং বিক্রয় করে। আর, এস, রেকর্ড আমাদের ১২ জনের নামে হয়েছে। আঃ রহমানের বাবার নাম কয়েদ আলী সিকদার। সেও এই ১২ জনের একজন। ইমান আলীর অংশ আমি কিনেছি। নাঃ খতিয়ানের জমি আঃ রহমান পায় নাই। তাহার ২ ভাই জনাব আলী ও আনওয়ার পায়। আনওয়ারের অংশ লতিফের নিকট বিক্রয় করে। আমার কাছে বিক্রয় করে জনাব আলী।

19.    Both the Courts below held that the pre-emptor is entitled to pre-empt the land inasmuch as opposite party No.2 without serving any notice upon the pre-emptor transferred the case land to the pre-emptee opposite party No. 1, who is a co-sharer by purchase and the pre-emptor is a co-sharer by inheritance.

20.    Provisions for pre-emption under section 96 of the State Acquisition and Tenancy Act are not applicable "to a transfer to a co-sharer" whose interest in the tenancy has accrued by inheritance or otherwise than by purchase. This provision is clearly stated in clause (a) of sub-section (10) of section 96. This sub-section is quoted below:

(10) Noting in this section shall apply to –
(a) a transfer to a co-sharer in the tenancy whose interest has accrued otherwise than by purchase;

21.    In this case, the pre-emptor claims to be a co-sharer by inheritance because he inherited the share, in the tenancy of their father named Koyed Ali, who along with 11 others including the pre-emptee purchaser became co-sharers in the tenancy by purchase from one of the original co-sharer and that on his death his share developed upon his sons and daughters. So, in the facts and circumstance of the case, the pre-emptee purchaser was a first decree co-sharer in the tenancy who acquired interest in the tenancy by purchase along with 11 others including Koyed Ali, the father of the pre-emptor. Therefore, the transfer in question made to the petitioner is protected and immune from pre-emption as per provision of sub section 10 of section 96 of the State Acquisition and Tenancy Act, 1950.

22.    This important question did not receive due consideration from the judges of both the Courts below. Therefore, I am unable to accept the contention raised by Mr. Haldar that both the Courts below committed no wrong in allowing the pre-emption.

23.    For the reasons stated above, I am inclined to hold that both the Courts below seriously erred in law in passing the impugned judgments without properly applying its judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.

24.    In the result, the Rule succeeds. The impugned judgment and order dated 3.02.2010 passed by the learned Joint District Judge, 2nd Court, Manikganj in Title Appeal No.06 of 2007 dismissing the appeal and affirming the judgment and order dated 22.01.2007 passed by the learned Senior Assistant Judge, Sadar, Manikganj in Pre-emption Miscellaneous Case No. 21 of 2003 is set-aside.

        Let a copy of this judgment along with lower Court's record be sent down at once.

Ed.

Saimuddin (Md) Vs. Amjad Ali and others

Case No: Civil Petition for Leave to Appeal No. 632 of 2005

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Enayatur Rahim,Mostafa Niaz Mohammad,,

Citation: 13 BLC (AD) (2008) 40

Case Year: 2008

Appellant: Saimuddin (Md)

Respondent: Amjad Ali and others

Subject: Property Law,

Delivery Date: 2007-04-24

Saimuddin (Md) Vs. Amjad Ali and others
13 BLC (AD) (2008) 40

Supreme Court
Appellate Division
(Civil)

Present:
Md. Fazlul Karim J
Amirul Kabir Chowdhury J

Saimuddin (Md).............................Petitioner
Vs.
Amjad Ali and others.........................Respondents

Judgment
April 24, 2007.

Court Fees Act (VII of 1870)
Section 8 (c)

In view of the persistent contention of the learned Advocate as to the necessity of revaluation of the suit property, we are of the view that the trial Court shall be at liberty to consider the matter of valuation of the suit property at the time of trial of the suit and shall pass necessary orders as deemed fit according to law as to payment of Court fees, if any, by the plaintiff. …. (12)

Lawyers Involved:
Mostafa Niaz Mohammad, Senior Advocate instructed by Sufia Khatun, Advocate-on-Record—For the Petitioner.
ASM Khaliquzzaman, Advocate-on-Record—For Respondent Nos. 1-6.
Enayatur Rahim, Advocate instructed by AKM Shahidul Huq— For the Respondents.

Civil Petition for Leave to Appeal No. 632 of 2005.
(From the judgment and order dated 27-7-2004 passed by the High Court Division in Civil Revision No. 5411 of 2003).

Judgment

Amirul Kabir Chowdhury J. - Defendant petitioner Md Saimuddin seeks leave to appeal against the judgment and order dated 27-7-2004 passed by a Single Bench of the High Court Division in Civil Revision No. 5411 of 2003 discharging the rule.

2. The respondent Nos.1 to 216 as plaintiffs instituted Other Class Suit No.418 of 1978 (renumbered as Other Class Suit No. 60 of 1993) for declaration of title and recovery of khas possession in the suit property stating, inter alia, that the suit properties were granted permanent lease in 1327 BS at annual rent of Taka 66/4/0 by ex-landlords Sree Provash Chandra Basak and others in favour of Nayebuddin Sarker and others and that Nayebuddin Sarker and others executed kabuliyat to the effect on 1-12-1920 and that Majaruddin, one of the lessees, sold share in the suit property by registered deed of sale dated 15-11-1943 to the defendant Nos. 38-40 and that Jafuruddin sold share on 30-10-1959 to one Kasaruddin Mondal and some other lessees also transferred lands from their share to various purchasers and the plaintiffs purchased the suit properties and are in possession of the same.

3. It was further averred that the rent rolls were prepared in the names of the plaintiffs but subsequently, it was wrongly prepared in the names of the heirs of the ex-landlords, the defendant Nos.3-10, but the plaintiffs paid rents and the records of right so prepared are wrong and without any foundation.

4. It was further stated that on 15-6-1976 while the plaintiffs offered rent to the tahshilder then it was detected that the names of the plaintiffs had been cancelled from the SA record and it stood recorded in the names of the defendant Nos. 3 to 10.The plaintiffs stated further that the defendant Nos. 15/34/21 constructed houses in the suit property. The plaintiffs therefore, felt constrained to institute the suit.

5. The defendants Nos.1, 2, 11-41 contested the suit by filing written statement. It was asserted that the defendant Nos. 11-14 took lease of the suit properties from the government and are in possession of the suit property.

6. During pendency of the suit the defendants filed an application for revaluation of the suit property on the averment that the suit land is more than 106 bighas but the suit has been valued at Taka 70,760 whereas the valuation of the suit property would be more than Taka 10,00,000 (ten lac) and that the jurisdiction of the Court of Joint District Judge, where the suit was pending, was also questioned praying for transferring the suit to the Court of the learned Assistant Judge of competent jurisdiction. The learned Joint District Judge before whom the suit was pending by order dated 25-8-2003 rejected the application.

7. The defendant-petitioners moved the High Court Division under section 115(1) of the Code of Civil Procedure in Civil Revision No.5411 of 2003 and a learned Single Judge of the High Court Division by the impugned judgment and order discharged the Rule.

8. Hence is this petition.

9. In support of the petition Mr. Mostafa Niaz Mohammad, learned Counsel, submits inter alia, that the High Court Division committed error in the decision in discharging the Rule thereby affirming the order of the Joint District Judge who rejected the application of the petitioners raising objection as to the valuation of the suit property. Moreso, according to the learned Advocate, the learned Joint District Judge passed the said order without holding any enquiry under section 8(C) of the Court-Fees Act.

10. Mr. Enayatur Rahim, learned Advocate, opposed the petition.

11. We have considered the submissions and perused the materials on record.

12. In view of the persistent contention of the learned Advocate as to the necessity of revaluation of the suit property, we are of the view that the trial Court shall be at liberty to consider the matter of valuation of the suit property at the time of trial of the suit and shall pass necessary orders as deemed fit according to law as to payment of Court fees, if any, by the plaintiff.
With the above observation, this petition is disposed of.
Ed

Salahuddin and others Vs. Government of Bangladesh and others 2016 (2) LNJ 42

Case No: Writ Petition No. 12605 of 2012

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Mr. Ahsanul Karim,Mr. Khalequzzaman,Mr. Kabir Iqbal Hossain,,

Citation: 2016 (2) LNJ 42

Case Year: 2016

Appellant: Salahuddin and others

Respondent: Government of Bangladesh and others

Subject: Artha Rin,

Delivery Date: 2015-05-31

Salahuddin and others Vs. Government of Bangladesh and others 2016 (2) LNJ 42

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Md. Emdadul Huq, J
And
Muhammad Khurshid Alam Sarkar, J
Judgment on
31.05.2015

}
}
}
}
}

Salahuddin and others
. . . Petitioners
-Versus-
Government of Bangladesh and others
. . . Respondents

Artha Rin Adalat Ain (VIII of 2003)
Section 33
Computation of 15 days in between the date of publication of auction notice and the date of holding the auction-From a plain reading of the provisions of Section 33(1) of the Ain, 2003, it is crystal clear that there should be a gap of 15 (fifteen) days’ time between the date of publication of the auction notice and the date of holding the auction. Since the above provision does not provide any consequence for non-compliance of the time-frame, its deviation is not to be considered to be too fatal to vitiate an execution process. All that the law contemplated is that there should be sufficient publicity of the proposed auction so that the maximum number of bidders could be invited for attending the auction. As per the dictum laid down in the case of Md. Rafiqul Islam Faruq Vs Bangladesh VIII ADC 439 that the date of publication of the notice as well as the date of holding the auction, both are to be included in computation of the 15 (fifteen) days’ time-frame.             . . .(16)
Artha Rin Adalat Ain (VIII of 2003)
Sections 15, 33(1) and 48
The language employed in Section 48 of the Ain, 2003, ‘for computation of the days under this law’ (এই আইনের অধীন দিবস গণনার ক্ষেএে) and thereby generalising the method of counting the time-frame with reference to the judges’ working days does not fit in the functional aspect of the trial of a case which requires compliance by others also e.g. process server, nazarate, parties etc. If the ratio of the case of Md Rafiqul Islam Faruq Vs Government of Bangladesh reported in VIII ADC 439 is read in conjunction with the ratio laid down in the case of Peninsular Shipping Service Vs. Faruq paints 59 DLR (AD) 26, the inevitable conclusion at which anyone is led to arrive is that 15 (fifteen) days time, as provided in Section 33(1) of the Ain, 2003 means only 15 (fifteen) days, as opposed to 15 (working) days.                      . . . (21-23)

Artha Rin Adalat Ain (VIII of 2003)
Section 41
The petitioners approached this Court by filing the instant writ petition, instead of preferring appeal. Their such move appears to us to be a tactic with an ulterior motive of avoiding the requirement of making 50% deposit of the decretal amount coupled with their intention of dragging this case for whatever the period it might take for disposal of this writ petition. Thus, we find that after pronouncement of the judgment and decree on 23.02.2011 by the Adalat in Artha Rin Case no. 119 of 2010, invocation of the writ jurisdiction by the petitioners by circumventing the statutory route of appeal is a mere device to dilly-dally the process of execution in an attempt to frustrate the Ain, 2003.               . . . (27)
Artha Rin Adalat Ain (VIII of 2003)
Section 57
This case appears to be a fit case for slapping costs upon the petitioner given the manner and style of handling this case by the loanee and these three petitioners, who are persistently trying to delay the disposal of the execution case by abusing the process of the Court. In the result, the Rule is discharged with a cost of Taka 10,000/- (Ten Thousand) to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days.                        . . . (40 and 41)
Md. Rafiqul Islam Faruq Vs. Bangladesh, VIII ADC 439; Peninsular Shipping Service Vs. Faruq Paint, 59 DLR (AD) 26; Sonali Bank Ltd. Vs. Asha Tex International, 20 BLC 185; M/S International Trade Promoters Vs. Artharin Adalat, 17 BLT (AD) 306; Harun-or-Rashid (Md) Vs. Pubali Bank Ltd., 12 MLR (AD) 343; Hosne Ara Begum Vs. Islami Bank Bangladesh Ltd., 5 MLR (AD) 290; Islami Bank Bangladesh Ltd., 5 MLR (AD) 191 and Concord Pragatee Consortium Ltd., Vs. BPDB, 66 DLR 475 ref.

Writ Petition No. 12605 of 2012

Mr. Khalequzzaman Masud, Advocate
. . . For the petitioners
Mr. Ahsanul Karim with
Mr. Kabir Iqbal Hossain, Advocates
....For respondent No. 3

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:
By filing an application under Article 102 of the Constitution, the writ petitioners sought to challenge the legality and propriety of the order no. 14 dated 18.09.2012 passed by the learned Judge of the Third Artha Rin Adalat, Dhaka (hereinafter referred to as ‘the Adalat’) accepting the offer of respondent no. 7 as the highest bidder for the mortgaged property in Artha Jari Case no. 234 of 2011 arising out of Artha Rin Case no. 119 of 2010.

Briefly, the facts of the case, as stated in this writ petition, are that, the proprietor of M/s. Dhaka Pharmacy Limited, Md. Sharif (hereinafter referred to as respondent no. 6 or ‘the loanee’) availed a loan of Tk. 15,00,000/- (fifteen lac) from the IFIC Bank Limited (hereinafter referred to as ‘the IFIC Bank’) upon mortgaging a property, which is owned by these three writ petitioners and sold in the auction in question. On failure of the loanee to repay the said loan, the IFIC Bank instituted Artha Rin suit no. 119 of 2010 in the Adalat on 30.06.2010 against these three writ petitioners together with respondent nos. 4-6 for realization of the said loan and, eventually, an exparte judgment and decree was passed on 23.02.2011 for an amount of Tk. 16,44,707.54 along with specified interest to be paid till the period of realization of the decretal amount. Thereafter, on 03.08.2011 the decree-holder (the IFIC Bank) filed Artha Jari Case no. 234 of 2011and an auction notice was published on 04.09.2012 in the Daily Protham Alo fixing 18.09.2012 for auction of the property. On 21.08.2011, the loanee filed an application with a prayer to allow three months time to adjust the decretal amount, but it was rejected by the Adalat. The auction was held on the said scheduled date and respondent no. 7 became the highest bidder with an offer of 61,00,000/- (sixty one lac) Taka and the Adalat accepted the same. Thereafter, on 24.09.2012 the present petitioners filed an application before the Adalat for withholding the auction process with a prayer to grant an opportunity to sell the property by themselves towards payment of the decretal amount, instead of selling out the mortgaged property through auction. On the same date the loanee also filed an application with a prayer to set aside the auction and allow one year time to adjust the decretal amount. However, the Adalat upon consideration of the statements and prayers of both the applications, rejected the same, against which the petitioner moved before this Court and obtained the instant Rule.
The IFIC Bank, which has been impleaded as respondent no. 3 in this case, contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that on 03.08.2011the execution case was commenced by serving notices upon the loanee, the guarantor (loanee’s wife) and the petitioners (mortgagors) and, thereafter, on 21.08.2011 the loanee and his wife appeared before the Adalat with a prayer for 3 (three) months’ time in order to allow them to settle the claim amicably when the application was rejected. Thereafter, the loanee and the mortgagors did not take any step to pay the decretal amount, nor did they communicate with the bank and, eventually, the bank proceeded with the auction and, finally, the auction was held after nearly one year on 18.09.2012. It is contended that no illegality was committed in the execution process.
Mr. Md. Khalequezzaman Masud, the learned Advocate appearing for the petitioner, places before us Section 33(1) of the Artha Rin Adalat Ain, 2003 (hereinafter referred to as ‘the Ain, 2003’) and submits that the Adalat committed serious illegality by not complying with the said provisions in proceeding with the execution case inasmuch as the auction notice was published on 04.09.2012 and the auction was held on 18.09.2012 and, accordingly, it is his submission that the mandatory provisions of the Ain, 2003, as to giving at least 15 days’ time in between the date of publication of the auction notice and the date of auction sale, has been contravened. In an endeavour to reinforce his submission on this point, the learned Advocate places Section 48 of the Ain, 2003 before us and submits that in computing the 15 days’ time under the provisions of Section 33(1) of the Ain, 2003, only the working days shall be counted and he, accordingly, argues that since it is evident that the date of publication of the auction notice is 04.09.2012 and the date of holding the auction was 18.09.2012, if two weekly holidays of 4 (four) days are deducted, in no way it becomes 15 (fifteen) days. He next submits that the property was sold at a shockingly low price at an amount of Tk. 61,00,000/- (sixty one lacs) as he claims that the market price of the property is Tk.1.80 crore.
On the issue of maintainability of this writ petition, the learned Advocate for the petitioner places before us the case of M/s. International Trade Promotors Vs. Artha Rin Adalat no. 1, Dhaka & others, 17 BLT (AD) 306; Harun-or-Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Islami Bank Bangladesh Limited Vs. Alhaj Md. Shafiuddin Howlader and another reported in 5 MLR (AD) 191, and the case of Hosne Ara Begum and another Vs Islami Bank Bangladesh Ltd, 5 MLR (AD) 290 and submits that since the order is ex-facie illegal, this Court is well empowered to entertain the present writ petition. On the point of maintainability of this writ petition, his concluding submission is that since the petitioners’ property is being taken away in breach of the provisions of law, the petitioners are competent to approach this Court to enforce their fundamental rights.
By making the aforesaid submissions, the learned Advocate for the petitioners prays for making the Rule absolute.
Per contra, Mr. Ahasanul Karim, the learned Advocate appearing on behalf of the IFIC Bank, takes us through the order sheet of the Artha Jari Case no. 234 of 2011 and by specifically pin-pointing the order no. 02 dated 21.08.2011 in tandem with order no. 14 dated 18.09.2012 submits that the loanee and his wife appeared before the Adalat on 21.08.2011 and prayed for 3 months time for allowing them to pay the decretal amount and, thereafter, the auction was held on 18.09.2012 after allowing the loanee nearly one year, which is more than the time they had sought for arranging the sale of the mortgaged property privately. In elaborating his submission on this issue, he argues that within the aforesaid one year time, the loanee as well as the petitioners had the opportunity to settle the claim with the bank amicably, but they did not take any step towards settling the claim.
With regard to the contention that the auction was held before completion of 15 working days as provided in Section 33(1) of the Ain, 2003, Mr. Karim refers to the case of Md. Rafiqul Islam Faruq Vs. Government of Bangladesh VIII ADC 439 and submits that the date of publication of auction notice on 04.09.2012 as well as the date of holding the auction are to be included within the said 15 (fifteen) days period of limitation, as stipulated in Section 33(1) of the Ain, 2003 and, thus, there was no deviation or contravention of any provisions of law.
Regarding the petitioner side’s submission that the statutory period of 15 days should be counted upon excluding the weekly holidays and only the working days are to be computed, Mr. Karim refers to the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26 and submits that provisions of Section 48 are applicable only for the purpose of counting the days in connection with trial of Artha Rin Cases, and not with execution cases.
As to the issue of maintainability of the present writ petition, Mr. Karim refers to a recent decision of a Division Bench of the High Court Division namely Sonali Bank Limited Vs Asha Tex International 20 BLC 185 and submits that all the post-decree stage orders are to be challenged by way of appeal by depositing 50% of the decretal amount, otherwise the provisions of the Ain, 2003 as a special law will be frustrated. The petitioners’ motive, he continues to submit, of dilly-dallying the execution process is clearly demonstrated and manifested from invocation of the writ jurisdiction purposefully and, also, from their conduct that after obtaining the stay order from this Court, they opted to kill further time.
In concluding his deliberations, he submits that grievance of the petitioners as to non-compliance of the provisions of Section 33(1) of the Ain is a mere device to halt the process of execution case. He submits that had this question been brought to the notice of the Adalat, the Bank might have agreed to call for a fresh auction and, thereby, proceeded towards an early disposal of the execution case. He frankly submits that all that the Bank expects is that the Artha Jari Case should be disposed of at the earliest possible time, either by making the present Rule absolute or by asking the Adalat for arranging fresh auction.
The added respondent no. 7 is the highest bidder and filed a Vokalatnama, but thereafter abstained from appearing before this Court. It is to be noted here that the petitioners, by filing a supplementary-affidavit, have alleged that the highest bidder is an Advocate by profession and is a practitioner of the concerned Artharin Adalat no. 3, Dhaka and, as an officer of the Court, he was not eligible to participate in the auction in question.
In adjudication of this case, we have allowed both the sides to make their submissions at length and, side by side, we have also perused the writ petition together with its annexures, affidavit-in-opposition and gone through the relevant laws and decisions placed before us very minutely.
It appears that the core issues to be adjudicated upon by this Court are whether the Adalat has committed any illegality in selling out the mortgaged property by auction in the backdrop of the petitioners’ prayer for withholding the said auction, and also the issue of maintainability of the present writ petition, as raised by the learned Advocate for respondent no. 3.
It is an admitted position that the auction notice was published on 03.08.2011 and the auction was held on 21.08.2011. It is the case of the petitioners that if the days are computed from the date of publication of the auction notice, from a simple calculation of the days, any one with ordinary prudence would come to a conclusion that only 13 days time has been given for selling the property on auction. In order to deal with the point, we should look at the provision of Section 33(1) of the Ain, 2003 which runs as follows:

“৩৩z (১) অর্থ ঋণ আদালত ডিএ্রী বা আদেশ জারীর সময় কোন সম্পওি বিএ্রয়ের ক্ষেএে বাদীর খরচে বিজ্ঞপ্তি প্রচারের তারিখ হইতে অন্যূন ১৫ (পনের) দিবসের সময় দিয়া সীলমোহরকৃত টেন্ডার আহবান করিবে, উও্র বিজ্ঞপ্তি কমপক্ষে বহুল প্রচারিত একটি বাংলা জাতীয় ~~দনিক পএিকায়, তদুপরি ন্যায় বিচারের স্বার্থে প্রয়োজন মনে করিলে Öহানীয় একটি পএিকায়, যদি থাকে, প্রকাশ করিবে; এবং আদালতের নোটিশ বোর্ডে লটকাইয়া ও Öহানীয় ভাবে ঢোল সহরত যোগেও উও্র বিজ·প্তি প্রচার করিবেz”

From a plain reading of the above provisions, it is crystal clear that there should be a gap of 15 (fifteen) days’ time between the date of publication of the auction notice and the date of holding the auction. Since the above provision does not provide any consequence for non-compliance of the time-frame, its deviation is not to be considered to be too fatal to vitiate an execution process. All that the law contemplated is that there should be sufficient publicity of the proposed auction so that the maximum number of bidders could be invited for attending the auction. However, by applying the dictum laid down in the case of Md. Rafiqul Islam Faruq Vs Bangladesh, VIII ADC 439 that the date of publication of the notice as well as the date of holding the auction, both are to be included in computation of the 15 (fifteen) days’ time-frame, the calculation of days comes to clear 15 (fifteen) days. Thus, we do not find any substance in the submission of the learned Advocate for the petitioner that the provisions of Section 33(1) of the Ain, 2003 have been infringed.
Now, let us deal with the other count of submissions of the petitioners’ Advocate with reference to the provisions of Section 48 of the Ain, 2003, which according to him, requires 19 days time to be allowed by the Adalat, because another 4 days should be added with this 15 days by virtue of two weekly holidays for each week. For this, it would be profitable to look at the provisions of Section 48 of the Ain, 2003 which is reproduced below:

“৪৮z এই আইনের অধীন দিবস গণনার ক্ষেÎ ‡KejgvÎwePvi‡Ki Kvh©w`em MYbv Kiv nB‡e Ges mvgwqKfv‡e `vwqZ¡cÖvß wePvi‡Ki Kvh© w`emI Aনুiƒপ গণনার অ¿¹র্ভূও্র হইবেz (underlined by us)”

The above provisions usher a paradoxical proposition. Although it contains the words “এই আইনের অধীন দিবস গণনার ক্ষেÎ”; meaning in computation of the time under the provisions of this law, the expressions, “কেবলমাÎ বিচারকের কার্যদিবস গণনা করা হইবে এবং সাময়িকভাবে দায়িত্বপ্রাপ্ত বিচারকের কার্য দিবসও অbyiƒc MYbvi Aš—©f~³ nB‡e” makes the mode of computation of the days complicated.
Upon skimming through the entire Ain, 2003, we find that most of the provisions containing the time-frame to be followed at various stages of the suit have got no nexus with the ‘working days of the judge’ (বিচারকের কার্য দিবস). For example the time period spelt out in Section 7 of the Ain, 2003 is regarding service of notices, the time-frame prescribed in Sections 10 & 11 of the said Ain, 2003 is with regard to submissions of the Written Statement or Additional Written Statement, Section 16 of the Ain, 2003 prescribes the time-frame for pronouncement of judgment, Section 19 of the said Ain, 2003 provides limitation of time for filing application for setting aside the exparte decree, Section 22(5) & (6) of the Ain, 2003 provides time-frame for dealing with mediation, time limitation for filing execution case is given in Section 28 of the said Ain, 2003, time limitation for service of notice of execution is prescribed in Section 30 of the same law, time limit provided in Section 32 of the Ain, 2003 is for raising objection against execution case by the third parties, time-frame for auction is outlined in Section 33 of the Ain, 2003, period of civil detention has been provided in Section 34 of the Ain, 2003, time limitation for preferring appeal is provided in Section 41 of the Ain, 2003. These provisions of time-frame under the Ain, 2003 are least connected with the working days of the judges, because in complying with those provisions the judge has very little to do except ensuring compliance by other functioneries.
Only the four provisions of the Ain, 2003, namely Sections 17, outlining the time frame for disposal of the Artharin Cases, Section 37, where time-frame is provided for disposal of Execution Cases, Section 41(6) which prescribes the time-frame for disposal of appeals and the time-frame for disposal of revision prescribed in Section 42(3) are directly connected with the working days of the judge (বিচারকের কার্যদিবস).
Therefore, the language employed in Section 48 of the Ain, 2003, ‘for computation of the days under this law’ (এই আইনের অধীন দিবস গণনার ক্ষেএে) and thereby generalising the method of counting the time-frame with reference to the judges’ working days does not fit in the functional aspect of the trial of a case which requires compliance by others also e.g. process server, nazarate, parties etc.
In the case of Peninsular Shipping Service Vs. Faruq Paint 59 DLR (AD) 26, the Apex Court, in an effort to make the said provisions of Section 48 of the Ain, 2003 workable, upon examining the provisions of the said Section 48 in detail propounded as follows:

“----the provision in Section 48 of the Ain, 2003 is limited only to count the time for disposal of cases having no connection whatsoever with the period prescribed for filing appeal, nay of making deposit as required under section 41 of the Ain. The position shall be more clear if we read sections 45 to 46, prescribing various period as to filing/disposal of case in the aforesaid separate chapter i.e. Chapter VIII. In view of what has been stated above, we are of the view that, acceptance of the argument of the respondents that Section 48 is applicable in case of filing the appeal shall lead to a dangerous effect telling upon the legal jurisprudence of the country and such a view is therefore unwarranted”.

Upon applying the ratio of the case of Md Rafiqul Islam Faruq Vs Government of Bangladesh reported in VIII ADC 439 in conjunction with the ratio laid down in the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26 in the present case, the inevitable conclusion at which we are led to arrive is that 15 (fifteen) days time, as provided in Section 33(1) of the Ain, 2003, was complied with and, thus, there is no illegality in the execution process of Artharin Jari Case no. 234 of 2011. Accordingly, we hold that the impugned order dated 18.09.2012 passed by Artha Rin Adalat is fundamentally consistent with the statutory requirement.
Now, the question that comes up for consideration is whether the petitioners were competent to invoke the forum under Article 102 of the Constitution in the backdrop of operation of the provisions of Section 41 of the Ain, 2003. In order to examine the said issue, let us look at the provisions of Section 41 of the Ain, 2003, which are reproduced below:

৪১z (১) মামলার কোন পক্ষ, কোন অর্থ ঋণ আদালতের আদেশ বা ডিএ্রী দ্বারা সংক্ষুন্ড হইলে, যদি ডিএ্রীকৃত টাকার পরিমান ৫০(পথ·াশ) লক্ষ ঢ~াকা অপেক্ষা অধিক হয়, তাহা হইলে উপ-ধারা (২) এর বিধান সাপেক্ষে, পরবর্তী ৬০ (ষাট) দিবসের মধ্যে হাইকোর্ট বিভাগে, এবং যদি ডিএ্রিকৃত টাকার পরিমান ৫০ (পথ·াশ) লক্ষ ঢ~াকা অথবা তদঅপেক্ষা কম হয়, তাহা হইলে পরবর্তী ৩০ (এিশ) দিবসের মধ্যে জেলা জজ আদালতে আপীল করিতে পারিবেনz
(২) আপীলকারী, ডিএ্রীত্র্রত টাকার পরিমাণের ৫০% এর সমপরিমান টাকা বাদীর দাবীর আংশিক স্বীকৃতিস্বর্রপ নগদ ডিএ্রীদার আর্থিক প্রতিষ্ঠিানে, অথবা বাদীর দাবী স্বীকার না করিলে, জামানত সর্রপ ডিএ্রী প্রদানকারী আদালতে জমা করিয়া উও্রর্রপ জমান প্রমাণ দরখাস¹ বা আপীলের মেমোর সহিত আদালতে দাখিল না করিলে, উপ-ধারা (১) এর অধীন কোন আপীল কার্যার্থে গৃহীত হইবে নাz

Section 41 of the Ain, 2003 in an unambiguous term provides that if any party to the Artharin Case is aggrieved by an order or decree (“মামলার কোন পক্ষ, কোন অর্থঋণ অাদালতের আদেশ বা ডিএ্রি দ্বারা সংক্ষুব্দ হইলে”), he may prefer an appeal upon depositing the 50% of the decretal amount.
Here in the case at hand, the petitioners have challenged the ‘order’ (Av‡`k) passed by the Adalat and, in line with the ratio laid down in the case of Sonali Bank Ltd Vs Asha Tex International 20 BLC 185, we hold that the impugned order being a post-decree one, the only path available for the petitioners is preferring an appeal before the competent Court. When a defendant of the Artharin suit wishes to challenge an order before pronouncement of the decree, he may be allowed to invoke the writ jurisdiction, for, he is unable to pay 50% of the decretal amount inasmuch as until a decree is drawn, he is not in a position to make an assessment of depositing the amount of 50% of the decretal amount. But after passing the decree, which is the fact in this case, an aggrieved defendant does not have any option other than preferring an appeal by depositing 50% of the decretal amount.
Here, the petitioners approached this Court by filing the instant writ petition, instead of preferring appeal. Their such move appears to us to be a tactic with an ulterior motive of avoiding the requirement of making 50% deposit of the decretal amount coupled with their intention of dragging this case for whatever the period it might take for disposal of this writ petition. Thus, we find that after pronouncement of the judgment and decree on 23.02.2011 by the Adalat in Artha Rin Case no. 119 of 2010, invocation of the writ jurisdiction by the petitioners by circumventing the statutory route of appeal is a mere device to dilly-dally the process of execution in an attempt to frustrate the Ain, 2003.
In the case at hand, the execution case was registered on 03.08.2011 and, thereafter, the notices were duly served upon the loanee and the other judgment-debtors namely, his wife, who is a party to the suit as the guarantor, and the present three petitioners as the mortgagors. Then, the loanee on 21.08.2011 appeared before the Adalat with a prayer for allowing him 3 (three) months time to enable him to settle the matter amicably. Although, the said prayer was rejected by the Adalat, the loanee and the petitioners had ample time in their hands to settle the matter with the bank in view of the fact that the auction was held on 18.09.2012, which is after a lapse of one year time from the date of the judgment-debtor’s prayer for giving an opportunity for amicable settlement. Thus, it is evident that the time, which was sought for by the loanee, initially for 3 (three) months and subsequently for one year, for amicable settlement towards adjustment of the decretal amount, has been enjoyed by the all the judgment-debtors, including these three petitioners, nevertheless, they failed to adjust the decretal amount. Although these 3 (three) petitioners have taken a plea that they were not aware of the auction notice, however, in the backdrop of the order recorded on 21.08.2011 by the Adalat that the notices were duly served upon all the parties, the plea taken by them appears to be implausible. Moreover, their appearance before the Adalat on 24.09.2012, being just after 5 (five) days of the holding of auction of the property on 18.09.2012, suggests that they had knowledge about the execution case and were in touch with the loanee who, after commencing the Execution Case, at first unsuccessfully sought for three months’ time and again on the 24.09.2012, concurrently with these three petitioners, prayed for one year time.
Even for the sake of argument, if it is considered that these 3 (three) petitioners were not aware of auction sale, however, after filing this writ petition on 01.03.2009 and upon obtaining an order of stay on the execution process, the petitioners could have taken necessary steps for adjustment of the decretal amount, but in the last more than 6 (six) years, they not only refrained from settlement of the claim with the IFIC Bank, they also did not bother to have this matter heard. Thus, from the conduct of these three petitioners, it is very much apparent that the only purpose of these three petitioners is to linger on the execution of the decree and thereby to abstain from making the payment towards the adjustment of the decretal amount.
The above conduct of the petitioners is further reflected at the hearing stage of this case. Order sheet shows that this matter was fixed at the instance of respondent no. 3, the IFIC Bank. When the matter was posted in the Cause List under the heading of “For Hearing” on consecutive days with the names of the learned Advocate for the petitioners, neither the petitioners nor their engaged Advocate appeared before this Court. It is only when the matter was taken up for passing the necessary orders due to non-appearance of the petitioners, the learned Advocate for these 3 (three) petitioners appeared before this Court and expressed their desire to conduct the hearing of this Rule and, accordingly, hearing took place.
The learned Advocate has referred to some case laws in support of his submission that an aggrieved party in a Artharin Case is well competent to invoke the writ jurisdiction. These cases are discussed below.
In the case of M/S International Trade Promoters Vs Artharin Adalat 17 BLT (AD) 306, the mortgagor approached the writ Court when the Adalat sold the mortgaged property being a 5 storied building on 5 (five) Kathas land, situated at Indira Road, Dhaka, at a shockingly low price of 35 lacs only, the High Court Division disposed of the writ petition with a direction upon the Adalat to review its own order on auction sale by setting aside the same towards holding a fresh auction and refund the auction purchaser’s money with a compensation of 12% interest to be paid by the petitioners. Challenging the aforesaid order of the High Court Division, the auction purchaser when moved the Appellate Division, the order of the High Court Division was upheld. In this cited case, none of the sides had raised the question of maintainability of the writ petition and, thus, there was no examination of the said issue therein. Moreover, the petitioners of this case did not make out a case of selling out their property at a shockingly low price.
In the case of Harun-or-Rashid (Md) Vs Pubali Bank Ltd 12 MLR (AD) 343, when the writ petitioner challenged an interlocutory order of the Adalat at pre-decree stage, the High Court Division summarily rejected the writ petition on the ground that since there is bar to prefer an appeal against an interlocutory order, only revision under Section 115 of the Civil Procedure Code (CPC) could be filed. The Apex Court held that since there is no forum before passing the decree, a party aggrieved by any pre-decree stage order of the Adalat is competent to invoke Article 102 of the Constitution. In the case in our hand, we have taken the same view that while writ is the proper forum against an interlocutory order passed at pre-decree-stage, however, an appeal must be preferred against any order passed by the Adalat at post-decree phase.
In the case of Hosne Ara Begum Vs Islami Bank Bangladesh Ltd 5 MLR (AD) 290 the question as to whether revision lies against an interlocutory order was settled by the Appellate Division in negative. In the said case, the date was fixed for judgment but the defendant wanted to recall the PW1 and the prayer was allowed fixing a date for further hearing.
In the case of Islami Bank Bangladesh Ltd 5 MLR (AD) 191, when the bank’s application for restoration of the suit under Order 9, rule 9 of the CPC was allowed, the defendant challenged the order in the High Court Division invoking its revisional jurisdiction under Section 115 of the CPC. In this cited case, no issue was raised as to the maintainability of the application filed by the Bank for restoration and, thus, the Apex Court, for ends of justice, held that the order of restoration of the suit by the Adalat is an equitable one. Thus, the ratio of this case is not inconsistent with our view, for, we are also disposing of the Rule for ends of justice by which no party to the suit would adversely be affected. In fact, had we been of the view that the writ petitioners shall have to prefer appeal, they had to encounter two hurdles namely, depositing of 50% of the decretal amount and, secondly, they are out of time to prefer an appeal.
From the above discussions on the afore-cited case laws referred to by the learned Advocate for the petitioners, it appears that the ratio laid down therein are not applicable in this case.
Adjudication of the instant Rule, however, would remain incomplete, if we become oblivious of the last count of submission of the learned Advocate for the petitioners on the maintainability issue. In a bid to fit in this writ petition within the purview of article 102 of the Constitution, it was submitted by the petitioners’ learned Advocate that since the petitioners are complaining before this Court as to violation of their fundamental right under Article 42 of the Constitution, the present writ petition is very much maintainable.
In this connection, this Court’s consistent view is that the said fundamental right is a qualified right, which may be enforced only subject to limitations imposed by laws. This point has been elaborately discussed and examined in the recent case of Concord Pragatee Consortium Ltd Vs BPDB 66 DLR 475. Since the Ain, 2003 empowers the bank to sell the mortgaged property for realization of their loan, the submission appears to us to be without any substance.
It leads us to hold that the present writ petition is not maintainable for bypassing the forum provided in a special statute, namely Artharin Adalat Ain, 2003. Thus, the instant Rule is liable to be discharged on maintainability ground as well.
This case appears to be a fit case for slapping costs upon the petitioner given the manner and style of handling this case by the loanee and these three petitioners, who are persistently trying to delay the disposal of the execution case by abusing the process of the Court, as discussed hereinbefore.
In the result, the Rule is discharged with a cost of Taka 10,000/- (Ten Thousand) to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days. The order of stay granted at the time of issuance of the Rule is hereby vacated.
The Artha Rin Adalat is directed to ensure the compliance of the above direction with regard to deposit of the above cost by the petitioner.
The Artha Rin Adalat shall dispose of the Artha Jari case in question expeditiously without allowing any undue adjournment.
Office is directed to communicate this order to Artharin Adalat, Dhaka, 3 at once.

The office is further directed to send a copy of this judgment and order to the Law Commission of Bangladesh for its perusal so as to let them consider whether in the provision of Sections 15 of the Ain, 2003, the following type of words “নিলাম নোটিশ প্রকাশের দিন এবং নিলাম অনুসঠানের দিন সহ পনের দিন” should be explicitly incorporated in the backdrop of judicial pronouncement by the Apex Court in the case of Peninsular Shipping Service Vs. Faruq paint 59 DLR (AD) 26 that in counting the 15 (fifteen) days’ time-frame, whether both the above-mentioned days are to be included and, also, to see whether the provisions of Section 48 of the said Ain, 2003 require to be expressed in a clearer manner.
Ed.

Saleh Ahmed Vs. Sreemati Rani Prava Mitra and others

Case No: Civil Petition for Leave to Appeal No. 1422 of 2009

Judge: A. B. M. Khairul Haque,

Court: Appellate Division ,,

Advocate: Mr. Md. Abdul Momen Chowdhury,Mr. Subrata Chowdhury,,

Citation: VII ADC (2010) 408

Case Year: 2010

Appellant: Saleh Ahmed

Respondent: Sreemati Rani Prava Mitra and others

Subject: Property Law,

Delivery Date: 2010-01-26

Saleh Ahmed Vs. Sreemati Rani Prava Mitra and others
VII ADC (2010) 408

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Abdul Matin J
ABM Khairul Haque J

Saleh Ahmed…………..................Petitioners
Vs.
Sreemati Rani Prava Mitra and others…………......Respondents

Judgment
January 26, 2010.

He out of fear of Mohajan transferred his property in favour of Moni Bala Dey, his relative and the sister-in-law of Jogendra by a registered kabala dated 19.03.1947 but as a matter of fact it was a mere sham transaction because Nolini did neither receive any consideration from Moni Bala nor delivered possession of the concerned land in her favour. After his death, his widow and son, while in possession of the suit land transferred the same to Rajib and his wife Sumoti Bala by a kabala registered on 27.10.1952 and also to Suraja Kumar by kabalas dated 24.10.1972 and 10.09.1974 and also duly delivered possession of the transferred land in their favour. The B.S. Khatian was also correctly prepared in the name of Surja Kumar and his wife Suniti Bala. After their death, the defendant No.2 became owner of the suit land. The admitted owner of the properties mentioned in schedule-II to the plaint was Jogendra Lal. He transferred 0.08 acre of land in R.S. Plot No.2319 in favour of the defendant No.1 by a kabala registered on 31.03.1967. After his death, his widow transferred the rest of the land in favour of the defendant No. 1 by a kabala registered on 16.07.1970. In this manner, the defendant No.1 became the owner of the entire suit land. Thereafter, he by a kabala registered on 24.10.1972, transferred the suit land to Surja Kumar, the father of the defendant No.2 and he is in possession of the same. … (5)

the kabalas executed registered by Nolini and Jogendra in favour of Moni Bala in 1947 were never acted upon and so also those in favour of the plaintiffs and they were never put into possession of the suit lands. Rather, found that the widow and the son of Nolini transferred the entire suit land in schedule-I in favour of Sumoti Bala and Rajib Kumar by 9 (nine) registered kabalas dated 24.10.1972 and 10.09.1974. The defendant No.1 also purchased 0.18 acres of land from Jogendra. The Trial Court also found on evidence that the defendants are in possession of the suit land. With these findings, the Trial Court dismissed the suit. … (6)

It appears that the plaintiffs and the defendant Nos.1 and 2 set-up competing claims of right, title and possession in the suit-lands. The Courts below approached the dispute, on the face of the title deeds produced on behalf of the defendant Nos.1 and 2 and the evidence in support of their claim of possession in the suit-lands, that the plaintiffs must prove their own case that the kabals in favour of Moni Bala were acted upon and they are in possession of the suit-lands based on those kabalas and on the basis of their own evidence. The Trial Court found that the plaintiffs failed to prove their claims on the suit-lands on preponderance of evidence. The Appellate Court, on reassessment of evidence, agreed with the findings of the Trial Court. In revision, the High Court Division also considered the contentions raised on behalf of the plaintiffs but justifiably agreed with the findings of the Appellate Court. …. (11)

Lawyers Involved:
Abdul Momen Chowdhury, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioner.
Subrata Chowdhury, Advocate, instructed by A. K. M. Shahirul Huq, Advocate-on-Record-For Respondent Nos.1 and 2.
Not represented- Respondent Nos. 3-9.

Civil Petition for Leave to Appeal No. 1422 of 2009.
(From the judgment and order dated 24.02.2008 passed by the High Court Division in Civil Revision No. 3629 of 2004)

Judgment

ABM Khairul Haque J. - This is a petition for leave to appeal with an application for condonation of delay in respect of the judgment and order dated 24.02.2008, passed by the High Court Division in Civil Revision No. 3629 of 2004, in discharging the Rule.

2. There is a delay of 14 (fourteen) days in filing this petition. The delay is condoned.

3. The facts leading to the filing of this petition, in brief, are that this petitioner filed a suit being the Partition Suit No.25 of 1999 in the Court of Joint District Judge, Patiya, against the respondent Nos.1 to 8, praying for a decree for partition of the property mentioned in the schedule to the plaint.

4. The case of the plaintiff, in brief, are that admittedly the land described in schedule-I to the plaint belonged to Nolini Kumar Dey and the land described in Schedule-II belonged to Jogendra Lal in raiyati right. Nolini sold the lands described in schedule-I to Moni Bala Dey by a kabala dated 20.06.1947 while Jogendra Lal sold in total 0.09 acres of land to Moni Baloa by another registered kabala dated 22.05.1947. Jogendra Lal sold the remaining 0.08 acres of land to Rani Bala, the defendant No.1. Moni Bala being the owner of the said 0.09 acres of land by purchase and in possession, transferred the same in favour of the plaintiff by a registered kabala dated 04.02.1970 and also delivered possession in her favour. In late 1988, she went to the land to erect a house thereon but the son of the defendant No.1 disclosed that the name of his parents had been recorded in the B.S. Khatain. Since the plaintiff and the defendant Nos.1 and 2 are in ejmali possession of the suit land she requested them to partition the property by meats and bounds but without any response, as such, was constrained to file the suit on 27.05.1999. The present petitioner, however, was added as the plaintiff No.2 by an order dated 26.06.2001.

5. The suit was contested by the defendant Nos.1 and 2 by filing a written statement, contending, inter alia, that the admitted owner of the properties described in schedule-I to the plaint was Nolini. He out of fear of Mohajan transferred his property in favour of Moni Bala Dey, his relative and the sister-in-law of Jogendra by a registered kabala dated 19.03.1947 but as a matter of fact it was a mere sham transaction because Nolini did neither receive any consideration from Moni Bala nor delivered possession of the concerned land in her favour. After his death, his widow and son, while in possession of the suit land transferred the same to Rajib and his wife Sumoti Bala by a kabala registered on 27.10.1952 and also to Suraja Kumar by kabalas dated 24.10.1972 and 10.09.1974 and also duly delivered possession of the transferred land in their favour. The B.S. Khatian was also correctly prepared in the name of Surja Kumar and his wife Suniti Bala. After their death, the defendant No.2 became owner of the suit land. The admitted owner of the properties mentioned in schedule-II to the plaint was Jogendra Lal. He transferred 0.08 acre of land in R.S. Plot No.2319 in favour of the defendant No.1 by a kabala registered on 31.03.1967. After his death, his widow transferred the rest of the land in favour of the defendant No. 1 by a kabala registered on 16.07.1970. In this manner, the defendant No.1 became the owner of the entire suit land. Thereafter, he by a kabala registered on 24.10.1972, transferred the suit land to Surja Kumar, the father of the defendant No.2 and he is in possession of the same.

6. The trial Court by its judgment and decree dated 16.10.2003 found that the kabalas executed registered by Nolini and Jogendra in favour of Moni Bala in 1947 were never acted upon and so also those in favour of the plaintiffs and they were never put into possession of the suit lands. Rather, found that the widow and the son of Nolini transferred the entire suit land in schedule-I in favour of Sumoti Bala and Rajib Kumar by 9 (nine) registered kabalas dated 24.10.1972 and 10.09.1974. The defendant No.1 also purchased 0.18 acres of land from Jogendra. The Trial Court also found on evidence that the defendants are in possession of the suit land. With these findings, the Trial Court dismissed the suit.

7. On appeal, the learned additional District Judge, First Court, Chittagong, affirmed the findings of the Trial Court and dismissed the appeal.

8. On revision, the High Court Division endorsed the findings of the Appellate Court and held that is was a case of total ouster of the plaintiffs claim as co-sharer in the suit land. On these findings the Rule was discharged.

9. Being aggrieved, this petition has been filed.

10. Mr. Abdul Momen Chowdhury, Advocate, appearing on behalf of the petitioner, submits that Moni Bala became owner of the suit properties from Nalini and Jogendra by registered deeds of sale but the Courts below without any cogent reasons, illegally held that those transactions were not acted upon which was also erroneously affirmed by the High Court Division, and upheld the dismissal of the suit for partition on the ground that the plaintiffs were not co-sharers in the suit-lands. The learned Advocate, however, fails to isolate any particular error which was not addressed to by the High Court Division.

11. It appears that the plaintiffs and the defendant Nos.1 and 2 set-up competing claims of right, title and possession in the suit-lands. The Courts below approached the dispute, on the face of the title deeds produced on behalf of the defendant Nos.1 and 2 and the evidence in support of their claim of possession in the suit-lands, that the plaintiffs must prove their own case that the kabals in favour of Moni Bala were acted upon and they are in possession of the suit-lands based on those kabalas and on the basis of their own evidence. The Trial Court found that the plaintiffs failed to prove their claims on the suit-lands on preponderance of evidence. The Appellate Court, on reassessment of evidence, agreed with the findings of the Trial Court. In revision, the High Court Division also considered the contentions raised on behalf of the plaintiffs but justifiably agreed with the findings of the Appellate Court.
Under such circumstances, the contentions raised on behalf of the petitioner, has got no substance.

In the result, the petition is dismissed.
Ed.

Saleha Begum and others Vs. Nisar Uddin and others

Case No: Civil Petition for Leave to Appeal No.712 of 2005

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,Mr. Abdul Wadud Bhuiyan,,

Citation: 13 MLR (AD) (2008) 342

Case Year: 2008

Appellant: Saleha Begum and others

Respondent: Nisar Uddin and others

Subject: Property Law,

Delivery Date: 2007-05-08

Saleha Begum and others Vs. Nisar Uddin and others
13 MLR (AD) (2008) 342

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J

Saleha Begum and others..................... Petitioners
Vs.
Nisar Uddin and others................. Respondents

Judgment
May 8, 2007.

Code of Civil Procedure, 1908
Section 151

The learned Assistant Judge upon an application under section 151 of the Code of Civil Procedure, 1908 compared the signature of the alleged solenama with the admitted ones and having found primafacie the solenama as forged one set aside the order of dismissal and restored the miscellaneous case and referred the forged document to the competent Magistrate for trial. The High Court Division as well as the Appellate Division found nothing wrong with the impugned order of the Assistant Judge.

It appears that the respondents filed the application under Section 151 of the Code of Civil Procedure alleging forgery in the solenama filed before the Court praying for dismissal of their Miscellaneous Case and that the learned Assistant fudge compared the signatures in the solenama with other admitted signatures and opined that the signatures appearing in the solenama did not tally with the admitted signature and as such came to the finding as to commission of forgery in the solenama and for committing the offence of forgery in the solenama filed before the Court referred the matter to the learned Magistrate for trial according to law. .. (8)

We have also perused the judgment of the High Court Division and we are of the opinion that the High Court Division considering the facts and circumstances came to a correct decision in discharging the rule and did not commit any illegality in directing to prosecute the plaintiff-petitioners in accordance with law. ... (10)

Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate instructed by A. K. M. Shahidul Huq, Advocate-on-Record-For the Petitioners.
Syed Mahbubar Rahman, Advocate-on-Record- For Respondent No. 1.
Not represented- Respondent Nos. 2-4.

Civil Petition for Leave to Appeal No.712 of 2005.
(From the judgment and order dated 07.12.2004 passed by the High Court Division in Civil Revision No. 6491 of 2002.)

Judgment

Amirul Kabir Chowdhury J. - Saleha Begum and four other plaintiff-petitioners have preferred this petition under Article 103 of the Constitution of People's Republic of Bangladesh seeking leave to appeal against the judgment and order dated 07.12. 2004 passed by a Single Bench of the High Court Division in Civil Revision No. 6491 of 2002 discharging the rule and awarding cost of Tk.10,000/- (ten thousand) against the plaintiff-petitioners.

2. The predecessor of the plaintiff-petitioners instituted Title Suit No. 46 of 1985 in the Court of the learned Assistant Judge, Lohagora, Narail and the suit was decreed ex parte on 26.02.1995. The respondent Nos.1 and 2 being the defendants in the suit filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree on the basis of which Miscellaneous Case No. 24 of 1995 was started and that during pendency of the aforesaid Miscellaneous Case the plaintiff filed a solenama purported to have been executed between the parties and prayed for dismissal of the Miscellaneous Case for non-prosecution and the learned Assistant Judge accordingly dismissed the Miscellaneous Case on 02.01.2002 for non-prosecution.

3. The respondent Nos.1 and 2 filed an application on 02.02.2002 before the learned Assistant Judge under Section 151 of the Code of Civil Procedure stating that they did not execute any solenama and that solenama filed before the Court was forged one and as such the Miscellaneous Case filed by them should be restored. The learned Assistant Judge after hearing the parties allowed the application setting aside the previous order dated 02.01.2002 and restored the Miscellaneous Case.

4. The plaintiff petitioners being aggrieved moved the High Court Division under Section 115(1) of the Code of Civil Procedure against the aforesaid order of the learned Assistant Judge.

5. A learned Single Judge of the High Court Division after hearing the parties discharged the rule and directed the learned Assistant Judge to refer the matter to the Court of the learned Magistrate for prosecuting the plaintiff petitioners in accordance with law for committing the offence of forgery in the solenama and also awarded cost as already mentioned above.
Hence the petition.

6. Mr. Abdul Wadud Bhuiyan, learned Counsel appearing on behalf of, the petitioners submits, inter-alia, that the High Court Division committed error in law in not considering that the solenama has been formally proved by the respondent No.2 A. Razzaque Lasker and as such the impugned judgment discharging the rule and directing prosecution is not sustainable.

7. He further submits that the respondent No. 2 A. Razzaque Lasker being himself examined as witness in support of the solenama, the order of awarding cost of Tk. 10,000/- (ten thousand) against the petitioners cannot be maintained.
We have considered the submissions and perused the materials on record.

8. It appears that the respondents filed the application under Section 151 of the Code of Civil Procedure alleging forgery in the solenama filed before the Court praying for dismissal of their Miscellaneous Case and that the learned Assistant fudge compared the signatures in the solenama with other admitted signatures and opined that the signatures appearing in the solenama did not tally with the admitted signature and as such came to the finding as to commission of forgery in the solenama and for committing the offence of forgery in the solenama filed before the Court referred the matter to the learned Magistrate for trial according to law.

9. In consideration of the facts and circumstances we do not find any illegality in the judgment of the learned Assistant Judge.

10. We have also perused the judgment of the High Court Division and we are of the opinion that the High Court Division considering the facts and circumstances came to a correct decision in discharging the rule and did not commit any illegality in directing to prosecute the plaintiff-petitioners in accordance with law.

11. We have, however, considered the submission of the learned Counsel as to the order of the High Court Division in awarding cost of Tk. 10,000/- (ten thousand) upon the plaintiff-petitioners and we are of the view that in the facts and circumstances of the case ends of justice would be met if the plaintiff-petitioners are exempted from payment of the aforesaid cost of Tk. 10,000/- (ten thousand). The plaintiff-petitioners are accordingly exempted from payment of the said cost.
With the above observation this petition is dismissed.
Ed.

Saleha Begum Vs Md. Delwar Hossain Bhuiyan and others

Case No: CIVIL PETITION FOR LEAVE TO APPEAL NO. 1013 OF 2010

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,Md. Nawab Ali,,

Case Year: 2014

Appellant: Saleha Begum

Respondent: Md. Delwar Hossain Bhuiyan and others

Subject: Gift,

Delivery Date: 2014-07-06

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

Madam Justice Nazmun Ara Sultana

Mr. Justice SyedMahmud Hossain

Mr. JusticeMuhammad Imman Ali

CIVIL PETITION FOR LEAVE TO APPEAL NO. 1013 OF 2010

(From the judgement and decree dated 25^th ofAugust, 2008 passed by the High Court Division in Civil Revision No. 3471 of2007)

Saleha Begum		... Petitioner
= Versus =
Md. Delwar Hossain Bhuiyan and others		... Respondents
For the Petitioner	:Mr. Khurshid Alam Khan, Advocate, instructed by Mrs. Madhumaloty Chowdhury Barua, Advocate-on-Record
For Respondent No. 1	:Mr. Md. Nawab Ali, Advocate-on-Record
Respondent Nos. 2-5	:Not represented
Date of hearing & judgement	:The 6^th of July, 2014

J U D G E M E N T

MUHAMMADIMMAN ALI, J:-

ThisCivil Petition for Leave to Appeal is directed against the judgement and decreedated 25.08.2008 passed by a Division Bench of the High Court Division in CivilRevision No. 3471 of 2007 making the Rule absolute, thereby setting aside the thejudgement and decree dated 24.7.2007 passed by the learned Additional District Judge,8^th Court, Dhaka in Title Appeal No. 323 of 2006 and decreed theTitle Suit No. 188 of 1998.

Facts of the case, in brief, are that the suitshop bing No. 59 of Gulshan Kacha Bazar belonges to Dhaka City Corporation. Thesuit shop was allotted in favour of one Khandaker Liaquat Ali on 22.12.1983 anda lease deed was executed by the City Corporation on 11.4.1991. While KhandakerLiaquat Ali had been running his business at the said shop, he transferreed thepossession of the same to defendant No. 2 on 19.11.1991. After purchasedefendant No. 2 mutated his name with the Dhaka City Corporation and paid theCity Corporation Tax and other dues. Subsequently, defendant No. 2 sold out thepermanent possession of the suit shop in favour of the plaintiffon 02.09.1996 by executing document and also by swearing an affidavit beforethe Notary Public on 16.9.1996. The plaintiff duly took over possession of thesuit shop. Defendant No. 2 filed an application to the Chief Revenue Officer,Dhaka City Corporation, Dhaka for mutating thesuit shop in the name of the plaintiff. At the time of mutation proceedings theplaintiff came to know that defendant No.1 collusively created forged deed of gifton 02.1.1995 in respect of the suit shop though defendant No. 2 nevertransferred the same to her by way of gift. As defendant No. 1 created a falseand fraudulent deed of gift in respect of the suit shop and thus clouded plaintiff’stitle thereto he was compelled to file the suit for declaration of title to theshop and also declaration that the alleged deed of gift as described inschedule ‘Kha’ to the plaint and the affidavit were illegal, fraudulent, notregular and were not binding upon him.

The suit was contested by defendant No. 1 by filinga written statement denying the material statements made in the plaint andcontending, inter alia that defendant No. 2, her husband transferred thesuit shop in her favour on 02.1.1995 in lieu of her dower and inducted her intopossession thereof. Defendant No. 2 also executed an undertaking on 08.02.1995in favour of defendant No. 1 in respect of the suit shop admitting the saidfact of transfer by way of gift and he paid rent of the suit shop on behalf ofdefendant No. 1 because of her other pre-occupation. Defendant No. 2 also sworean affidavit on 10.9.1996 before a Notary Public admitting the fact that he hadtransferred the suit shop to defendant No. 1. Defendant No. 1 being inpossession of the suit shop as its rightful owner applied to the Dhaka CityCorporation on 10.9.1996 for mutating her name. On the basis of the saidapplication the Dhaka City Corporation asked defendant No. 1 to submit papers,which fact being informed to defendant No. 2, he in turn executed anAngikarnama as per the proforma of Dhaka City Corporation and also executed adocument identifying the signature of the defendant before a Notary Public on 20.11.1996.In the said Angikarnama defendant No. 2 clearly mentioned that he had noobjection if the name of defendant No. 1 was mutated in his place. As theplaintiff also filed an application for mutating his name while the process formutating her name in respect of the suit shop was going on, some complicationarose. The defendant came to know about the said fact of filing of theapplication by the plaintiff to mutate his name and was surprised. Sheperceived that taking the advantage of the fact of looking after the suit shopon her behalf, her husband, defendant No. 2 in collusion with the plaintiffcreated an undated deed in favour of the plaintiff in respect of the suit shop.As doubt cropped up in the mind of the defendant No. 1 after coming to know of thesaid fact, she decided to realize rent of the suit shop from the tenant and tothat end went to the suit shop, but she did not find her tenant Shah Alam.After making query from the neighbouring shop owners the defendant No. 1 cameto know that defendant No. 2 evicted the said tenant forcibly. Defendant No. 2though evicted defendant’s tenant, yet he continued to pay her rent for thesuit shop for which she could not know the fact of eviction of her tenant.Subsequently, the defendant No. 1 took possession of the suit shop and again letout the same to her tenant and her tenant is currently continuing his businessin the shop under the name and style, “Shuapna Tailors and Cloth Store” andthus she is in possession of the suit shop through her tenant.

Defendant No. 2 filed written statement admittingthe case of the plaintiff, asserting further the fact that he never transferredthe suit shop to defendant No. 1 by way of gift. Defendant No. 1 created thedeed of gift and the affidavit by forging his signature.

In the suit the plaintiffexamined 5 witnesses to prove his case and defendant No. 1 also examined 5witnesses including herself as D.W. 1.

After hearing the parties, the learned Joint District Judge, Dhaka by hisjudgement and decree dated 26.6.2006 decreed the suit declaring the plaintiff’spossession and title over the suit shop and also declaring the deed of gift andthe other papers described in schedule “Kha’ to the plaint as illegal,fraudulent and not binding upon the plaintiff.

Being aggrieved by anddissatisfied with the aforesaid judgement and decree dated 26.06.2006 defendantNo.1 filed Title Appeal No. 323 of 2006 before the District Judge, Dhaka. Subsequently, the learned Additional DistrictJudge, 8^th Court,Dhaka upon hearing the parties by his judgementand decree dated 24.7.2007 allowed the appeal reversing the judgement anddecree passed by the learned Joint District Judge.

Against the said judgementand decree of the appellate Court the plaintiff preferred Civil Revision No. 3471of 2007 before the High Court Division and obtained Rule.

By the impugned judgement and decree, the High CourtDivision made the Rule absolute and set aside the judgement and decree passedby the learned Additional District Judge in Title Appeal No. 323 of 2006 andrestored the judgement and decree passed by the trial Court.

The defendant No. 1, as petitioner, has filedthe instant civil petition for leave to appeal challenging the impugnedjudgement and decree of the High Court Division.

Mr. Khurshed Alam Khan, learned Advocate appearingon behalf of the petitioner submitted that the appellate Court, as the lastcourt of facts considered all the evidence and materials and upon elaboratediscussion came to the finding that defendant No. 2, being the husband ofdefendant No. 1 transferred the disputed shop in favour of his wife by way ofdeed of gift dated 02.01.1995, which was supported by the evidence of DW 2 andDW 5, who are children of defendant No. 1 and defendant No. 2. He furthersubmitted that the appellate Court found that the relationship of defendantNos. 1 and 2 became strained and deteriorated and as such out of grudge andvengeance defendant No. 2 in collusion with the plaintiff subsequently createdthe document of transfer in the name of the plaintiff on 16.09.1996. Thelearned Advocate further pointed out that the City Corporation, being the ownerof the shop admitted the possession of defendant No. 1 in their writtenstatement. The learned Advocate submitted that the High Court Division erred inlaw in setting aside the judgement and decree of the lower appellate court,which is the last court of facts. In this connection he referred to the decessionreported in 5 MLR (A.D.) 256 and 57 DLR (A.D.) 55. He finally submitted thatthe claim of defendant No. 1 that her husband transferred the suit shop to herby way of oral gift, which was supported by an affidavit and a deed of giftexecuted by her husband, which was proved by producing exhibits “A”, “B” and“C”, was not properly considered by the High Court Division.

We notefrom the impugned judgement that the High Court Division meticulouslyscrutinised all the evidence and materials on record and came to a finding thatdefendant No. 1 failed to prove her possession in the suit shop. In particular,the High Court Division observed that the appellate court did not at allconsider the apparent fact that defendant No. 1 could not produce a singleoriginal document in respect of the suit shop, such as, letter of allotment,deed of agreement, rent receipt showing realisation of rents for the suit shop,whereas these original documents were produced by the plaintiff. The High CourtDivision also observed that the defendant No. 1 failed to prove that her tenantShah Alam was forcibly evicted by examining a witness from the market. The HighCourt Division also noted that the appellate court did not consider theevidentiary value of PWs 2, 3 and 4 who supported the plaintiff’s case thatafter purchase of the possessory right of the suit shop he got possessionthereof. The High Court Division highlighted the contradiction in the statementof defendant No. 1 in her written statement that her husband transferred thesuit shop to her by way of oral gift, whereas in evidence in court she produceda written deed of gift, and added that a written gift by a person must beregistered as provided in section123 of the Transfer of Property Act and section 17 of the Registration Act.The High Court Division observed that the production of the documents exhibits“A”, “B” and “C” falsified the testimony of DWs 2 and 5.

Having carefully considered the evidence andmaterials before us, we are of the view that the defendant No. 1 could notsatisfactorily prove the gift of the suit shop in her favour. She contradictedher own claim of an oral gift by producing in evidence written documents ofgift. On the other hand, she did not prove the written deed of gift byproducing any witness to the deed to support her claim. Moreover, as observedby the High Court Division, a written deed of gift of immovable property isrequired to be registered. It was the clear finding of the High Court Divisionthat the deed of gift having not been registered, the transfer is void.

In view of the above discussion, we do not findany illegality or infirmity in the judgement of the High Court Division.

Accordingly, the civil petition for leave to appealis dismissed, without, however, any order as to costs.

Salma Alam Khan Vs. Mahanagar Traders Ltd 2016 (2) LNJ 380

Case No: Civil Revision No. 2351 of 2013.

Judge: Kashefa Hussain,

Court: High Court Division,,

Advocate: Mr. Moinuddin,Mr. Md. Harun-ar-Rashid,,

Citation: 2016 (2) LNJ 380

Case Year: 2016

Appellant: Salma Alam Khan

Respondent: Mahanagar Traders Ltd

Subject: Civil Law,

Delivery Date: 2015-12-06

Salma Alam Khan Vs. Mahanagar Traders Ltd 2016 (2) LNJ 380
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

Syed Muhammed Dastagir Hussain, J
And
Kashefa Hussain, J.
Judgment on
06.12.2015

Mrs. Salma Alam Khan
. . .Petitioner
Versus
Mahanagar Traders Ltd. represented by its Chairman Arjumand Ara
...Opposite Parties

Code of Civil Procedure (V of 1908)
Order X Rule 13
Pursuance to the submissions of the learned Advocates we are of the considered view that for some inadvertent fault of the learned advocate for defendant and that is only once, the party should not suffer, and, therefore, we feel that the Trial Court correctly allowed the application in Miscellaneous Case No. 02 of 2011 dated 08.02.2011. . . . (7)

Code of Civil Procedure (V of 1908)
Order IX Rule13
In the case before us, it is evident from the order dated 08.02.2011 of the trial court, that the court upon examining the facts and upon exercising its own discretion allowed the application under order 9 rule 13 which discretion the court is lawfully empowered to exercise. . . . (10)
Civil Revision No. 2351 of 2013.

Mr. Md. Harun-Ar-Rashid, Advocate
. . . For the Petitioner
Mr. Moinuddin, Advocate
. . . For Opposite Party no.1

JUDGMENT

Kashefa Hussain, J:
Rule was issued at the instance of the petitioner against order no.155 dated 13.01.2013 passed by the learned Joint District Judge, Additional Court, Dhaka in Miscellaneous Case No. 02 of 2011 arising out of Title Suit No. 07 of 1996 allowing the application of the defendant under Order 9 Rule 13 of the Code of Civil Procedure and condoning the delay of 307 days in filing the application.

The facts relevant for disposal of the Rule in short are that the petitioner as plaintiff filed Title Suit No. 277 of 1995 which was transferred and subsequently re-numbered as Title Suit No. 07 of 1996. The suit was filed after complying with due procedure and upon hearing ultimately decreed vide judgment and decree dated 30.03.2010. Thereafter, on 08.02.2011 the defendants filed the Miscellaneous Case No. 02 of 2011 under order 9 rule 13 of Code of Civil Procedure for setting aside the judgment and decree dated 30.03.2010 paying the prescribed mandatory deposit etc. Primarily the defendant alleged that the judgment and decree dated 30.03.2010 was an ex-parte order and ought to be set-aside. The PW-1 and DW-1 deposed in the Miscellaneous Case which was allowed by order dated 13.01.2013 along with condonation of delay of 307 days and thus setting aside the judgment and decree dated 30.03.2010 passed by the Trial Court being aggrieved by the order passed in Miscellaneous Case no. 02 of 2011 allowing the application under order 9 rule 13 of Code of Civil Procedure the plaintiff as petitioner preferred this instant Revisional Application and is hence before us.
Mr. Md. Harun-Ar-Rashid Learned Advocate appeared for the petitioner while Mr. Moinuddin Learned Advocate appeared for the opposite party.
Learned Advocate Mr. Md. Harun-Ar-Rashid on behalf of the petitioner submits that the Miscellaneous Case can be allowed but basically on 2 grounds that is for non service of summons and another ground being that order 9 rule 13 of the Code of Civil Procedure is not applicable in the instant case. Since the defendant executed Vokalatnama, written statement and also cross-examined the plaintiff. He further drew our attention to the operative portion of the judgment and decree dated 30.03.2010 and primarily tries to focus upon the word “দোতরফা সুত্রে শুনানী অন্তে ডিক্রি হইলচ in his argument he stresses on the point that it is ‘clear’ that the judgment dated 30.03.2010 was not an ex-parte order since the ordering portion itself reads “দোতরফা সুত্রে শুনানী অন্তে ডিক্রি হইলচ stating that the judgment was executed upon presence of both the plaintiff’s and defendant’s sides. He also submits that according to Article 164 of the limitation Act the miscellaneous case has to be filed within 30 days of knowledge of the decree when in case of non service of summons.
On the other hand learned Advocates Mr. Moinuddin on behalf of the defendant opposite party submits that judgment and order dated 30.03.2010 is actually an ex-parte order and defendants were not present on that particular day before the court and had no knowledge that judgment was going to be passed on that day. He persuades that the use of the term “দোতরফা সুত্রেচ is only an inadvertent error on the part of the Trial Court and which is evident from the order passed in Miscellaneous Case No. 02 of 2011 dated 13.01.2013 allowing the application along with condonation of delay of 307 days and also submits that the original Title Suit was filed in the year 1995 and the suit was dragged on for long 15 years mainly due to various delaying tactics resorted to by the plaintiff. He stresses upon the fact that it is evident from the records that the suit was dismissed several times and that it would be eventually restored repeatedly on various pleas of the plaintiff’s. He further persuades that lastly when it was taken up for hearing due to some unavoidable circumstances on the part of the learned Advocate for the defendant which was inadvertent and totally unintentional, the defendant otherwise diligent regarding the case however could not be present in court on that day. He alleges that the defendant had no knowledge of the judgment being passed on 30.03.2010 and which they ultimately learnt later, and finally on 24.01.2011 after receiving knowledge of the judgment filed the Miscellaneous Case No. 02 of 2011 on 08.02.2011, In this context he assails that he filed the case within 30 days of knowledge of the decree in accordance with the statutory rules.
We have heard the Learned Advocates from both sides, perused the materials on record including the miscellaneous application and order passed by the Trial Court allowing the application, wherefrom, it transpires and as is evident from the records that the defendant received summons etc. and in filing the Miscellaneous Case is barred by Article 164 of the Limitation Act, and it also appears from the records that the plaintiff-petitioner had actually prayed for adjournment several times from last 15 years on different pleas and it is also evident from the record that the suit was dismissed for default thrice, firstly on 07.02.19999, secondly on 10.05.2001 and lastly on 24.07.2005 and it was restored each time on the prayer of the plaintiff.
However, upon perusal of the records, we have marked the lack of diligence and delaying tactic shown by the petitioner pending the suit, whereas on the other hand no such conspicuous lack of diligence appears on the part of the defendant, while it is also evident upon examination that the petitioner had on different pretexts created by themselves dragged the suit up to 15 years. It also transpires that even after hearing and examining PW-1 the defendant for some reasons could not appear on the day of the judgment and which they have submitted and stated that they had no knowledge of the same which is unintentional and inadvertent. It is true that the plaintiff’s suit was discharged and restored thrice and adjourned several times and also restored several times but on the other hand the defendant as is ex-facie evident from the records only once failed to be diligent which was due to inadvertence of the learned advocate for the defendant-petitioner-opposite party. Thus relying upon equitable principles, we are of the considered view that if the plaintiff-opposite party-petitioner could be given so many chances even after failing thrice, it is only fair that the defendant opposite parties having failed only once ought to be given a similar chance. Pursuance to the submissions of the learned Advocates we are of the considered view that for some inadvertent fault of the learned advocate for defendant and that is only once, the party should not suffer, and, therefore, we feel that the Trial Court correctly allowed the application in Miscellaneous Case No. 02 of 2011 dated 08.02.2011. The learned Advocate for the petitioner argued that Article 164 of the Limitation Act provides that in the event of prayer for setting aside a decree passed ex-parte, time shall start from the date of the decree or where the summons was not duly served when the applicant has knowledge of the decree. The learned advocate for the petitioner tried to persuade us that in this case summons was served, it is evident that summons was served and all other due process were complied with, and, therefore, the defendant cannot rely on having received knowledge of the judgment and decree.
Now the instant civil revision arises out of a Miscellaneous Case for setting aside the judgment and decree under order 9 rule 13 of the Code of Civil Procedure, and, therefore, we feel that for our purpose order 9 rule 13 of Cpc. is applicable in the instant case.
Order 9 rule 13 reads as under;

“In any case in which a decree is passed ex-parte against defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment in to Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
Provided that where the decree is of such a nature that it cannot be set-aside as against such defendant only it may be set-aside as against all or any of the other defendants also.”

After perusal of order 9 rule 13, that order 9 rule 13 of the Code of Civil Procedure quite expressly states the criteria and condition and situations under which an application for setting aside an ex-parte order may be allowed. We have examined that order 9 rule 13 provides for a disjunctive clause, wherein it provides for situations or circumstances where a defendant may be prevented by any “sufficient cause” for appearing before the court. In the case before us, it is evident from the order dated 08.02.2011 of the trial court, that the court upon examining the facts and upon exercising its own discretion allowed the application under order 9 rule 13 which discretion the court is lawfully empowered to exercise. Our considered view is that under the facts and circumstances, it is only fair that the application under order 9 rule 13 ought to be allowed and the Trial Court correctly allowed the same and has elaborated upon the reasons for allowing the same in his Order in the Miscellaneous Case filed by the defendant against the ex-parte Judgment and Decree passed by the Trial Court. The last contention of the petitioner is that the Judgment and Decree is not actually an ex-parte order and further persuades that it also “apparent” from the ordering portion of the judgment dated 30.03.2010 wherein it is stated that the Judgment is passed “দোতরফা সুত্রেচ Against this contention of the learned Advocate for the petitioner our considered finding is that using the word “দোতরফা সুত্রেচ was actually an inadvertently error on part of the Trial Court and which is obvious from the fact that the Trial Court allowed the application under order 9 rule 13 of Cpc. and in his order explained the facts and grounds of allowing the application quite elaborately, and which is also apparent from the Judgment where the Trial Court made an observation that after cross examination of PW-1, the defendant did not come, therefore, it is evident and obvious that the order “দোতরফা সুত্রেচ used in the ordering portion of the judgment was only an inadvertent error on the part of the Trial Court.
Taking all the facts and circumstances into consideration, we arrive at our considered finding that the Trial Court vide its Order no.155 dated 13.01.2013 in Miscellaneous Case No.02 of 11 arising out of Title Suit No. 07 of 1996 correctly allowed the application under Order 9 rule 13 of the Cpc. , and, therefore, we do not find any merits in this rule.
In the result, the Rule is hereby discharged without any Order as to costs and the judgment and order dated 08.02.2011 passed by the Trial Court is hereby affirmed.
Communicate at once.

ED.

Samsuddin Nakib and others Vs. Syed Fakruddin Ahmed and others

Case No: Civil Petition for Leave to Appeal No. 598 of 2006.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Abdul Quayum,Mr. Bivash Chandra Biswas,,

Citation: VI ADC (2009) 464

Case Year: 2009

Appellant: Samsuddin Nakib and others

Respondent: Syed Fakruddin Ahmed and others

Subject: Property Law,

Delivery Date: 2008-01-08

Samsuddin Nakib and others Vs. Syed Fakruddin Ahmed and others
VI ADC (2009) 464

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin J
Md. Tafazzul Islam J
Md. Abdul Matin J

Samsuddin Nakib and others…………………………..Petitioners
Vs.
Syed Fakruddin Ahmed and others...........Respondents

Judgment
January 8, 2008.

Appellate Court did not commit any error in examining the hand writing expert and admitting additional evidence and then arriving at the finding that it is the plaintiff No.1 who executed the deed of sale dated 27.7.1960 in favour of Krishan Kanta and further the appellate Court also observed that in the instant suit for partition and declaration in respect of deeds as mentioned in schedule Kha and Ga of the plaint the trial court should have framed issues in respect of the share of the plaintiffs in the suit land and also should have decided as to whether the plaintiff No.1 executed the trial Court, on misconceived view, decreed the suit even though the plaintiff No.1 failed to prove his title and possession in the suit land. ….. (5)

Cases Referred To-
Md. Nurullah Chowdhury vs. Golam Sollaiman Kazi DLR (HC) 70; Rahela Khatun and another vs. Fayezuddin Shah 38 DLR (AD) 6.

Lawyers Involved:
Bivash Chandra Biswas, Advocate-on-Record-For the Petitioners.
Abdul Quayum, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos. 2-21.

Civil Petition for Leave to Appeal No. 598 of 2006.
(From the judgment and order dated 30.6.2004 passed by the High Court Division in Civil Revision No. 6498 of 2001).

Judgment

Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 30.6.2D04 of the High Court Division passed in Civil Revision No. 6498 of 2001 discharging the Rule obtained Challenging the judgment and decree dated 23.7.2000 passed by the First Additional District Judge, Barisal in Title Appeal No.47 of 1994 reversing those of dated 9.3.1994 of the learned Subordinate Judge (now Joint District Judge), First Court, Barisal passed in Title Suit No.13 of 1980 decreeing the suit.

2. The predecessor of the petitioner Nos.1-19 as well as the predecessors of the respondent Nos. 8-21, as plaintiffs, filed above Title Suit No.13 of 1980 seeking partition of 'Ka' scheduled land and also seeking declaration that the deeds as described in the schedule 'Kha' and Ga to the plaint are illegal, collusive, null and void, fraudulent and not binding upon them on the averments that Jagabandhu Shil was the owner of the suit land and after his death his three sons Krishna Kanta, Protap Chandra and Nishi Kanto owned the suit land in equal shares and the record of right in R.S. Khatian No.1135, shich included Plot Nos. 6550 and 6551, was also prepared in their names; Krishan Kanta transferred his 30 decimals of land in favour of the plaintiff No.1 by a registered patta dated 9.6.1953 and also delivered possession and the plaintiff No.1 is possessing the said land by paying rents; Protap Chandra having died issueless laving behind his widow, Sundari Bala Shil, who along with Krishna Kanta and Nisha Kanta, the reversioners, became the onwer of the portion of Protab Chandra; the record of right in S.A. Khatian No. 970 in respect of 30 decimals of a land in favour of the plaintiff No.1 by a registered patta dated 9.6.1953 and also delivered possession and the plaintiff No.1 is possessing the said land by paying rents; Protap Chandra having died issueless leaving behind his widow, Sundari Bala Shil, who along with Krishan Kanta and Nisha Kanta, the reversions, became the owner of the portion of Protab Chandra; the record of right is S.A. Khatian No. 970 in respect of 30 decimals of land was prepared in the name of the plaintiff No.1 who out of that sold 15 decimals of land in favour of the plaintiff Nos. 2-5 by kabala dated 13.8.1979 and also delivered possession to them and thus the plaintiff Nos.1-5 are possessing the suit land measuring 30 decimals; the balance 60 decimals of and appertaining to Plot Nos. 6550 and 6551 being wrongly recorded in S.A. Khatian No.1446 in the name of Nishi Kanta and Sundari Bala, who left for India, was declared as vested property and was leased out to the defendant No.1 and thus the defendant Nos.1 and 2 who have no right, title, and interest in the land measuring 30 decimals of land which the plaintiff No.1 got by patta dated 9.6.1953; the defendant Nos.1 and 2, on 5.1.1980, claimed the suit land on the basis of two fictitious kabalas dated 27.7.1960 and 18.4.1979 purported the have been executed by plaintiff No.1 and the defendant No. 3 and hence the suit. The defendant Nos. 1 and 2 contested the suit by filing written statement contending that Krishan Kanta has transferred his share to the plaintiff No.1 through a patta dated 9.6.1953 but thereafter the plaintiff No.1 by Kabala dated 27.7.1960 retransferred the same to Krishna Kanta but however in the said kabala dated 27.7.1960, the plaintiff No.1 instead of relevant khatian No.970 and Plot Nos. 6550 and 6551 with an area of .30 acres of land, collusively inserted Khatian No. 937 and Plot Nos. 1399 and 1407 containing an area of .44 acres of land and that after the death of Krishna Kanta, his son, the defendant No.3, having sold out the entire land to the defendant Nos.1 and 2 by kabala dated 18.4.1979 and the defendants Nos.1 and 2 possessing the suit land and the plaintiffs have got no right, title, and possession over the suit land.

3. The trial Court, after hearing, decreed the suit. On appeal and the learned Additional district Judge, 1st Court, Barisal, after hearing, allowed the appeal and thereby dismissed the suit. The plaintiffs then moved the High Court Division and obtained Rule and after hearing the High Court Division discharged the Rule.

4. We have heard the learned counsel for petitioner and perused the impugned judgment and order and other connected papers.

5. As it appears the High Court Division took the view that, in view of the principles laid down in the case of Md. Nurullah Chowdhury vs. Golam Sollaiman Kazi 26 DLR (HC) 70 and in the case of Rahela Khatun and another vs. Fayezuddin Shah 38 DLR (AD) 6, the appellate Court, instead of sending the suit on remand, was competent to admit evidence to decide whether the plaintiff No.1 executed the kabala dated 27.7.1960 in favour of Krishna Kanta and whether both the LTI in the said kabalas are of the same person and accordingly in appellate Court did not commit any error in examining the hand writing expert and admitting additional evidence and then arriving at the finding that it is the plaintiff No.1 who executed the deed of sale dated 27.7.1960 in favour of Krishan Kanta and further the appellate Court also observed that in the instant suit for partition and declaration in respect of deeds as mentioned in schedule Kha and Ga of the plaint the trial court should have framed issues in respect of the share of the plaintiffs in the suit land and also should have decided as to whether the plaintiff No.1 executed the trial Court, on misconceived view, decreed the suit even though the plaintiff No.1 failed to prove his title and possession in the suit land.

6. We are of the view that the High Court Division on proper consideration of the materials on record discharged the Rule. The learned counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference.

7. The petition is dismissed.
Ed.

Sanat Kumar Dhar and others Vs. Aminul Haque and others

Case No: Civil Review Petition No.23 of 2006.

Judge: Said Juma Chitembwe,Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Bivash Chandra Biswas,S. M. Zillul Haque,,

Citation: V ADC (2008) 248

Case Year: 2008

Appellant: Sanat Kumar Dhar and others

Respondent: Aminul Haque and others

Subject: Property Law,

Delivery Date: 2006-12-12

Sanat Kumar Dhar and others Vs. Aminul Haque and others
V ADC (2008) 248

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J

Sanat Kumar Dhar and others …………………………..Petitioners
Vs.
Aminul Haque and others .........Respondents

Judgment
December 12, 2006.

We have perused the grounds taking which the review petition has been filed. The grounds do not show that there is mistake apparent on the face of the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact. The grounds taken in the review petition show that the petitioner in the garb of seeking review is intending to get the petition for leave to appeal heard afresh. Since the grounds taken in the review petition in no way are the grounds of review of a judgment, the petition is dismissed. …. (4)

Lawyers Involved:
Bivash Chandra Biswas, Advocate-on-Record-For the Petitioners.
S.M. Zillul Huq. Senior Advocate, instructed by Nawab Ali, Advocate-on-Record-For the Respondents.

Civil Review Petition No.23 of 2006.
From the Judgment and Order dated July 20, 2005 passed by the Appellate Division in Civil Petition for Leave to Appeal No. 1635 of 2003).

Judgment

Md. Ruhul Amin J. - This petition seeking review has been filed against the judgment dated July 20, 2005 in Civil Petition for Leave to Appeal No. 1635 of 2003. The civil petition for leave to appeal was filed against the judgment of the High Court Division dated July 16, 2003 in Civil Revision No. 3197 of 1998 which was filed against the judgment and decree dated July 5, 1998 of the 3rd Court of Subordinate Judge (now Joint District Judge), Mymensingh in Other Class Appeal No. 128 of 1994 setting aside the judgment and decree dated March 23, 1994 of the Additional Court of Senior Assistant Judge, Mymensingh in Other Class Suit No.70 of 1992 decreeing the same. The High Court Division by the judgment as mentioned hereinbefore upon making the Rule absolute reversed the judgment of the appellate Court.

2. The suit was filed seeking declaration of title recovery of khas possession.

3. The trial Court decreed the suit as mentioned hereinbefore and on appeal the judgment of the trial Court was set aside and the suit was sent back on remand for fresh trial. As against the order of the appellate Court plaintiff obtained Rule in the aforementioned civil revision. The High Court Division made the Rule absolute and thereby restored the judgment of the trial Court. This Court while dismissing the petition for leave to appeal observed that the trial Court upon due consideration of the materials on record disposed of the issues framed by it or in other words the trial Court disposed of the suit upon adjudicating the issues involved therein but the appellate Court without discussing the evidence and without taking into consideration the facts which ought to have been taken into consideration while disposing of the appeal interfered with the judgment and decree of the trial Court and thereupon sent back the suit to the trial Court for fresh trial. While dismissing the. petition for leave to appeal we observed that appellate Court without arriving at the finding that the trial Court disposed of the suit on preliminary point or that without adjudicating the issue involved in the suit set aside the judgment of the trial Court and thereupon sent back the suit to the trial Court for fresh trial. It was noticed by us that the High Court Division having satisfied that there were sufficient materials to dispose of the case on merit and that to avoid prolongation of the litigation went for consideration of the materials on record and thereupon made the Rule absolute upon setting aside the judgment of the appellate Court. We are of the view in the background of the materials on record High Court Division was not in error in disposing of the case on merit instead of sending the suit back either to the appellate Court or to the trial Court. In our opinion the High Court Division did the right thing in disposing of the case on merit since an order or remand would unnecessarily delayed disposal of the suit.

4. We have perused the grounds taking which the review petition has been filed. The grounds do not show that there is mistake apparent on the face of the judgment sought to be reviewed or that the review petition has been filed on the discovery of new fact. The grounds taken in the review petition show that the petitioner in the garb of seeking review is intending to get the petition for leave to appeal heard afresh. Since the grounds taken in the review petition in no way are the grounds of review of a judgment, the petition is dismissed.
Ed.

Sanatannessa Bewa Vs. Haipatullah Sarker & others, 41 DLR (AD) (1989) 105

Case No: Civil Appeal No. 57 of 1987

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Sharifuddin Chaklader,Mr. Md. Afzal Hossain,,

Citation: 41 DLR (AD) (1989) 105

Case Year: 1989

Appellant: Sanatannessa Bewa

Respondent: Haipatullah Sarker and others

Subject: Procedural Law,

Delivery Date: 1987-7-21

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Sanatannessa Bewa
...........................Petitioner
Vs.
Haipatullah Sarker & others
...........................Respondents

Judgment
July 21, 1987.

The Code of Civil Procedure, 1908 (v of 1908),
Section 104
Before exercising the discretion for restoration of a case, the court takes into consideration whether any useful purpose will be served in allowing the restoration and no such purpose is apparent on restoration in this case, the court is reluctant to restore and also to relieve the parties from fruitless litigation…………………….(5)

Lawyers Involved:
Sharifuddin Chaklader, Advocate-on-Record— For the Petitioner
Md. Afzal Hossain, Advocate-on-Record-For the respondent Nos. 1, 3(f) & 4.
Not represented- Respondent Nos. 2, 3 (a) to 3(e).

Civil Appeal No. 57 of 1987.

JUDGMENT

A.T.M. Afzal J.

Plaintiff is the appellant. Leave to appeal was obtained from order dated 24.10.1983 passed by a Single Judge of the High Court Division, Rangpur Bench in Second Appeal No. 268 of 1978 dismissing an application for restoration of the said appeal which was dismissed for default on 19.6.83.

2. The grievance made by the appellants is that the learned Judge instead of considering whether the learned Advocate for the appellant was prevented by sufficient cause from appearing when the appeal was taken up for hearing dismissed the petition for restoration holding that there was no merit in the appeal.

3. Upon a scrutiny of the relevant orders, it appears that the grievance is not entirely justified. It is true that on both occasions i.e. while dismissing the appeal for default and also while rejecting the application for restoration the merit of the appeal was taken into consideration by the learned Judge. But then it has also been found that 'there was no satisfactory legal plea on the part of the plaintiff-appellant which prevented him from attending court when the case was fixed for hearing'.

4. It appears that the second appeal arose out of a suit for declaration that a Hiba-Bil-Ewaj was obtained by fraud. Both the courts below concurrently found that the plaintiff could not establish the alleged fraud and accordingly the suit was dismissed and it was affirmed in appeal. The learned Judge of the High Court Division having noticed the facts of the case observed that it was concluded by a concurrent finding of fact. In that context it was further observed that no purpose would be served in restoring the second appeal for further hearing.

5. In considering art application for restoration the court often takes into consideration, besides the grounds taken for restoration, whether any useful purpose will be served in allowing the same. In its anxiety to do justice the merit of the case is often considered by the court before exercising discretion in such matter. We do not, therefore, think that the impugned order has been vitiated by reason of consideration of the merit of the case also. We ourselves feel having regard to the facts of the case that the plaintiff instead of being benefited in any manner will be driven to a fruitless litigation if the restoration is allowed. The impugned order, therefore, does not call for any interference.

The appeal is, accordingly, dismissed without any order as to cost.

Ed.

Sanowara Drinks & Beverage Industries Limited Vs. Bangladesh Power Development Board & Others 2017 (2) LNJ 68

Case No: Writ Petition No. 12086 of 2006

Judge: J. B. M. Hassan. J.

Court: High Court Division,

Advocate: Mr. Md. Ashik Al Jalil, Mr. A.M. Masum, Md. Nasir Shikder,

Citation: 2017 (2) LNJ 68

Case Year: 2017

Appellant: Sanowara Drinks & Beverage Industries Limited

Respondent: Bangladesh Power Development Board & Others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-23

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

J. B. M. Hassan, J

Judgment on

07.03.2017

}

Sanowara Drinks and Beverage Industries Limited represented by its Managing Director, Chittagong.

. . . Petitioner

-Versus-

The Bangladesh Power Development Board represented by its Chairman and others.

. . . Respondents

Constitution of Bangladesh, 1972

Article 102(2)(a)(i)(ii)

Bangladesh Energy Regulatory Commission Act (XII of 2003)

Section 40

On perusal of the letter dated 12.07.1998, we do not find any condition within its four corners for settlement of dispute between the parties in any manner. Therefore, our considered view is that proviso to section 40 of the Act, 2003 is not applicable regarding this dispute as raised by the writ petitioner and that being so, the subject matter of the Rule Nisi as to determination of the impugned final bill has to be settled in accordance with the provisions of section 40 of the Act, 2003 read with the Regulations, 2014. Although at the time of filing the writ petition this provision was not in existence and the petitioner had to file the writ petition but in the meantime the efficacious alternative forum having been provided for by section 40 of the Act, 2003 the petitioner has to avail himself of the said forum in accordance with the provisions therein. . . . (12 and 13)

Titas gas (T & D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others, 5 ALR-2015(1) page 292 and an unreported decision passed in Writ Petition No.16010 of 2012 ref.

Mr. Md. Ashik Al-Jalil, Advocate

. . . For the petitioner

Mr. A. M. Masum with

Mr. Nasir Shikder, Advocates

. . . For the respondent No.1

JUDGMENT

J. B. M. Hassan, J. This Rule Nisi was issued calling upon the respondents to show cause as to why the final notice issued under the signature of the respondent No.3 dated 19.06.2006 (Annexure-J2) for disconnection of electricity line of the petitioner for non-payment of arrear bill for the period of 30.09.2003 to 30.04.2006 should not be declared to have been made without lawful authority and is of no legal effect and why they should not be directed to replace the old meter by a new meter and/ or such other or further order or orders passed as to this Court may seem fit and proper.

2. Pertinent facts leading to issuance of the Rule Nisi, inter alia, are that the petitioner, a private limited company, is engaged in bottling various types of soft beverages (non-alcoholic drinks) as well as processing of ice-cream and supplying the same to the local market having its factory at Chittagong Industrial Area, Arakan Roak, Chittagong which was set up in the year, 1998. The petitioner got electricity connection in the year, 1998 from the Bangladesh Power Development Board (the respondent No.1) having the meter, in particular, Meter Type KWH. No. 59807297 and Meter Type KVARH, NO. 59807344. At the relevant time of installation of electricity connection there being no new meter, the respondent set up an old meter with an assurance to replace the same as early as available. Subsequently, the petitioner approached the respondent No.1 on several occasions to set up a new meter as the old meter was creating disturbance and that cessation of power supply had occurred on six different occasions due to metering problem. Further, the petitioner’s meter had the multiplication factor 100 specified on the outer body and it was the number employed from the time of installation in 1998 until August, 2003. But from the month of September, 2003 the number 124 was employed as the multiplication factor and thereby substantially increasing the bill of the petitioner without any objective basis and in an arbitrary manner.

3. All of a sudden, the petitioner received a letter regarding arrear bills amounting to Tk.15,83,084.23 for the period from September, 2003 to December, 2005 and thereafter, a final notice dated 19.06.2006 was served upon the petitioner demanding bills amounting to Tk. 16,80,790/- from 30.09.2003 to 30.04.2006 directing to pay within last payment date of the running month bill, failing which, the connection would be snapped. On 01.07.2006 the electricity connection of the petitioner was snapped due to mechanical fault but subsequently it was not restored by the respondent on the plea of non payment of their demand made on 19.06.2006. In the circumstances, the petitioner filed this writ petition and obtained the present Rule Nisi on 06.02.2007. The petitioner also obtained an interim order of stay in respect of demand and also got restoration of the electricity line within seven working days from the date of receipt of the order as per interim order of direction.

4. The Bangladesh Power Development Board (the PDB) as the respondent No.1 appearing in the Rule Nisi has filed an affidavit-in-opposition mainly questioning maintainability of the writ petition contending, in brief, that section 40 of the Bangladesh Energy Regulatory Commission Act, 2003 (the Act, 2003) has provided a procedure for settling the dispute between the Licensee and the Consumer and therefore the writ petitioner having alternative forum within the ambit of section 40 of the said Act, 2003 the present writ petition is not maintainable. It is further contended that in the meantime the Bangladesh Energy Regulatory Commission (the Commission) made Regulations, namely, the Bangladesh Energy Regulatory Commission Dispute Settlement Regulations, 2014 (the Regulation, 2014) in exercise of the powers conferred by the sections 59 and 60 of the Act, 2003 read with section 40 thereof and that the Regulations have introduced a detailed procedure for settlement of the dispute between the Licensee and the Consumer including a provision to pass interim order by the Commission.

5. Mr. Md. Ashik Al-Jalil, the learned Advocate appearing for the petitioner submits that in an arbitrary manner the respondent No.1 enhanced the multiplication factor from 100 to 124 without any objective basis and therefore the impugned final bill can not be sustained in the eye of law. He further submits that the demand has been made without any physical examination of the meter and without giving the petitioner an opportunity of being heard by issuing a show cause notice.

6. Mr. A. M. Masum, the learned Advocate with Mr. Nasir Shikder, the learned Advocate appearing for the PDB (respondent No.1), at the very outset questions the maintainability of the writ petition drawing our attention to section 40 of the Act, 2003 in that the provision for settling the dispute between the Licensee and Consumer having been provided by way of arbitration, the petitioner cannot maintain this writ petition. He further contends that the demand of final bill being an issue involving disputed question of facts, can not be adjudicated in this writ jurisdiction. In support of his submissions, the learned Advocate refers to the case of Titas Gas (T&D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others reported in 5ALR -2015(I) page 292 and an unreported judgment passed by a Division Bench in writ petition No. 16010 of 2012 wherein one of us was a party.

7. In reply to the aforesaid submissions, Mr. Md. Ashik Al-Jalil submits that section 40 has been introduced by the Act, 2003 and that in view of its proviso, this provision as well as the cited cases will not be applicable in this particular case inasmuch as the agreement between the Licensee and the petitioner-Consumer was executed prior to enactment of the Act, 2003 i.e in the year, 1998.

8. We have gone through the writ petition, affidavit in-opposition filed by the respondent No.1, relevant laws and the cited cases.

9. Maintainability of the writ petition having been raised, we consider that it should be decided first before entering into the merit of the writ petition. In this regard, it is now settled by the consistent judgments of the High Court Division as referred to by the learned Advocate for the respondent that section 40 having been provided by the Act, 2003, the dispute between the Licensee and the Consumer has to be settled in accordance with that particular provision. Expressing agreement with these judgments, Mr. Jalil has pointed out that the petitioner obtained the connection of the electricity line in the year 1998 pursuant to an agreement and the proviso to section 40 of the Act, 2003 excludes its applicability in respect of agreement executed prior to enactment of the said provision. Therefore, to appreciate his submission let us first scan the said provisions of section 40 of the Act, 2003 which runs as follows:

Kwgkb KZ©„K mvwjm-gxgvsmv

ÔÔ40| (1) mvwjm AvBb, 2001(2001 m‡bi 1 bs AvBb) ev Ab¨ AvB‡b hvnv wKQyB _vKzK bv †Kb, jvB‡m›mx‡`i g‡a¨ A_ev jvB‡m›mx I †fv³vi g‡a¨ D™¢yZ †h †Kvb weev` gxgvsmvi Rb¨ Kwgk‡bi wbKU †cÖiY Kwi‡Z nB‡e:

Z‡e kZ© _v‡K †h, GB AvBb Kvh©Ki nBevi Ae¨vwnZ c~‡e© †Kvb †emiKvix †Kv¤úvbxi mwnZ miKvi ev miKv‡ii †Kvb ms¯’vi GbvwR© msµvš— Pyw³ m¤úvw`Z nBqv _vwK‡j, we‡iva gxgvsmvi †¶‡Î D³ Pyw³i kZ©vejx cÖ‡hvR¨ nB‡e|

(2) Kwgkb mvwjmKvix wnmv‡e ¯^xq D‡`¨v‡M c`‡¶c MÖnb Kwiqv †iv‡q`v` cÖ`vb Kwi‡Z cvwi‡e ev we‡iv‡ai wb¯úwË Kwievi Rb¨ mvwjmKvix wb‡qvM w`‡Z cvwi‡e|

(3) D³i“c gxgvsmv Kwievi wbqg I c×wZ cªweavb Øviv wba©vwiZ nB‡e|

(4) Kwgkb KZ©„K wbhy³ mvwjmKvix Zvnvi †iv‡q`v` Kwgkb eive‡i Dc¯’vcb Kwi‡e Ges Kwgkb Dnvi wfwË‡Z wbgi“c h_vh_ Av‡`k cÖ`vb Kwi‡e, h_v:-

(K) †iv‡q`v` Aby‡gv`b I ev¯—evqb;

(L) †iv‡q`v` i` ev ms‡kvab; ev

(M) mvwjmKvix KZ„©K c~bwe©‡ePbvi Rb¨ †iv‡q`v` †cÖiY|

(5) Kwgkb KZ©„K cÖ`Ë †iv‡q`v` ev Av‡`k Pyovš— ewjqv MY¨ nB‡e|

(6) Kwgkb KZ©„K cÖ`Ë †iv‡q`v` ev Av‡`k Ggbfv‡e Kvh©Ki nB‡e †hb Dnv †`Iqvbx Av`vj‡Zi GKwU wWµx|

(7) GB As‡ki Aaxb Kvh©aviv PjvKvjxb †h †Kvb mgq ev Dnv ïi“ Kwievi c~‡e© †h †Kvb mgq Kwgkb Z`KZ©©©„K h_vh_ we‡ewPZ AšÍeZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|ÕÕ

10. On a plain reading of the aforesaid provisions, it appears that proviso to section 40 stipulates an exception in that if the agreement executed prior to enactment of the Act, 2003, incorporates any condition for settling the dispute between the License and the Consumer that will prevail over the procedure provided in section 40 of the Act, 2003 and otherwise the procedure contained in section 40 is applicable in all the cases. Therefore, let us see as to whether the petitioner has any agreement prior to enactment of section 40 of the Act, 2003 and that whether it stipulates any condition for settling the dispute between the parties.

11. In the Anexure-A to the writ petition, we find that the PDB (the respondent No.1) issued a letter on 12.07.1998 approving the line on the basis of which the petitioner got the electricity connection. Although Mr. A. M. Masum, the learned Advocate for the respondent submits that this letter of approval is not an agreement within the requirement of proviso to section 40 of the Act, 2003 but we are of the view that since on the basis of this letter of approval containing certain conditions, the petitioner got the electricity line, in the absence of other document of formal agreement, this letter of approval has to be construed as an agreement between the respondent No.1 and the petitioner (License and Consumer respectively) for maintaining their electricity line and so, let us see whether it has provided any condition to settle the dispute between the parties. For better appreciation of the issue, we have thoroughly examined the letter of approval (Annexure-A) which is reproduced herein below:

Awdmt

wbev©nx cÖ‡KŠkjxi `ßi

weµq I weZib wefvM KvjyiNvU

PU«t †g‡U«vt, weD‡ev, PU«MÖvg

evsjv‡`k we`¨yr Dbœqb †evW©

BANGLADESH POWER DEVELOPMENT BOARD.

cÎ P‡g/weweKv/6.2/37 ZvwiL 12/07/98

e¨e¯’vcbv cwiPvjK,

‡gmvm© mv‡bvqvi wW«sKm GÛ

‡efv‡iR BÛvwó«R wjwg‡UW,

AvivKvb †ivW, PU«MÖvg|

welqt ga¨gPvc we`¨yr ms‡hvM Aby‡gv`b cÖms‡M|

Rbve,

D‡jwLZ wel‡qi Av‡jv‡K Avcbv‡K Rvbv‡bv hvB‡Z‡Q †h, Avcbvi Av‡e`‡bi ‡cÖw¶‡Z MZ 06-07-98 Bs Zvwi‡Li m~Î bs-39 †gvZv‡eK gvbbxq cÖavb cÖ‡KŠkjx, wZib `w¶bvÂj weD‡ev, PU«MÖvg KZ©„K ga¨gPvc MÖvnK wnmv‡e 200 wet It †jvW we`¨yr ms‡hv‡Mi Aby‡gv`b w`qv‡Qb| we`¨yr ms‡hvM MÖn‡bi c~‡e© wb‡gœ ewY©Z kZ©vejx gvwbqv Pjv nB‡e g‡g© GKwU AsMxKvibvgv AÎ `ß‡i †ck Kwi‡Z nB‡e|

K) ms‡hvwRZ †jvW Aby‡gvw`Z †jv‡Wi g‡a¨ mxwgZ ivLv|

L) we`¨yr AvBb, weD‡ev‡W©i †Uwic wewa Ges mg‡q mg‡q RvixK…Z Ab¨vb¨ wb‡`©kvejx gvwbqv Pjv|

M) MÖvnK AvswMbvq weD‡ev‡W©i ¯’vwcZ hš¿cvwZ wbivcËv MÖvnK KZ©„K wbwðZ Kiv| hš¿cvwZi †Kvb Awbó ev †Lvqv †M‡j Zvnvi ¶wZcyib cÖ`vb Kiv|

N) weD‡ev‡W©i cÖ‡qvR‡bi wcK-AvIqvi wewa wb‡la Ges †jvW †kwWs gvwbqv Pjv|

O) MÖvnK cÖv‡š— cvIqvi d¨v±i Kgc‡¶ 0.95(j¨vM) eRvq ivLv|

P) weD‡ev‡W©i Aby‡gv`b e¨ZxZ MÖvnK Dc‡K‡›`ªi cwieZ©b ev cwiea©b bv Kiv|

Q) MÖvnK AvswMbvq wgUvwis Gi Rb¨ weD‡ev‡W©i Pvwn`v †gvZv‡eK wgUvwis BDwbU ¯’vc‡bi Rb¨ webv fvovq GKwU ¯^Zš¿ K¶ cÖ`vb Kiv|

R) cÖwZôv‡bi gvwjKvbv cwieZ©b nB‡j Aek¨B bZyb Kwiqv Pyw³cÎ ¯^v¶i Kiv|

ga¨gPvc MÖvnK wnmv‡e 200 wKt IqvU †jvW ms‡hvM †bIqvi Rb¨ RvgvbZ wej eve` wej bs 01 UvKv 1,20,000,00(GK j¶ wek nvRvi) gvÎ| Ges gvjvgv‡ji LiP eve` wej bs 815 UvKv 14350/82 wba©vwiZ e¨vsK 27-07-98 Bs Zvwi‡Li c~‡e© cwi‡kva Kwi‡Z nB‡e| wej mg~n cwi‡kva Kwievi ci wewa Abyhvqx GbvwR© wgUvi ¯’vc‡bi cÖ‡qvRbxq e¨e¯’v MÖnb Kiv nB‡e|

ab¨ev`v‡š—,

¯^v/-A¯úó

12/07/98

wbe©vnx cÖ‡KŠkjx

weµq I weZib wefvM KvjyiNvU

12. On perusal of the aforesaid letter dated 12.07.1998 (Annexure-A), we do not find any condition within its four corners for settlement of dispute between the parties in any manner. Therefore, our considered view is that proviso to section 40 of the Act, 2003 is not applicable regarding this dispute as raised by the writ petitioner and that being so, the subject matter of the Rule Nisi as to determination of the impugned final bill has to be settled in accordance with the provisions of section 40 of the Act, 2003 read with the Regulations, 2014 in the light of the view enunciated in the case of Titas Gas (T&D) Company Limited Vs. Bangladesh Energy Regulatory Commission (BERC) represented by its Chairman and others reported in 5ALR -2015(I) page 292 and in an unreported judgment passed by a Division Bench in writ petition No. 16010 of 2012 wherein one of us was a party.

13. Although at the time of filing the writ petition this provision was not in existence and the petitioner had to file the writ petition but in the meantime the efficacious alternative forum having been provided for by section 40 of the Act, 2003 the petitioner has to avail himself of the said forum in accordance with the provisions therein.

14. With the above observations, the Rule Nisi is disposed of. The petitioner company may invoke the aid of section 40 of the Bangladesh Energy Regulatory Commission Act, 2003 read with the Bangladesh Energy Regulatory Commission Dispute Settlement Regulations, 2014 for settling the dispute between the petitioner and the respondent No.1.

Communicate the judgment and order to the respondents at once.

Ed.

Writ Petition No. 12086 of 2006

Santosh Kumar Chakraborty & others Vs. M.A. Motaleb Hossain and others

Case No: Civil Appeal No. 152 of 1983

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Rafique-ul-Huq,,

Citation: 36 DLR (AD) (1984) 248

Case Year: 1984

Appellant: Santosh Kumar Chakraborty & others

Respondent: M.A. Motaleb Hossain and others

Subject: Property Law,

Delivery Date: 1984-04-25

Santosh Kumar Chakraborty & others Vs. M.A. Motaleb Hossain and others
36 DLR (AD) (1984) 248

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Syed Md. Mohsen Ali J

Santosh Kumar Chakraborty & ors....................... Appellant
Vs.
M.A. Motaleb Hossain and ors..............................Respondent

Judgment:
April 25, 1984.

The Code of Civil Procedure, 1908 (V of 1908)
Order V, rules 17 & 19
The Civil Rules and Orders
Rule 91 (2)

Finding of the Trial Court having resulted from glaring misconception of law as well as non-consideration of material evidence, and as such is not immune from interference in revision under section 115 C.P.C. The High Court Division in the circumstances of the cases rightly interfered therewith…….(8)

Due to prior execution of the decree, proceeding under Order IX rule 13 do not become infractuous if otherwise found maintainable.

If the defendant has been directly tendered with the summons by the process server and on refusal of receipt of such summons by the defendant, no question of exercise of due diligence in the service arises and in that circumstances service by hanging is appropriate.

Cases Referred to-
Zahar Begum Vs. Razaul Quadir (1973) 25 DLR 91; Keshab Chandra Vs. Baliganj Estate 76 CWN 281.

Lawyers Involved:
Rafiq ul-Huq, Senior Advocate,(Md. Zaker Hossain, Advocate with him) instructed by Abu Backkar, Advocate-on-Record-For the Appellants.
Khondkar Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain Advocate-on-Record—For the Respondent No.1.

Civil Appeal No. 152 of 1983.
(From the judgment and order dated 4th March, 1982 passed by the High Court Division in Civil Revision No. 495 of 1981.)

Judgment:

Shahabuddin Ahmed J.- The questions that fall for determination in this appeal are whether the provisions as to enquiry, as contemplated in rule 19 of Order V of the Civil Procedure Code, are mandatory in all cases, such as, where there is a declaration by the serving officer that summons was duly served by him under rule 17 of the said Order, and whether the learned Judges of the High Court Division have correctly held that the trial Court made a declaration, under Rule. 19, that summons was duly served in this case.

2. This appeal is directed against the High Court Division's order dated 4 March 1982 in Civil Division No. 495 of 1981 reversing an order of the Subordinate Judge by which an ex parte decree dated 28 September 1974 was set aside under Order IX Rule 13 of the Civil Procedure Code. This ex parte decree was passed in Title Suit No 8 of 1974 of the 1st Court of Subordinate Judge. Dhaka, filed by the plaintiff-respondent against the defendants-appellants for specific performance of contract for sale of a premise in Dhaka Municipal area. The suit was filed on 7 January 1974 and was decreed ex parte on 28 September 1974 when the defendants, though served with notice as the record shows, did not appear to contest. The defendants challenged the decree by filing an application on 24 October 1975 alleging that no summons was served upon them but the summons was suppressed fraudulently. The plaintiff contested the application stating that the summons was duly served by the process server by hanging it on their door when the defendants refused to receive the summons by signing acknowledgment and further that the application was barred by limitation of about thirteen months as the defendants knew of the suit as early as on 10 May 1974 in connection with a Mutation Case filed by them in which the plaintiff filed an objection stating that be had filed the suit for specific performance of contract in respect of the same property. The trial Court on consideration of evidence of 3 witnesses for the defendants and 10 witnesses for the plaintiff set aside the ex parte decree on a finding that "the defendants were sufficiently prevented from appearing in the Court when the suit was taken up for hearing" and that there was no declaration from the court that summons was duly served. On a revisional application the learned Judges of the High Court Division interfered with this decision of the trial Court holding that the trial Court on erroneous view of law and fact arrived at the finding that there was no declaration from the court that summons was duly served, whereas, in fact, there was such a declaration.

3. Mr. Rafiq-ul-Huq, learned Advocate for the appellants contends that the provisions of an enquiry by examining the process server in Court are mandatory under rule 19 of Order V of the Civil Procedure Code, but the learned Judges of the High Court Division erroneously held that these provisions are discretionary. On this point the learned Advocate is not found to be correct. The learned Judges have pointed out, and we find correctly, that two classes of cases are contemplated in rule 19, that in one class of cases, examination of the process server is mandatory, and in another class of cases it is discretionary. Where the serving officer has returned the summons and has also made a declaration to the effect that he served the summons by affixation under rule 17, then, examination of the process server as a witness in Court is not mandatory, particularly when the ''proviso" to this rule shows that a declaration of the serving officer "shall be received as evidence of the facts as to the service or admitted service of the summons". In this case, admittedly the serving officer (O P.W. 6) made a declaration that he went to the defendants' house with the summons but the latter refused to receive the summons whereupon he served it by hanging it on the defendants' door in, presence of witness. But where there is no such declaration of the serving officer, examination of the serving officer as a witness is mandatory. For better appreciation of this provision, rule 19 is quoted below:
"19. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the declaration of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit."

4. Mr. Rafiq-ul-Huq in this connection refers to sub-rule (2) of rule 91 of the Civil Rules and Orders which provides that where service has been effected under rule 17 of Order V, it is incumbent upon the Court to make an enquiry and to record a declaration of due service. Enquiry for the purpose of recording a declaration as referred to does not necessarily mean that the serving officer shall be examined in Court, even when his declaration is there in record along with the service return. Rule 91 (2) of the Civil Rules and Orders must be read and considered along with rule 19 Order V, C.P.C. We therefore find that non examination of the process server in this case as a witness in the trial Court which passed the ex parte decree could not be a ground for holding that provisions of rule 9 were not complied with.

5. The next question is whether the second provision of rule 19, i.e. regarding the Court's declaration as to due service of summons has been complied with. This provision is mandatory, whether the serving officer is or is not required to be examined as a witness. The learned Judges have correctly construed this provision and observed that "again in both the cases it is mandatory on the Court to either declare that the summons has been duly served or orders such service, as it thinks fit". Contention of the learned Advocate for the appellant that the High Court Division erroneously held this provision to be discretionary is not based on careful reading of the High Court Division's judgment. The real controversy in respect of this provision is in which '"manner" or "form" the Court shall record a declaration that summons has been duly served. Mr. Rafiq-ul-Huq has contended that a specific and separate declaration is required to be made by the court and that mere recording in the order-sheet that 'summons has been served' is not sufficient compliance of this mandatory provision In support of this contention he has relied upon a decision of a learned Single Judge of the High Court Division in the case of Zohora Begum Vs. Razaul Quader, 25 DLR 91. The learned Judges in the instant case perused that decision and, disagreeing therewith, held that ''no particular form or manner has been prescribed in which a declaration under Order V, rule 19 C.P.C. shall he made by the Court". The learned Judges took the view that the recording by the trial Court in the order-sheet of the suit that summons has been served is sufficient compliance of the provision as to court's declaration that summons has been duly served, In fact when the service is returned with a declaration of the serving officer that he served the summons by hanging it on a conspicuous part of the- defendants' house or his place of work in presence of witnesses and if the Court perused the declaration along with the service return containing names of witnesses in whose presence summons was purportedly served and records his satisfaction that summons has duly served, then the mandatory provision of the rule as to declaration has been complied with. Leave was granted by us upon the submission that the entire provisions of rule 19 were held to be discretionary by the High Court Division, but in fact, this has not been done; the High Court Division in a well reasoned judgment explained various aspects of the provisions of this rule and found that the learned Subordinate Judge on misconception of law held that there was no declaration as to due service.

6. Khondkar Mahbubuddin Ahmed, learned Advocate for the respondents while defending the High Court Division's judgment contended that the very proceedings under Order IX, rule 13 C.P.C. became infructuous as the ex parte decree was fully satisfied through execution, that the necessary sale-deed was executed and registered by the court and possession of the land was also delivered as there was no order from the superior Court staying the Execution proceeding. Mr. Rafiq-ul-Huq however contends that the execution of an ex parte decree does not render the application for setting aside the ex parte decree infructuous, for, even after execution of the decree, the petitioner has got remedy by way of restitution under section 144 C P C; and in support of this contention, the learned Advocate has referred to a number of decisions particularly the decision in the case of Keshab Chandra Vs. Baliganj Estate Pvt. Limited, 76 CWN 281. We find substance in this contention and hold that the proceedings under Order IX, rule 13 did not become infructuous has earlier execution of the decree.

7. Khondkar Mahbuddin Ahmed has next referred to a number of glaring errors of law in the judgment of the learned Subordinate Judge. He has pointed out that the ex-parte decree was challenged on the ground of non-service of summons and the learned Subordinate Judge arrived at a finding that summons, was in fact served, but ''not duly" as the process server did not give the defendants" reasonable time and opportunity to receive the summons" as required under rule 17. The learned Advocate contends that there is no requirement of law for giving such opportunity when the defendants refused to receive the summons. It is clear that the provision of rule 17 has been misconceived by the learned Subordinate Judge in that this rule provides that if the defendant cannot be found the serving officer should exercise due diligence to find him out before serving the summons by hanging, but this provision is not applicable when the defendant has been found but he has refused to receive the summons. In such a case, no question of exercising due diligence arises and the summons may be served at once by affixation. The learned Advocate has next contended that the question of limitation was erroneously decided by the learned Subordinate Judge by omitting from consideration Ext. D, a written objection, filed by the respondent in Mutation Case No. 40 of 1973 between the same parties in respect of the same property. In that Mutation case, which was filed by the appellants themselves, the respondent filed the written objection on 10th May, 1974 stating that he had already filed a suit for specific performance of contract namely, the instant suit, whereupon his objection was heard on 28th May 1974. The ex parte decree was passed four months thereafter, and as such, the defendant had definite knowledge of the suit, the learned advocate further contends. The learned Subordinate Judge did not consider the impact of Ext. D but dismissed it as it referred to "a matter prior to the passing of the impugned decree’.

8. Mr. Rafiq ul-Huq contends that whether the summons was duly served or not is a question of fact and the finding arrived at by the trial Court on this question cannot be interfered with in revision. But this finding is found to have resulted from glaring misconception of law as well as non-consideration of material evidence, and as such is not immune from interference in revision under section 115 C.P.C. The High Court Division in frit circumstance rightly interfered therewith. The appeal from this judgment must fail. In the result, the appeal is dismissed without how ever any cost.
Ed.

Santosh Kumar Das Vs. Hajee Badiur Rahman

Case No: Civil Appeal No. 98 of 1998.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mustafa Niaz Muhammad,Dr. Rafiqur Rahman,,

Citation: 54 DLR (AD) (2002) 93

Case Year: 2002

Appellant: Santosh Kumar Das

Respondent: Hajee Badiur Rahman

Subject: Property Law,

Delivery Date: 2001-10-31

Santosh Kumar Das Vs. Hajee Badiur Rahman
54 DLR (AD) (2002) 93

Supreme Court
Appellate Division
(Civil)

Present:
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Md. Gholam Rabbani J
Md. Ruhul Amin J
Md. Fazlul Karim J

Santosh Kumar Das .............. Appellant
Vs.
Hajee Badiur Rahman......................Respondent

Judgment
October 31, 2001.

The Transfer of Property Act, 1882 (IV of 1882)
Section 106
Allowing more than one month’s notice to determine the tenancy has not contravened any of the provision of the Transfer of Property Act or the Premises Rent Control Ordinance.

Lawyers Involved:
Mustafa Niaz Muhammad, Advocate, instructed by Sharifuddin Chaklader Advocate-on-Record - For the Appellant.
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-Record — For the Respondent.

Civil Appeal No. 98 of 1998.

Judgment:

Md. Fazlul Karim J.- This appeal by leave is at the instance of plaintiff-appellant who filed the suit for ejectment, arrear of rents and compensation stating, inter alia, that the defendant-respondent was a monthly tenant at a rental of Taka 300 per month as per agreement dated 15-8-1971. Although the tenancy commenced from 15th August 1971 by mutual agreement between the parties the monthly rent was paid according to English calendar month upto month of September 1973. The premises was also required for bonafide use of plaintiff who have served notice under section 106 of the Transfer of Property Act on 18-1-1974 determining the monthly tenancy on the expiry of 28th day of February. 1974 by registered post which was refused by the defendant on 26-1-1974 whereupon the plaintiff was constrained to file the suit. Defendant respondent contested the suit asserting inter alia, no notice under section 106 of the Transfer of Property Act was served on him and the same is also invalid and illegal. He was not a tenant under the plaintiff in respect of the suit premises and he was not a defaulter as he has been depositing monthly rent in HR Case No. 30 of 1974 and the plaintiff has no bonafide requirement of the premises in question.

2. The trial Court decreed the suit and on appeal the same was affirmed. Thereafter the respondent moved the High Court Division in revision and the Rule was made absolute dismissing the suit disturbing the concurrent finding of fact as to notice under section 106 of the Transfer of Property Act.

3. On perusal of the impugned judgment it appears that the High Court Division arrived at the findings that:
“I have considered the above submissions of the learned Counsel for the opposite party. From his submission it is clear that he wants to down gave (sic) Exhibit 1, which is a bilateral document between the parties. If the contention of the learned Counsel for the opposite party is accepted that payment of rent was made according to the English calendar month, then it is not understood what prevented the opposite party from serving the notice under section 106 of the Transfer of Property Act terminating the tenancy with the expiry of the 15th day of the month. The learned Counsel for the opposite party has no possible explanation for this nor has he any explanation as to why Exhibit 2 was issued on 18-1-1974. In my opinion, the opposite party has been in a fix which path he will tread or which course he will follow in the matter of service of notice.”
“I am in full agreement what has been submitted by the learned Counsel for the petitioner. The opposite party is required to keep himself within the confines of Exhibit l. He cannot whimsically vary or alter its terms and conditions. He cannot work out a period of his own choice for termination of determination of the tenancy in utter violation of the terms as set further in Exhibit 1. So in my view. Exhibit 2 is not a valid and legal notice under section 106 of the Transfer of Property Act in the matter of determination and termination of the tenancy of the petitioner. In view of the facts and circumstances of the case and for the reasons stated above, the judgment and decree complained of are not tenable in law. They, therefore, are set aside and the suit of the opposite party dismissed.”

4. Thereafter, leave was granted to consider that “Mr. Mustafa Niaz Muhammad, learned Advocate appearing for the appellant, submits that the learned Single Judge of the High Court Division erred in law in not finding that in either view of the matter i.e., terms of contract Exhibit I dated 15-8-1971 which speaks for 1 (one) month’s notice for terminating tenancy and provision of section 106 of the Transfer of Property Act regarding notice in the absence of contract, the requirement of law has been complied with. The notice under section 106 of the Transfer of Property, Exhibit 2 having been issued on 18-1-1974 terminating the tenancy with the expiry of 28th day of February 1974 is legal and valid.”

5. Mr. Mostafa Niaz Mohammad, the learned Advocate for the Appellant, has submitted that in view of the covenant in Exhibit 1 dated 15-8-71 providing one month’s notice for terminating tenancy, the notice under section 106 Transfer of Property Act Exhibit 2 having been issued on 18-1-74 terminating tenancy with the expiry of 28-2-74, the High Court Division erred in law in not holding the tenancy has been terminated with the service of notice under section 106 Transfer of Property Act.

6. The respondent who has not filed any concise statement in the appeal is represented by Dr Rafiqur Rahman, the learned Counsel who though could not repeal the submission of the learned Advocate for the appellant but faintly sought to support the impugned Judgment submitting that if the tenancy commenced on 15th August, 1971 it has to be determined on service of notice for one month and such notice dated 18-1-74 determining tenancy with the expiry of 28th February, 1974 is not a proper and valid notice determining tenancy.

7. Agreement between the parties provides, inter alia, in clause (4) that. “The tenancy of the 2nd party shall terminate with one month’s notice from the 1st party and similarly, the 2nd party also shall give one months notice to the 1st party in case he wants to vacate the premises close the 2nd party shall be liable to pay rent in lieu of notice.” The aforesaid clause speaks for one month’s notice in order to terminate the tenancy.

8. In the instant case pursuant to clause (4) above a notice dated 18-1-1974 was served upon the respondent-tenant determining the tenancy with effect from 28th day of February 1974 and though the period of notice dated 18-1-1974 determining the tenancy with effect from 28-2-1984 was more than period of 30 days contemplated by Exhibit 1 the same do not in any way prejudice the petitioner or suffer from any illegality or infirmity in the service of notice determining the tenancy and is in consonance with the terms of Exhibit 1 and the provision of law in spite of the fact that the payment of rent was according to the English calendar month and only 15 days’ notice is required for determination and termination of the tenancy under the provision of section 106, Transfer to Property Act. In that view of the matter allowing more than one month’s notice to determine the tenancy has not contravened any of the provision of the Transfer of Property Act or the Premises Rent Control Ordinance or the terms of Exhibit 1 as there was no alteration or variation thereof and the same is valid compliance with the agreement between the parties and thus the notice determining the tenancy is also a valid one.

9. The High Court Division in revision could interfere with the concurrent findings of fact the Courts below only on the ground of error of law resulting in an error in the decision occasioning failure of justice. The findings of the Courts below based on consideration of the evidence on record is not liable to be interfered with in revision. The revisional power exercised by the High Court Division is discretionary and is to be exercised to prevent error of law occasioning failure of justice. But in the instant case the High Court Division wrongly construed the terms of Exhibit I in its finding that the notice under section 106, Transfer of Property Act is not a valid and legal notice. Thus, the impugned judgment and order of the High Court Division suffers from illegality and infirmity.

10. In view of the above, the impugned judgment of the High Court Division is not sustainable in law and accordingly, the same is liable to be set aside.
In the result, this appeal is allowed without costs setting aside the impugned judgment of the High Court Division and restoring those of the Courts below decreeing the suit.
Ed.

Sardar Mohammad Abdur Rahman Vs. Janata Bank & ors., (Md. Abdul Wahhab Miah, J.)

Case No: CIVIL APPEAL No. 202 OF 2011

Judge: Md. Abdul Wahhab Miah, J Nazmun Ara Sultana, J Muhammad Imman Ali, J, Md. Nizamul Hoq, J

Court: Appellate Division ,

Advocate: Mr. Mahbubey Alam, Senior Advocate with Mr. Shamim Khaled Ahmed, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record,

Citation: 2018(2) LNJ (AD)

Case Year: 2016

Appellant: Sardar Mohammad Abdur Rahman, Proprietor of Messer S.M.R. Plastic Works being dead his heirs; (1) Mamtaz Rahman and others

Respondent: Janata Bank, Janata Bank Bhaban, Motijheel Commercial Area, Branch office, Dhaka and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-02

APPELLATE DIVISION

(CIVIL)

Md. Abdul Wahhab Miah, J

Nazmun Ara Sultana, J

Muhammad Imman Ali, J,

Md. Nizamul Hoq, J

Judgment on

23.08.2016

}

}}

}

Sardar Mohammad Abdur Rahman, Proprietor of Messer S.M.R. Plastic Works being dead his heirs; (1) Mamtaz Rahman and others

. . . Appellant

-Versus-

Janata Bank, Janata Bank Bhaban, Motijheel Commercial Area, Branch office, Dhaka and others

. . . Respondent

Code of Civil Procedure (V of 1908)

Order XXI, Rules 89 and 90

Both the Courts below totally failed to consider the cause title of the application in question, the averment made therein and misconceived and misconstrued the provision of Order XXI, rule 90 of the Code in holding that the same was filed under Order XXI, rule 89 and not under Order XXI, rule 90 of the Code and this mislead them to reject the application of the judgment-debtor. Since in the cause title of the application in question the provisions of Order XXI, rule 90 of the Code was specifically mentioned, there was no scope on the part of the Court to construe it otherwise. It is needless to state that to file an application under Order, XXI, rule 90 of the Code, no deposit as required by rule 89 of Order XXI of the Code was necessary. The impugned judgment and order affirming the order of the executing Court and the Appellate Court is set aside. The application filed by the judgment-debtor, the predecessor-in-interest of the appellants under Order XXI, rule 90 of the Code is allowed and the auction sale is set aside. Since the auction purchaser, respondent No.2 has been in possession of the auction sold property initially as a fvovwUqv and then as the so-called auction purchaser and as submitted by Mr. Alam, respondent No.2 has not paid any rent for all these period, he needs not be paid any compensation or any solatium over the auction money deposited by him in Court. However, he is entitled to get back the money deposited by him as the auction purchaser. We direct the executing Court to hold fresh auction of the mortgaged property in due compliance with the provisions of law. . . . (13 and 15)

For the Appellants : Mr. Mahbubey Alam, Senior Advocate with Mr. Shamim Khaled Ahmed, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record

For the Respondent No.1: Mr. A.J Mohammad Ali, Senior Advocate with Mr. M. Khaled Ahmed, Advocate instructed by Mr. Mohammad Abdul Hai, Advocate-on-Record

Respondent No.2: Mr. T.H Khan, Senior Advocate with Mr. Faruque Ahmed, Advocate with Mr. Faisal Hossain Khan, Advocate instructed by Mr. Md. Aziz Taufique, Advocate-on-Recored

JUDGMENT

Md. Abdul Wahhab Miah, J: This appeal, by leave, is from the judgment and order dated the 18^th day of March, 2010 passed by a Division Bench of the High Court Division in Civil Revisi6n No.4201 of 2005 discharging the Rule.

2. Facts necessary to dispose this appeal are that respondent No. 1 as the plaintiff instituted Title Suit No.211 of 2001 in the 1^st Court of Joint District Judge, Dhaka against the predecessor-in-interest of the appellants for realization of money under the Artha Rin Ain, 1990 (the Ain, 1990). The suit was decreed ex-parte on 10^th April, 2002 and then Money Execution Case No. 176 of 2002 was levied in the Court of Joint District Judge and Artha Rin Adalat No.l, Dhaka. In execution of the decree, the mortgaged property was sold in auction. Respondent No.2, Haji Md. Ayub Khan, purchased the mortgaged property in auction. Before the sale, an agreement was entered into between the predecessor-in-interest of the appellant (hereinafter referred to as the judgment-debtor) and respondent No.2, the auction purchaser, in respect of the mortgaged property stipulating that he (respondent No.2) would pay Tk. 1,50,00,000.00 within December, 2004 in the judgment-debtor’s loan account with respondent No.l Bank and then on the handing over the receipt of such payment the judgment-debtor would execute and register the sale deed in his favour, but respondent No.2, judgment-debtor purchased the mortgaged property in auction by misleading the Court and beyond the knowledge of the judgment-debtor.

3. In the circumstances the appellant made an application under Order XXI, rule 90 of the Code of Civil Procedure (the Code) in the Court of Joint District Judge and Artha Rin Adalat No.l, Dhaka (hereinafter referred to as the Executing Court) for setting aside the auction sale stating, inter alia, the facts as stated hereinbefore on the ground that the respondents in collusion with each other sold the mortgaged property worth taka 1,50,00,000.00 at an undervalue of taka 34,00,000.00 only and this undervalued auction sale was also admitted by the decree holder respondent No.l, Bank as it filed an application before the executing Court to reject the result of the auction sale held on 01.09.2004 and to hold fresh auction but the application was rejected.

4. The application was registered as Miscellaneous Case No.43 of 2004. The Executing Court by its order dated 26.06.2005 disallowed the miscellaneous case on the finding, inter alia, that nowhere in the application the judgment-debtor stated anything as to the irregularity in holding the auction sale, he did not deposit the auction sale price along with the compensation as required by rule 89 of Order XXI of the Code. It further observed that though the application was filed under Order XXI, rule 90, it was alike an application under Order XXI, rule 89 of the Code, but the judgment-debtor did not make the deposit as required by the said provision of law. Against this order of rejection, the appellant preferred Miscellaneous Appeal No.283 of 2005 before the District Judge, Dhaka and the learned District Judge by the order dated 17^th August, 2005 summarily dismissed the appeal on the ground of maintainability. Against the order of the learned District Judge, the appellant moved the High Court Division in Civil Revision No.4201 of 2005. A Division Bench by the impugned judgment and order discharged the Rule issued in the revision.

5. Being aggrieved by and dissatisfied with the judgment and order of the High Court Division, the appellants who are the legal heirs of the judgment-debtor filed Civil Petition for Leave to Appeal No.2524 of 2010 before this Court and leave was granted by this Court to consider the following grounds:

"I. Because the contents of the petition clearly attract Order 21, rule 90 of the Code of Civil Procedure, inasmuch as, the claim of the petitioners is that a residential house in the Dhaka City was sold at a shockingly low price of Tk.34,00,000/- and thus, the petitioners are not required to deposit security money as is required in an application under Order 21, rule 89 of the Code of Civil Procedure.

II. Because the High Court Division failed to consider that substantial injury has been caused to the petitioners if the sale is not set aside, inasmuch as, suit property is situated in the heart of the city and it has been sold in auction at a shockingly low price and as such, it is liable to be set aside for ends of justice.

IV. Because from the materials on record it transpires that fraud has been practiced in conducting the sale of the mortgaged property and thereby the Courts below as well as the High Court Division committed error of law in not setting aside the sale on the ground of non-deposit of 50% of the decretal amount in failing to notice that in case of illegality of sale of property on the ground of fraud in conducting the sale of mortgaged property no deposit of a portion of the decretal amount is necessary."

6. Mr. Mahbubey Alam, leaned Counsel, appearing for the appellants has, in fact, canvassed the grounds on which leave was granted. He has further submitted that the Executing Court erred in law in holding that the application filed before it was one under Order XXI, rule 89 of the Code, though, in the cause title of the application the provision of Order XXI, rule 90 of the Code was clearly mentioned and the High Court Division also on total non application of mind to the cause title of the application, averment made therein, affirmed the said view of the Executing Court. He has further submitted that the very allegation made in the application that the property worth taka 1,50,00,000.00 was sold at taka 34,00,000/- (thirty four lac) only, clearly proved that fraud was committed in holding the auction sale and such allegation squarely attracts the provision of Order XXI, rule 90 of the Code. Mr. Mahbubey Alam, also pointed out that although in the application it was specifically stated that the auction purchaser, respondent No.2 was a ÕfvovwUqvÕ under the judgment-debtor and there was an agreement between them to sell the mortgaged property at taka 1,50,00,000.00 (one corer fifty lac) and respondent No.2 (the auction purchaser) agreed to pay the said amount to the Bank by December, 2004 and then to produce the receipt of such payment to the judgment debtor who in turn would execute and register a sale deed in his favour, but he did not make the payment to the Bank and collusively held the auction sale of the mortgaged property and purchased the same at taka 34,00,000.00 only and thus caused substantial loss (ÿwZMÖ¯’) to him, but in the written objection filed by respondent No.2, the said facts were not at all denied which showed that the allegations made in the application were true and thus fraud was established within the meaning of Order XXI, rule 90 of the Code, the High Court Division erred in law in passing the impugned judgment and order and as such the same is liable to be set aside and the appeal be allowed.

7. Mr. T. H Khan, learned Counsel for respondent No.2 has submitted that there are two ways to challenge an exparte decree, one by filing an appeal under the Ain, 1990 and the other by filing an application under Order IX, rule 13 of the Code (it may be stated that the exparte decree in the suit was passed under the Ain, 1990) and in both the cases, deposit of 50% of the decretal amount is a must, so the application under Order XXI, rule 90 of the Code for setting aside the auction sale was not maintainable in law, the High Court Division rightly refused to interfere with the order of the Executing Court. And in support of his contention, he referred the case of Nur Islam (Md) Vs Agrani Bank 49 DLR (AD) 135.

8. Mr. Faruque Ahmed, learned Counsel appearing on behalf of respondent No.2 in addition to the submission of Mr. T.H Khan has submitted that in holding the auction sale, no irregularity was committed and the sale was held following the procedures as laid down in the Code. He has supported the reasoning given by the Executing Court in rejecting the application of the judgment-debtor.

9. Mr. A. J Mohamad Ali, learned Counsel appearing for the Bank has also made similar submissions as made by Mr. T.H Khan and Mr. Faruque Ahmed stating further that if the application filed in the Executing Court is read as a whole it would appear that this was really an application under Order XXI, rule 89 of the Code, because no allegation of fraud was alleged specifically in the application. Therefore, he submits that no illegality was committed by the High Court Division in affirming the order passed by the Executing Court rejecting the application filed under Order XXI, rule 90 of the Code.

10. So far as the submission made by Mr. Khan is concerned, we have gone through the decision referred by him. The decision is not at all applicable in the facts and circumstances of the instant case, in view of the fact that the judgment-debtor did not challenge the exparte decree passed in the suit, he challenged the auction sale of the mortgaged property on the ground of fraud.

11. We have considered the application filed before the executing Court which is in the paper book. A mere look at the cause title of the application shows that the provision of Order XXI, rule 90 of the Code was specifically mentioned therein. Therefore, we do not find any substance in the submission of Mr. Faruque Ahmed as well as Mr. A. J. Mohammad Ali that the application in question was filed under Order XXI, rule 89 of the Code and not under Order XXI, rule 90.

12. It further appears that in the application, it was specifically stated that the mortgaged property valued at taka 1,50,00,000.00 was sold in auction at Tk.34,00,000/- (thirty four lac) only which was a shockingly low price. And neither the Bank nor the auction purchaser even attempted to dislodge the said allegation made in the application in any manner. We are of the view that this very allegation constitute a prima facie element of fraud. In the context, it is pertinent to state that in the written objection filed by the auction purchaser, he only gave a general denial of the statements made in the application under Order XXI, rule 90 of the Code including the value of the auction sold property, and under the head actual facts, nothing was said about the value of the auction sold property. It is also very interesting to state that although in the application filed under Order XXI, rule 90, it was specifically asserted that the auction purchaser was a Bharatia under the judgment-debtor and that in the early part of 2003, he entered into an agreement with the judgment-debtor to purchase the auction sold property at taka 1,50,00,000.00 stipulating that he would pay the said amount to the plaintiff Bank by December, 2004 and then would hand over the receipt of such payment and on such handing over the judgment-debtor would execute and register the sale deed in his favour (the auction purchaser) and that as per terms of the said agreement, the auction purchaser was bound to make the payment to the decree holder Bank, but he did not make the payment, rather collusively managed to sell the mortgaged property in auction at a shockingly low price of taka 34,00,000.00 only beyond his knowledge, violating the terms of the agreement and these facts were not denied by the auction purchaser. It further appears that in the application, it was further stated that the decree holder respondent No.l itself filed an application in the execution Court for rejecting the auction sale held on 10.09.2001 and for holding fresh auction, but the application was rejected by the Court and this fact was not also denied either by the decree holder Bank or by the auction purchaser, respondent No.2 and these facts prima facie substantiated that fraud was committed in holding the auction sale.

13. Be that as it may, we have given our anxious thought over the overall facts and circumstances of the case and the allegation made in the application under Order XXI, rule 90 of the Code that the property valued at taka 1,50,00,000.00 was sold at taka 34,00,000.00 only. It prima facie appears to us that both the Courts below i.e. the Executing Court and the High Court Division totally failed to consider the cause title of the application in question, the averment made therein and misconceived and misconstrued the provision of Order XXI, rule 90 of the Code in holding that the same was filed under Order XXI, rule 89 and not under Order XXI, rule 90 of the Code and this mislead them to reject the application of the judgment-debtor. We are of the view that since in the cause title of the application in question the provisions of Order XXI, rule 90 of the Code was specifically mentioned, there was no scope on the part of the Court to construe it otherwise. It is needless to state that to file an application under Order, XXI, rule 90 of the Code, no deposit as required by rule 89 of Order XXI of the Code was necessary.

14. For the discussions made above, we find merit in the appeal and the same is allowed.

15. The impugned judgment and order affirming the order of the executing Court and the Appellate Court is set aside. The application filed by the judgment-debtor, the predecessor-in-interest of the appellants under Order XXI, rule 90 of the Code is allowed and the auction sale is set aside. Since the auction purchaser, respondent No.2 has been in possession of the auction sold property initially as a fvovwUqv and then as the so-called auction purchaser and as submitted by Mr. Alam, respondent No.2 has not paid any rent for all these period, he needs not be paid any compensation or any solatium over the auction money deposited by him in Court. However, he is entitled to get back the money deposited by him as the auction purchaser. We direct the executing Court to hold fresh auction of the mortgaged property in due compliance with the provisions of law.

Ed.

CIVIL APPEAL No. 202 OF 2011

(From the judgment and order dated the 18^th day of March, 2010 passed by the High Court Division in Civil Revision No.4201 of 2005)

Sarkar Flour & Rice Mills Ltd. & another Vs. Bangladesh & others, 3 LNJ AD (2015) 20

Case No: Civil Petition Nos. 2453-2454 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Rokanuddin Mahmud,Mr. Ajmalul Hossain QC,,

Citation: 3 LNJ AD (2015) 20

Case Year: 2014

Appellant: Sarkar Flour & Rice Mills Ltd. & another

Respondent: Bangladesh & others

Delivery Date: 2013-07-29

APPELLATE DIVISION
(CIVIL)

Md. Muzammel Hossain, C.J
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Syed Mahmud Hossain, J
AHM Shamsuddin Choudhury, J.

Judgment on
29.07.2013

Sarkar Flour & Rice Mills Ltd.
. . .Petitioner
(In C. P. No. 2453/10).
Zayeda Cold Storage Ltd.
. . .Petitioner
(In C. P. No. 2454/10).
-Versus-
Bangladesh Bank and others
. . . Respondents.

Bank Companies Act (XIV of 1991)
Section 25
It is contended on behalf of the petitioners that the provisions of BRPD circular No. 1 dated 13-01-2003 being directive issued by respondent No. 1 are mandatory and are required to be followed by all the schedule bank’s including the respondent No. 4 bank under section 25 of the Bank Companies Act, 1991 and by not rescheduling the liabilities of the petitioners despite the down payment of the required amount, the respondent No. 4 acted in violation of the provisions of the said circular and hence the impugned judgment should be set aside.
The High Court Division has found that the petitioners have failed to repay the loan in spite of getting reschedulement and extension of validity period on several occasions. Taking into consideration of the financial condition etc. of the petitioners, the City Bank Ltd. took decision not to grant any more reschedulement of the petitioners outstanding loans which calls for no interference. . . . (11 and 14).

For the Petitioners: Mr. Rokanuddin Mahmud, Senior Advocate, instructed by Mr. Bivash Chandra Biswas, Advocate-on-Record.

For the Respondents: Mr. Ajmalul Hossain, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record.

Civil Petition Nos. 2453-2454 of 2010

JUDGMENT

Syed Mahmud Hossain, J:

These civil petitions for leave to appeal are directed against the judgment and order dated 03.06.2010 passed by the High Court Division in Writ Petition Nos. 4334 and 4339 of 2008 discharging the Rules in both the writ petitions.

Both the civil petitions for leave to appeal involving similar questions of laws and almost identical facts having been heard together are now disposed of by this common judgment.

The relevant facts for the purpose of disposal of these civil petitions for leave to appeal are as follows:

Both the petitioners-companies of these writ-petitions were sanctioned various loan facilities by respondent No.5 bank under different sanction letters during the period from March, 2003 to March, 2007. The total amount of loan sanctioned to the Sarkar Flour and Rice Mills Ltd. was Tk. 22.10 crore and the total amount of loan sanctioned to Zayeda Cold Storage Ltd. was Tk. 4.00 crore and in all those loan transactions petitioner No. 2 furnished personal guarantee along with other securities to secure the repayment of the loans. But because of certain unavoidable circumstances both these companies failed to maintain their repayment schedules. In such situation, a Memorandum of Agreement dated 22.04.2007 was entered into between respondent Nos.4 and 5 and petitioner No.2 stood as the guarantor of the said loans. Under the terms and conditions of the said agreement, the outstanding liabilities of Sarkar Flour & Rice Mills Ltd. were fixed at Tk. 11.07 crore and those of Zayeda Cold Storage Ltd. were fixed at Tk. 4.20 crore and respondent No.5 bank issued sanction letters dated 21.06.2007 on the basis of that memorandum of understanding. But petitioner No.2 detected that the installments mentioned in the said sanction letter included interest calculated on compounded basis and not on simple interest basis as agreed upon in the said memorandum of understanding. Consequently there was exchange of corresp-ondences between the petitioners and the representatives of respondent No.4 bank and finally it was understood by the parties that the loan liabilities of both the petitioner companies would be rescheduled upon down payment. Accordingly, respondent No.4 bank issued a letter dated 08.01.2008 to petitioner No. 2 asking him to make down payment of Tk. 7500000/- for rescheduling the loans of both the companies. Petitioner No.2 paid Tk. 7500000/- as down payment from which Tk. 5400000/- was credited to the loan accounts of Sarkar Flour & Rice Mills Ltd. and Tk. 2400000/- credited to the loan account of Zayeda Cold Storage Ltd. and also submitted a proposal for rescheduling the liabilities of both the companies by his letter dated 13.02.2008. But respondent No.4 bank again by a letter dated 25.02.2008 requested petitioner No.2 for payment of further Tk. 6600000/- for rescheduling the loans of both the companies. Petitioner No.2 paid that amount also of which Tk. 3800000/- was credited to the loan account of Zayeda Cold Storage Ltd. Thus the total amount paid by petitioner No.2 exceeded 10% of the total liabilities of both the petitioners-companies. But notwithstanding the fact that petitioner No.2, on behalf of both the petitioners- companies paid required amount as down payment respondent No.4 failed to take any steps towards rescheduling the liabilities of the petitioners-companies. Rather without any prior notice or intimation to the petitioners, respondent No. 4 on 21.04.2008 caused publi-cation of newspaper notice for auction sale of the mortgaged properties of the petitioners for which the petitioners had to file Writ Petition Nos. 3464 and 3466 of 2008 and got orders of stay against that auction sale. Respondent No.4 bank also circulated a memo dated 28.04.2008 amongst all banks and financial institutions describing the petitioners as defaulting clients stating that their amounts have been classified. Respondent No.4 also informed that to the Credit Information Bureau. After that, respondent No.4 bank instituted Artha Rin Suit Nos. 2 and 7 of 2008 in the Artha Rin Adalat, Rajshahi against the petitioners for realization of outstanding loan in spite of the fact that the petitioners were entitled to get their liabilities rescheduled as per BRPD circular No.1 dated 13.01.2003.

The petitioners have submitted that BRPD circulation No.1 dated 13.01.2003 issued by the Bangladesh Bank has laid down some guidelines/directives which are required to be followed by all scheduled banks while considering applications for re-schedulement of loans. Clause 1.02(Ka) of this BRDP circular No.1 has provided that an application for rescheduling shall be considered by a bank upon payment by the borrower of either 15% of the overdue installments or 10% of the total liability, whichever is less. The down payments made by petitioner No.2 upon the request of respondent No.4 exceeds 10% of the total loan liabilities of both the borrower companies and thus according to the terms of BRDP circular No.1 of 2003, the petitioner companies are entitled to have their liabilities rescheduled. In the circumstances, petitioner No.2 caused service of notices demanding justice dated 28.05.2008 upon respondent Nos.1 and 4 asking for compliance with BRPD circular No.1 of 2003 and rescheduling of the liabilities but did not get any response. Section 45 of the Bank Companies Act, 1991 has conferred powers upon respondent No.1 to issue directives for the proper management of the bank companies and it is mandatory for the bank companies to comply with such directives. The BRPD circular No.1 dated 13.01.2003 contains such directives of Bangladesh Bank and it is mandatory for all he scheduled banks to comply with the directives of this BRPD circular No.1 of 2003. If any bank does not comply with these directives of BRDP circular No.1 of 2003 it is incumbent upon Bangladesh Bank to issue specific direction to that bank for compliance with the directives of this BRPD circular.

Respondent No.4 has acted in breach of the mandatory provisions of BRPD circular No.1 dated 13.01.2003 by failing to reschedule the liabilities of the petitioners- companies in spite of their making down payment of more than the required amount for re-schedulement. Therefore, the Bangladesh Bank is now duty bound to take such action as is necessary to ensure compliance with the provisions of the BRPD by respondent No.4 bank so that the liabilities of the petitioners-companies with the respondent No.4 bank are rescheduled.

Being aggrieved by and dissatisfied with the BRPD circular No.1 dated 13.01.2003 issued by the writ-respondent No.4, the writ-petitioners moved the High Court Division by filing Writ Petition Nos. 4334 and 4339 of 2008 and obtained Rules Nisi in both the writ-petitions.

Writ-respondent Nos. 4 contested both the Rules by filing affidavits-in-opposition controverting the material statements made there. Writ-respondent No.4 took the plea that BRPD circular No.1 of 2003 was directory and not mandatory in character.

The learned Judges of the High Court Division upon hearing the parties discharged both the Rules by the impugned judgment and order dated 03.06.2010.

Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the writ-petitioners in both the writ-petitions have filed Civil Petitions for Leave to Appeal Nos. 2453 and 2454 of 2010 before this Division.

Mr. Rokanuddin Mahmud, learned Senior Advocate, appearing on behalf of the leave-petitioners in both the civil petitions for leave to appeal, submits that the High Court Division failed to appreciate that the provisions of BRPD circular No.1 dated 13.01.2003 being directive issued by respondent No.1 are mandatory and are required to be followed by all scheduled banks including respondent No.4 bank under section 25 of the Bank Companies Act, 1991 and as such the impugned judgment should be set aside. He further submits that by not rescheduling the liabilities of the leave-petitioners despite the down payment of the required amount as requested, respondent No.4 has acted in violation of the provisions of BRPD circular No.1 dated 13.01.2003.

Mr. Ajmalul Hossain, learned Senior Advocate, appearing on behalf of the respo-ndents in both the leave petitions, on the other hand, supports the impugned judgment.

We have considered the submissions of the learned Advocates of both the parties, perused the impugned judgment and the materials on record.

The High Court Division came to a finding that the petitioners have failed to repay the loan of respondent No. 4, City Bank Ltd. in spite of getting re-schedulement and extension of validity period on several occasions. The High Court Division noted that the contesting respondent in its affidavit-in-opposition stated that considering the present financial condition, repayment record and management of the loanee companies and also the liabilities of the loanee companies with other financial institutions, the City Bank Ltd. took decision not to grant any more re-schedulement of the outstanding loans of this petitioners-companies. The High Court Division found that respondent No.4 has also stated that the petitioners-companies did not submit any proper application with Board Resolution for re-schedulement of outstanding loans.

Having considered the affidavit-in-opposition of respondent No.4, the High Court Division found that loan granting bank already instituted Artha Rin Suit against the loanee companies, the guarantor and others for realization of outstanding loan and that the petitioners could make proper prayer for settlement/compromise with the loan granting bank in those suits. The High Court Division took notice that the Artha Rin Adalat Ain,2003 has kept specific provisions for taking initiatives for settlement of dispute between the plaintiff /financial institution and the defendant, loanees, guarantors and others.

The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of laws and facts do not call for interference. Accordingly, both the civil petitions for leave to appeal are dismissed.

End.

Sarwar Alam Chowdhury & others Vs. Bangladesh and others, 4 LNJ (2015) 619

Case No: Writ Petition No. 2102 of 2002

Judge: J. N. Deb Choudhury,

Court: High Court Division,,

Advocate: Mr. Titus Hillol Rema,Mr. S. Rashed Jahangir,Mr. Md. Afzal Hossain,,

Citation: 4 LNJ (2015) 619

Case Year: 2015

Appellant: Sarwar Alam Chowdhury & others

Respondent: Government of Bangladesh and others

Subject: Abandoned Property,

Delivery Date: 2015-05-27

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Zinat Ara, J
And
J. N. Deb Choudhury, J

Judgment on
27.05.2015

Sarwar Alam Chowdhury being dead his legal heirs: 1(ka) Fazilatun Nessa Mimi and others
…Petitioners

Versus

Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Housing and public Works & others.
. . . Respondents

Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985)
Section 5(2)
The enlistment of the disputed property under the Ordinance raises a presumption in law that the property is an abandoned property under section 5(2) of the Ordinance. This presumption is, of course, a rebuttable presumption. . . . (20)

Constitution of Bangladesh, 1972
Article 102
Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985)
Section 5
The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the petitioners. It is immaterial whether the disputed property was listed in the ‘ka’ or ‘kha’ list, it is the abandoned character of the property which is the main criteria for determining the whole matter. . . .(20)

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. 16 of 1972)
Article 2
Petitioners failed to prove their case that their vendor Md. Ehsanul Hoque was the heir of the original allottee Syed Abdus Sattar and that Syed Abdus Sattar or his legal heir had occupied, managed or supervised the property in question on or after 28.02.1972 and the same was rightly listed as abandoned property. . . .(21)

53 DLR (AD) 55; 54 DLR (AD) 100; 45 DLR 416; 48 DLR (AD) 10; 3 BLC (AD) 42; 61 DLR (AD) 15; 49 DLR (AD) 161; 59 DLR (AD) 165; Bangladesh Vs. Amela Khatoon and others, 53 DLR (AD) 55; Bangladesh and others Vs. Bibi Marium and other, 54 DLR (AD) 100; Bangladesh Vs. Amela Khatun and other, 53 DLR (AD) 55; Iqbal Ahmed Quraishi Vs. Bangladesh, 45 DLR 416; Government of Bangladesh Vs. Md. Jalil and others, 48 DLR (AD)10; Hazerullah and another Vs. Chairman, 1^st Court of settlement and another, 3 BLC (AD) 42 and Government of Bangladesh Vs. Ashraf Ali @ Ashraf Ali and another, 49 DLR (AD) 161 ref.

Mr. Md. Afzal Hossain, Advocate
....For the petitioners.

Mr. S. Rashed Jahangir, D.A.G with
Mr. Titus Hillol Rema, A.A.g.
....For the respondent No.1

Writ Petition No. 2102 of 2002

JUDGMENT

J.N. Deb Choudhury, J :

On an application under article 102 of the Constitution of the People’s Republic of Bangladesh made by the petitioners, this Court on 04.05.2002 was pleased to issue a Rule Nisi in the following terms:

“Let a Rule Nisi issue calling upon the respondents to show cause as to why the impugned judgment and order dated 31.07.2000 passed by the respondent No. 2 as contained in Annexure I to the writ petition should not be declared without lawful authority and of no legal effect and why the disputed Plot No. 13/A/A/1^stColony Mirpur, Dhaka should not be released from the “ka” list of the abandoned building as published in the Bangladesh Gazette Extra Ordinary on 23.09.1986 and pass such other or further order or orders as to this Court may seem fit and proper.”

Relevant facts necessary for disposal of this Rule, in brief, is that, the predecessor-in-interest of the vendor of the petitioners, Syed Abdus Sattar was allotted a house at the Mirpur Coloney, popularly known as Mirpur 1^st Coloney vide agreement dated 24.07.1953 (Annexure-A to the writ petition). Thereafter, Syed Abdus Sattar while was in peaceful possession of the said property died on 25.03.1971 leaving behind his only nephew Md. Ehsanul Hoque as his heir and since then Md. Ehsanul Hoque was in peaceful possession of the property in question without any hindrance from any quarter. Thereafter, the petitioner’s vendor Md. Ehsanul Hoque sworn an affidavit before the Magistrate, 1^st Class, Dhaka on 19.05.1979 to the effect that he is the only surviving heir of late Syed Abdus Sattar, the original allottee under the Muslim Personal Law and he also obtained a succession certificate on 14.04.1979 in Succession Certificate Case No. 241 of 1979 from the 3^rd Court of Subordinate Judge, Dhaka for the purpose of recovering loan money left by Syed Abdus Sattar from one Mr. Md. Nazrul Islam amounting to Tk. 925.00 (Annexure-B1 to the writ petition). The writ petitioners also stated that on 25.05.1979 they purchased the said property being House No. 13/A/A, Mirpur 1^st Coloney under police Station Mirpur, Dhaka by two registered sale deeds from Md. Ehsanul Hoque and since the date of purchase the petitioners are paying all rent, taxes, bill etc. to the Revenue Office, WASA, DESA and City Corporation and their names were duly recorded in the Government Revenue Office and in the recent land survey conducted by the Government and thereby possessing the said property peacefully; but, the Government most illegally enlisted the property in question in the abandon property ‘Ka’ list, published in the official Gazette at page 976 (ka). It has further been stated that on 22.11.1983 the section officer of the Ministry of Public Works served a notice upon the petitioners for showing the original deeds and also served similar notice on 08.04.1984. While the writ petitioners submitted his documents and was advised to file an application before the Court of Settlement and accordingly, the petitioners filed case No. 125/96 (Ka-4, first Coloney, (Mirpur), Dhaka and the same was ultimately heard and dismissed on 31.07.2000, with the findings that the writ petitioners failed to prove the facts that his vendor was the heir of the original allottee and also found that the property was rightly enlisted as abandoned property.

Being aggrieved with the judgment and order of the Court of Settlement, the petitioners filed the writ petition and obtained the Rule Nisi.

Respondent No. 1 contested the Rule by filing an affidavit-in-opposition and supported the judgment and order dated 31.07.2000 passed by the learned Judge of the 1^st Court of Settlement, the respondent No. 2 on stating that the writ petitioners annexed some forged and manufactured papers in order to establish his alleged false ownership and the Government has legally and rightly enlisted the property as abandoned property and also stated that the writ petitioners failed to show the whereabouts of the original allottee, Syed Abdus Sattar after 28.02.1972.

During pendency of the Rule the petitioner Nos. 1 and 2 died and their heirs were duly substituted.

Mr. Md. Afzal Hossain, the learned advocate for the petitioners takes us through the Writ Petition as well as the annexures thereto, the materials on record and submits that the original allottee Syed Abdus Sattar died on 25.03.1971 leaving behind his only nephew Md. Ehsanul Hoque as his only heir and accordingly, the said Md. Ehsanul Hoque while in possession of the property in question sworn an affidavit before the Magistrate, 1^st Class, Dhaka on 19.05.1979 declaring that he was the sole heir of Syed Abdus Sattar (Annexure-B to the writ petition) and also referred the succession certificate dated 14.04.1979 (Annexure-B1 to the writ petition) showing that Md. Ehsanul Hoque obtained the succession certificate from the Subordinate Judge, 3^rd Court, Dhaka for the purpose of recovering a loan of Tk. 925.00 as heir of the original allottee Syed Abdus Sattar and while Md. Ehsanul Hoque was in possession sold the land in question to the writ petitioners by two registered sale deeds dated 25.05.1979; but, the Government most illegally enlisted the property in question in the abandon property ‘Ka’ list, published in the official Gazette at page 976 (ka). He also submits that the inclusion of the disputed property in the ‘ka’ list has been without any lawful authority as the petitioners were in possession, till illegally dispossessed by the lessees of the Government. He also submits that after purchase the writ petitioners paid taxes to the Dhaka Municipality Corporation and the bills of gas connection. He further submits that the Government by Memo dated 08.04.1984 (Annexure-F to the writ petition) admitted the vendor of original writ petitioner as owner of the land in question; but, the Court of Settlement without considering those documents most illegally dismissed the case by the impugned judgment and order dated 31.07.2000, which is liable to be set-aside and the disputed Plot No. 13/A/A, 1^st Coloney, Mirpur, Dhaka is liable to be released from the ‘ka’ list of the abandoned building as published in the Bangladesh Gazettee Extra Ordinary, on 23.09.1986. Mr. Hossain further submits that, in view of petitioners’ possession in the disputed property the same cannot be enlisted in “ka” schedule of the abandoned property. The learned advocate for the petitioners by citing two decisions reported in 53 DLR (AD) 55 and 54 DLR (AD) 100 and submits that notice as contemplated under sections 5 & 7 of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (hereinafter referred as the Ordinance) was not issued upon the petitioner and as such the inclusion of the disputed property in the list of abandoned property is without lawful authority. Mr. Hossain, the learned advocate also referred a decision reported in 45 DLR 416 and submits, it is a condition precedent that the physical possession of a building must have to be taken over by the Government before enlisting any property in ‘ka’ list of the abandoned property. On referring those decision and facts as stated above the learned advocate for the petitioners prays for making the Rule absolute.

On the other hand, Mr. S. Rashed Jahangir, the learned Deputy Attorney General appearing for the respondent No. 1 takes us through the affidavit-in-opposition and annexures thereto and submits that the petitioners failed to prove before the Court of Settlement that the original allottee or his legal heirs if any, were present in Bangladesh on or after 28.02.1972 and also submits that the writ petitioners in order to grab the land in question created some false and forged documents and the Court of Settlement rightly disbelieve the documents filed by the writ petitioners. The learned Deputy Attorney General also placed before us the relevant article 2(1) and 6 of the President Order 16 of 1972 and section 5(2) of the Ordinance and also cited some decisions reported in 48 DLR (AD) 10, 3 BLC (AD) 42, 61 DLR (AD) 15, 49 DLR (AD) 161 and 59 DLR (AD) 165 and submits that in view of these decisions of our Apex Court, Government has no obligation to prove the property as abandoned property and it is only the writ petitioners who have to prove that the property is not abandoned property and also submits that, it is immaterial whether the abandoned property listed in ‘Ka’ or ‘Kha’ list of the abandoned property list as published and as such, he prays for discharging the Rule.

We have heard the learned advocate for the petitioners as well as the learned Deputy Attorney General for the respondent No. 1 and perused the writ petition, affidavit-in-opposition and annexures thereto.

It appears from the order sheet of this Court that by order dated 20.01.2009 this Court directed the respondent No. 2 to transmit the case record of Case No. 125 of 1996 (ka-4) regarding the House No. 13/A/A of 1^st Coloney, Mirpur, Dhaka and accordingly, the record has been transmitted to this Court.

We have carefully examined the record of the Court of Settlement, and found that the writ petitioners examined 2(two) witnesses in order to prove their case before the Court of Settlement, amongst them P.W. 1 is Mohammad Nazrul Islam, who is a witness of the sale deeds dated 25.05.1979 and P.W. 2 Mohammad Siraj-Ud-Dowla also a witness of the sale deeds dated 25.05.1979 and they were examined only in order to prove the execution of the registered sale deeds dated 25.05.1979 and also filed the affidavit dated 19.05.1979 and the succession certificate dated 14.04.1979 in order to prove that Md. Ehsanul Hoque was the only heir of Syed Abdus Sattar the original allottee along with some other papers.

The petitioners though stated in the writ petition that the original allottee had died on 25.03.1971 leaving behind his only nephew (sister’s son) Md. Ehsanul Hoque as his heir and in order to prove the said fact filed two documents, one is an affidavit which was sworn before the Court of Magistrate, 1^st Class, Dhaka on 19.05.1979 (annexure-B to the writ petition) and the other is a succession certificate dated 14.04.1979 (annexure-B1 to the writ petition). From those documents it appears that Md. Ehsanul Hoque on 19.05.1979 sworn an affidavit before the Court of Magistrate, 1^st Class, Dhaka declaring himself as the sole heir of Syed Abdus Sattar and it appears from the succession certificate dated 14.04.1979, the same was obtained for recovering a loan of Tk. 925.00 only, while said Md. Ehsanul Hoque transferred the case land in question by two registered sale deeds dated 25.05.1979. So, it appears to us that only for the purpose of creating sale deeds dated 25.05.1979, showing Md. Ehsanul Hoque as the heir of Syed Abdus Sattar, the succession certificate dated 14.04.1979 and affidavit dated 19.05.1979 were obtained. Moreover, the writ petitioners failed to produce any documentary or oral evidences before the Court of Settlement to prove the fact that the original owner Syed Abdus Sattar or his legal heir was present in Bangladesh and occupied, managed or supervised the disputed property when President’s Order 16 of 1972 came into operation.

Now let us consider the decisions placed before us by the respective parties. The learned advocate for the petitioners relied upon the case of Bangladesh Vs. Amela Khatoon and others, reported in 53 DLR (AD) 55, wherein our Hon’ble Appellate Division held that,

“High Court Division further found that according to clause (b) of sub-section (1) of section 5 of the Abandoned Buildings (Supplementary Provisions) Ordinance 1985 an abandoned property in possession of a person can only be included in the “kha” list of abandoned buildings in respect of which notice for surrendering or taking possession has been issued. Though the learned Deputy Attorney General referred to notices dated 06.11.1976, 07.06.1977 and 06.03.1986 mentioned in the judgment of the Court of Settlement he could not satisfy us that the said notices were issued to surrender possession of the disputed property treating the same as abandoned property. On going through the judgment of the Court of Settlement we find that those notices were issued on the respondent Nos. 1-6 to produce their vendor Bibi Homaira when they had applied for mutating their names after their purchase from Bibi Homaira. Thus it appears that the Government petitioner did neither treat the disputed property as abandoned property nor took any step to take over possession of the same till publication of Gazette notification in question. Since no notice as contemplated under section 5(1)(b) of the said Ordinance was issued to the respondent Nos. 1-6 or any other person inclusion of the disputed property in the “kha” list of the abandoned buildings is without lawful authority. In that view of the matter we do not find any merit in this petition to interfere with the impugned judgment.”

And in the case of Government of Bangladesh and others Vs. Bibi Marium and other, reported in 54 DLR (AD) 100 wherein their Lordships held that,

“It is now settled principle of law on interpretation of section 5(1)(b) of the Abandoned Buildings (supplementary provision) Ordinance, 1985 in the case of Bangladesh vs Amela Khatun and other 53 DLR (AD) 55 that since no notice as contemplated under section 5(1)(b) of the Ordinance was issued to the respondent or any other person inclusion of disputed property in the kha’ list of the abandoned building is without lawful authority. In the facts and circumstances of the case as detailed above and found by the High Court Division and that the judgment of the Court of Settlement is coram non judice, the illegal inclusion of the building in the ‘kha’ list of the abandoned building and that no notice having been served to the petitioner or other predecessor, the said inclusion is without any lawful authority.”

And in the case of Iqbal Ahmed Quraishi Vs. Bangladesh represented by the Secretary, Ministry of Works, Government of the People’s Republic of Bangladesh, Dhaka, reported in 45 DLR 416, wherein a Division Bench of the High Court Division held that,

“Therefore, it is a condition precedent that the physical possession of building must have been taken over by the Government before it could be listed as an abandoned property under Clause (a) of sub-section (1) of section 5 of the Ordinance i.e. published in the official Gazette.”

On the other hand, it appears from the decisions cited by the learned Deputy Attorney General in the case of Government of Bangladesh Vs. Md. Jalil and others, reported in 48 DLR (AD)10, that their Lordships held that,

“The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant.”

And in the case of Hazerullah and another Vs. Chairman, 1^st Court of settlement and another, reported in 3 BLC (AD) 42, their Lordships held that,

“This contention will stand only when the claimant can prove that the disputed building was not an abandoned property. In case before the Court of settlement, main question is, whether the disputed house answers the description of “abandoned property” as defined in article 2 (1) of Bangladesh Abandoned property (Control, managemnt4 and Disposal) Order, 1972(PO No. 16 of 1972), briefly, “the Order”. Under clause (1) of Article 2 of the Order ‘abandoned Property, inter alia, means any property owned by any person who is not present in Bangladesh or whose whereabouts are not known or who has ceased to occupy, supervise or manage in person his property.

Section 5(2) of the Ordinance provides that a list of the buildings published under sub-section (1) thereof, shall be conclusive evidence that the buildings included therein are abandoned property and have vested in the Government as such.
………………………………………………..
Before the Court of Settlement the petitioner could not product any evidence that the said Abdur Rahim or his alleged heirs had been present in Bangladesh during after the war of liberation and that their whereabouts were known to the respondent Government or that the said Abdur Rahim had been occupying supervising and managing the disputed property as on 28-2-72. The said court on consideration of the materials on record held that the original lessee Abdur Rahim and his heirs at the relevant time were not traceable in Bangladesh and that the appellants had unauthorisedly been occupying the property in question since 28-03-72. As such, it is immaterial, as far as the appellants are concerned whether the disputed property was published in the ‘Ka’ or ‘Kha’ list.”
(Bold, emphasis given)

And in the case of Golam Rabbani Vs. Chairman, Court of Settlement and others, reported in 61 DLR (AD) 15, their Lordships decided as under:

“In the case of Hazerullah vs Chairman, 1^st Court of Settlement reported in 3 BLC (AD) 42 it was held that it is immaterial whether the disputed property was listed in the ‘ka’ or ‘kha’ list, it is the abandoned character of the property which is the main criteria for determining the whole matter.”

And in the case of Government of Bangladesh Vs. Ashraf Ali @ Ashraf Ali and another, reported in 49 DLR (AD) 161, wherein their Lordships held that,

“It has been held by this Division in various decisions that the enlistment of a building under section 5(1) of the Ordinance 54 of 1985 raises a presumption in law that the property is an abandoned property under section 5(2) of the Ordinance. This presumption is, of course, a rebuttable presumption but respondent No. 1 failed to rebut this presumption. No rebuttable evidence could be adduced to show that original owner Yahiya was present in Bangladesh and he occupied, managed or supervised the disputed building when President’s Order 16 of 1972 came into operation. Hence, the listing of the property as an abandoned property in the Supplementary Provisions Ordinance, 1985 was lawful as it was an abandoned property by operation of law.”

And lastly in the case of Rowshan Ara Begum Vs. Secretary, Ministry of Works and Urban Development, Government of Bangladesh and others, reported in 59 DLR (AD) 165, wherein their Lordships held that,

“In the instant case the petitioner having not been able to establish before the Court of Settlement that the claimant of the property or for that matter her vendor Anwari Khatun were present in Bangladesh on 28.02.1972 and consequent thereupon the property having had assumed the character of abandoned property, the listing of the property in question, even if without service of notice as per provision of Ordinance No. 54 of 1985, is not material as the property because of non-service of notice for listing in the list of abandoned properties would not cease to be an abandoned property and consequent there upon the claim of title made by the petitioner in the property in question is not legally sustainable”

On considering the facts and circumst-ances of the case we are of the view that the writ petitioners failed to prove that Syed Abdus Sattar or his legal heir ever occupied, managed or supervised in person the land in question on or after 28.02.1972. Only 2(two) witnesses were examined by the writ petitioners before the Court of Settlement to prove the execution of the alleged sale deeds of 1979 and no other oral or documentary evidences were produced before the Court of Settlement to prove the petitioner’s case. Moreover, the enlistment of the disputed property under the Ordinance raises a presumption in law that the property is an abandoned property under section 5(2) of the Ordinance. This presumption is, of course, a rebuttable presumption but the petitioners failed to rebut this presumption. No rebuttable evidence could be adduced to show that original owner Syed Abdus Sattar or his legal heir was present in Bangladesh and had occupied, managed or supervised the disputed building when President’s Order 16 of 1972 came into operation. Hence, the listing of the property as an abandoned property was lawful as it was an abandoned property by operation of law. Further, the petitioners having not been able to establish before the Court of Settlement that their vendor Syed Abdus Sattar was present in Bangladesh on or after 28.02.1972 and consequent thereupon the property having assumed the character of abandoned property, the listing of the property in question, even if without service of notice as per provision of Ordinance, is not material as the property because due to non-service of notice for listing the property in the list of abandoned property would not change the fact that the property is an abandoned property and consequent, there upon the claim of title made by the petitioners in the property in question is not legally sustainable. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the petitioners. It is immaterial whether the disputed property was listed in the ‘ka’ or ‘kha’ list, it is the abandoned character of the property which is the main criteria for determining the whole matter.

We as such, find that the writ petitioners failed to prove their case that their vendor Md. Ehsanul Hoque was the heir of the original allottee Syed Abdus Sattar and that Syed Abdus Sattar or his legal heir had occupied, managed or supervised the property in question on or after 28.02.1972 and the same was rightly listed as abandoned property. Therefore, the Court of Settlement rightly found that,

‘‘প্রার্থী পক্ষের দাখিলী কাগজাদি এবং সরকার পক্ষের দাখিলী সরকারী নথি পর্যালোচনা করিলাম। নালিশী সম্পত্তি সরকার জনৈক মোহাজের (Refugee) আবদুস সাত্তারের অনুকূলে কিছু শর্ত সম্বলিত অরেজিষ্ট্রিকৃত লিজ এগ্রিমেন্ট মূলে বিগত ২৪-৭-৫৩ইং তারিখ বরাদ্দ প্রদান করেন, ইহা সর্বস্বীকৃত। প্রার্থীগনের দাবী হইল লীজ গ্রহীতা আবদুস সাত্তার নিঃসমত্মান অবস্থায় বোনের ছেলেকে একমাত্র ওয়ারিশ রাখিয়া মারা গেলে এহসানুল হক লীজ গ্রহীতার উত্তরাধিকার সূত্রে মালিক হিসাবে নালিশী সম্পত্তি বিগত ২৫-২-৭৯ইং তারিখে প্রার্থীগনের অনুকূলে বিক্রয় করে এবং খরিদা সূত্রে প্রার্থীগন বর্তমানে নালিশী সম্পত্তি ভোগ দখল করিতেছে। সরকার পক্ষ প্রার্থী পক্ষের এই দাবী অস্বীকার করিয়া উল্লেক্ষ করেন যে, লীজ গ্রহীতা স্বাধীনতা যুদ্ধের সময়ে স্বপরিবারে এদেশ ত্যাগ করে এবং স্বাধীনতার পর হইতে এ যাবত তাহার অবস্থান অজ্ঞাত নিঃসমত্মান অবস্থায় এদেশে তাহার মৃত্যু এবং এহসানুল হক তাহার বোনের ছেলে ইহা প্রার্থীপক্ষের কাল্পনিক গল্পই বটে। তৎমর্মে কোন প্রকার স্বীকৃত কাগজাদি প্রার্থী পÿ দাখিল করে নাই। প্রার্থী পক্ষের ১নং সাক্ষী জনাব নুরুল ইসলাম জেরাতে বলেন তিনি প্রার্থীগনের খরিদা দলিলে স্বাক্ষী আছেন। কিন্তু এই সাক্ষী দলিলে কি লিখা আছে বা কত টাকা লেনদেন হইয়াছে তৎমর্মে কিছুই বলিতে পারেন না। এই স্বাক্ষী ১৯৭৬ সাল হইতে ১৯৭৯ ইং সাল পর্যমত্ম এই বাড়িতে এহসানুল হকের ভাড়াটিয়া ছিল বলিলেও এহসানুল হক কি সূত্রে বাড়ির মালিক চিল কিছুই বলিতে পারেন না। এই সাক্ষী আরোও স্বীকার করেন যে, ১৯৭৬ সালের পূর্বে নালিশী সম্পত্তি পরিত্যক্ত অবস্থায় ছিল। ২ নং স্বাক্ষী জনাব সিরাজউদ্দৌলা জেরাতে এহসানুল হক কিভাবে নালিশী সম্পত্তির মালিক হইয়াছেন সেই সম্পর্কে কিছুই বলিতে পারেন নাই। এই ক্ষেত্রে নালিশী সম্পত্তির লীজ গ্রহীতার একমাত্র ওয়ারিশ সূত্রে এহসানুল হক নালিশী সম্পত্তির মালিক বা দখলকার ছিলেন ইহা প্রমান করিতে পারেন নাই। মূল মালিকের মৃত্যু ও তাহার ওয়ারিশ সম্পর্কে স্বীকৃত প্রমান প্রার্থীপক্ষ যেহেতু দাখিল করিতে ব্যর্থ হইয়াছেন, সেইহেতু প্রার্থীপক্ষ তাহাদের মোকদ্দমার প্রার্থীত প্রতিকার পাইতে পারেন না। সেইহেতু তাহাদের মোকদ্দমা খারিজযোগ্য।’’

Accordingly, we do not find substance in the arguments of the learned advocate for the petitioners and find substance in the arguments of the learned Deputy Attorney General for the respondent No. 1.
In the result, the Rule is discharged without any order as to costs.

Send down the record of the Court of Settlement.

Communicate the judgment to respondent No. 1 at once.

Ed.

Sarwar Kamal Vs. Bangladesh and others 2017 (1) LNJ 393

Case No: Writ Petition No. 13157 of 2015

Judge: Moyeenul Islam Chowdhury. J.

Court: High Court Division,

Advocate: Fida M. Kamal, Md. Motaher Hossain,

Citation: 2017 (1) LNJ 393

Case Year: 2017

Appellant: Sarwar Kamal

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-07-13

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

Md. Iqbal Kabir, J

Judgment on

26.01.2017

}

Sarwar Kamal

. . . Petitioner

-Versus-

Bangladesh represented by the Secretary, Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Ramna, Dhaka-1000 and others

. . . Respondents

Supreme Court of Bangladesh (High Court Division) Rules, 1973

Rule 3(7)(b) and (c)

Non-mentioning of the earlier two Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 specifically in paragraph 27 of the Writ Petition before us and non-making of any statement in the present Writ Petition in respect of any new/different ground and non-annexing of the rejection orders of the earlier two Writ Petitions, according to us, have disentitled the petitioner to move the instant Writ Petition and obtain any Rule. In other words, for violation of Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973, the present Writ Petition cannot be maintainable. Consequently, the Rule is incompetent. . . . (22)

Indian Nut Products and others Vs. Union of India and others, (1994) 4 SCC 269; M/s. Mahabir Jute Mills Ltd. Gorakhpur Vs. Shibban Lal Saxena and others, AIR 1975 SC 2057; East Coast Railway and another Vs. Mahadev Appa Rao and others, (2010) 7 SCC 678; S. N. Mukherjee Vs. Union of India, AIR 1990 SC 1984; Solicitor, Government of Bangladesh Vs. Syed Sanwar Ali and others, 27 DLR (AD) 16 and Sheikh Abdus Sabur Vs. Returning Officer, District Education Officer-in-Charge, Gopalganj and others, 41 DLR (AD) 30, ref.

Mr. Fida M. Kamal with

Mr. Tawhidul Islam, Advocates

. . .For the petitioner.

Mr. Md. Motaher Hossain (Sazu), DAG with

Ms. Purabi Rani Sharma, AAG and

Ms. Purabi Saha, AAG

. . .For the respondent No. 1.

JUDGMENT

Moyeenul Islam Chowdhury, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why Section 31 of ÙÛ¡e£u plL¡l (®f±lpi¡) BCe, 2009 (2009 m‡bi 58 ew BCe) should not be declared to be void and ultra vires the Constitution and why the notification as contained in Memo No. 46.00.0000.0636.27. 015.15-2188/1(8) dated 24.11.2015 issued by the respondent no. 2 under the signature of the respondent no. 3 suspending the petitioner from the office of Mayor, Cox’s Bazar Pourashava, Cox’s Bazar should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

Section 31 of ÙÛ¡e£u plL¡l (®f±lpi¡) BCe, 2009 (2009 m‡bi 58 ew BCe) (hereinafter referred to as the Act No. 58 of 2009) provides, inter alia, that a Mayor may be suspended if a proceeding has been initiated against him for his removal from office or a charge-sheet filed against him in a criminal proceeding has been accepted by a Court and the authority is of the opinion that exercising the power of Mayor is repugnant to the interest of the Pourashava or undesirable from the perspective of administration. Anyway, the election of Cox’s Bazar Pourashava was held peacefully on 27.01.2011 and the petitioner was duly elected as Mayor and 16(sixteen) others were also elected as Councillors of the Pourashava and the result of the election was published in the Official Gazette on 02.02.2011. The petitioner took oath of office as Mayor of Cox’s Bazar Pourashava on 20.07.2013 and since then he had been performing the duties and functions of the Mayor of the Pourashava till he was suspended. At the behest of some rival political groups in the locality, the petitioner was made an accused in G. R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 under Sections 3/3A/6 of the Explosive Substances Act, 1908. The First Information Report was lodged by one Sub-Inspector of Cox’s Bazar Sadar Model Police Station naming as many as 216 persons including the petitioner and it was stated therein that the petitioner was involved in arranging and bringing out a violent procession on 15.02.2013 in Cox’s Bazar with sticks, iron rods, explosive substances, etc. in support of the leaders of Jamat-e-Islami who were accused of war crimes. Although the petitioner was not physically present in Cox’s Bazar at the time of the alleged occurrence mentioned in the First Information Report, he was falsely implicated in that case out of political animosity. He obtained bail from the Court and he has been enjoying the privilege of bail till date. However, the police submitted charge-sheet no. 630 dated 21.10.2014 against 273 persons including the petitioner in that case. In due course, the record of the case was sent to the Special Tribunal No. 1, Cox’s Bazar and the same was registered as Special Tribunal Case No. 190 of 2015. The learned Special Tribunal Judge accepted the charge-sheet against the petitioner and others and fixed the next date of the case on 28.01.2016. But all of a sudden, the petitioner was suspended from his Mayoral post by the Memo No. 46.00.0000.0636.27.015.15-2188/1(8) dated 24.11.2015 issued by the respondent no. 2 under the signature of the respondent no. 3 on the pretext of acceptance of the charge-sheet against him in the said case and on the vague and unspecified apprehension that the exercise of power of the Mayor by the petitioner is repugnant to the interest of the Pourashava and undesirable from the perspective of administration. As per the direction contained in the Memo No. 46.00.0000.0636.27.015.15-22231/1(6) dated 30.11.2015 issued by the respondent no. 3, the petitioner handed over the charge of the Mayorship of Cox’s Bazar Pourashava to the panel Mayor vide Office Memo No. L„x ®f±lx/2015/2350 dated 01.12.2015. Mere implication of the petitioner in a criminal case does not indicate that his exercise of power as the Mayor is prejudicial to the interest of the Pourashava or undesirable or imprudent from administrative point of view. As the petitioner was illegally suspended from the Mayorship of the Pourashava by the impugned Memo dated 24.11.2015, that is liable to be struck down. As there is scope for indiscriminate use of the power spelt out in Section 31(1) of the Act No. 58 of 2009, the same is liable to be declared ultra vires the Constitution.

3. In the Supplementary Affidavit dated 09.02.2016 filed on behalf of the petitioner, it has been averred that the petitioner was made an accused in G. R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 out of political rivalry.

4. In the Supplementary Affidavit dated 15.05.2016 filed on behalf of the petitioner, it has been stated that the petitioner challenged the proceedings of G.R. Case No. 131 of 2013 arising out of Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 under Sections 3/3A/6 of the Explosive Substances Act, 1908 under Section 561A of the Code of Criminal Procedure before the High Court Division and ultimately by its judgment and order dated 11.04.2016, the High Court Division made the Rule absolute and thereby quashed the proceedings of the case pending before the Special Tribunal No. 1, Cox’s Bazar, so far as it related to the petitioner.

5. The Rule has been contested on behalf of the respondent no. 2 by filing an Affidavit-in-Opposition. The case of the respondent no. 2, as set out therein, in brief, runs as under:

6. It is true that the petitioner was elected as Mayor of Cox’s Bazar Pourashava. He was implicated in G. R. Case No. 131 of 2013 because of his participation in violent and terrorists activities. He was not implicated in the case out of any political rivalry or animosity. However, the election of the petitioner as Mayor of Cox’s Bazar Pourashava did not give him any unbridled power to act at his own sweet will. The Government acted in accordance with the provisions of Section 31 of the Act No. 58 of 2009 after acceptance of the charge-sheet against him by the Court in Special Tribunal Case No. 190 of 2015 arising out of G. R. Case No. 131 of 2013 corresponding to Cox’s Bazar Sadar Model Police Station Case No. 36 dated 15.02.2013 and suspended him from the Mayorship of the Pourashava. The order of suspension of the petitioner from the Mayorship of the Pourashava was challenged before different Benches of the High Court Division; but he did not get any remedy. Although he challenged the vires of Sections 31 and 32 of the Act No. 58 of 2009 in Writ Petition Nos. 12081 of 2015 and 12362 of 2015 earlier, those were rejected as being not pressed. This being the scenario, the petitioner has filed the instant Writ Petition challenging the same in contravention of Rule 3(7)(b) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973. However, there is a presumption of constitutionality in favour of Section 31 of the Act No. 58 of 2009 and the burden is upon the petitioner to rebut that presumption of constitutionality. But he has signally failed to rebut the same. So the Rule is liable to be discharged with costs.

7. In the Supplementary Affidavit-in-Opposition filed on behalf of the respondent no. 2, it has been mentioned that the petitioner was suspended from the post of Mayor of Cox’s Bazar Pourashava in keeping with the provisions of Section 31 of the Act No. 58 of 2009 and no due process was violated by the Government in this regard.

8. In the Affidavit-in-Reply filed on behalf of the petitioner, it has been stated that the petitioner earlier filed 2(two) separate Writ Motions before other Division Benches of the High Court Division challenging the impugned notification; but those Motion petitions were eventually rejected as being not pressed and in none of those Writ Petitions, the constitutionality of Section 31 of the Act No. 58 of 2009 was under challenge.

9. At the outset, Mr. Fida M. Kamal, learned Advocate appearing on behalf of the petitioner, submits that a reference to the impugned notification dated 24.11.2015 indicates that the order of suspension of the petitioner from the Mayorship of the Pourashava is evidently a flawed order in view of the fact that no consideration of the materials on record was made and no objective satisfaction of the prescribed authority was arrived at as contemplated by Section 31(1) of the Act No. 58 of 2009 and this being the position, the impugned order can not be sustained at all.

10. Mr. Fida M. Kamal further submits that the language of Section 31(1) was mechanically used in the impugned notification dated 24.11.2015 and this mechanical use of the statutory language is not sufficient for placing the petitioner under suspension.

11. Mr. Fida M. Kamal also submits that the impugned order is not a reasoned and speaking order; it is rather a cryptic and arbitrary order inasmuch as non-application of mind on the part of the prescribed authority to the materials on record is a dimension of arbitrariness.

12. Mr. Fida M. Kamal next submits that it is the duty of the prescribed authority to examine the charge-sheet and come to a finding that the exercise of power by the petitioner as Mayor is prejudicial to the interest of the Pourashava or improper or imprudent from administrative point of view and as the impugned order does not show any application of mind to the materials on record by the prescribed authority, that is ‘de hors’ the law.

13. Mr. Fida M. Kamal also submits that the petitioner filed 2(two) Writ Petitions earlier which were rejected as being not pressed and subsequently on a new ground, they have filed the present Writ Petition and by that reason, the instant Rule is maintainable.

14. In support of the above submissions, Mr. Fida M. Kamal has drawn our attention to the decisions in the cases of Indian Nut Products and others…Vs…Union of India and others, (1994) 4 SCC 269; M/s. Mahabir Jute Mills Ltd. Gorakhpur…Vs…Shibban Lal Saxena and others, AIR 1975 SC 2057; East Coast Railway and another…Vs…Mahadev Appa Rao and others, (2010) 7 SCC 678 and S. N. Mukherjee…Vs…Union of India, AIR 1990 SC 1984.

15. Per contra, Mr. Md. Motaher Hossain (Sazu), learned Deputy Attorney-General appearing on behalf of the respondent no. 2, submits that where the words used in Section 31(1) of the Act No. 58 of 2009 are clear and unambiguous, the Court is bound to apply the law, even if such application causes hardship and injustice to any party. In this respect, Mr. Md. Motaher Hossain (Sazu) has relied upon the decision in the case of Solicitor, Government of Bangladesh…Vs…Syed Sanwar Ali and others, 27 DLR (AD) 16.

16. Mr. Md. Motaher Hossain (Sazu) next submits that there is a presumption of constitutionality in favour of Section 31 of the Act No. 58 of 2009 and the petitioner has singularly failed to rebut that presumption. With regard to the constitutional validity of Section 31 of the Act No. 58 of 2009, Mr. Md. Motaher Hossain (Sazu) has referred to the decision in the case of Sheikh Abdus Sabur ..Vs.. Returning Officer, District Education Officer-in-Charge, Gopalganj and others, 41 DLR (AD) 30.

17. We have heard the submissions of the learned Advocate Mr. Fida M. Kamal and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) and perused the Writ Petition, Supplementary Affidavits, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition, Affidavit-in-Reply and relevant Annexures annexed thereto.

18. The first bone of contention between the parties pertains to the maintainability of the instant Writ Petition when admittedly the earlier two Writ Petitions were rejected as being not pressed. In this context, Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973 may be adverted to:

19. Rule 3 (7) of the aforementioned Rules contemplates that where any Motion application/petition is-

(a) . . . ;

(b) summarily rejected on merit or is rejected for its being not pressed or for any other reason, a fresh application/petition on the same ground/cause shall not be made;

(c) rejected as mentioned in clause (b) above and a fresh application is made on a new/different ground, it must contain a specific reference to the previous Motion application(s)/ petition(s) and the rejection order(s).

20. In this connection, paragraph 27 of the Writ Petition may be quoted below verbatim:

“27. That the petitioner earlier filed two separate writ motions before other Division Benches of the High Court Division challenging this impugned notification, but those petitions were eventually not pressed by the petitioner; however, in none of those writ petitions, the constitutionality of Section 31 of the Act was under challenge.”

21. It is stunning to note that the petitioner has not cared to specifically refer to those two Writ Petitions which were earlier moved before two other Division Benches of the High Court Division and rejected as being not pressed. It appears to us that he has referred to two separate Writ Motions in paragraph 27 of the Writ Petition in a very vague and evasive manner without specifically mentioning the Writ Petition numbers. We fail to understand as to why he has refrained from specifically mentioning the earlier two Writ Petitions in paragraph 27 of the Writ Petition. Most importantly, it is the respondent no. 2 who in his Affidavit-in-Opposition has made a specific statement that the two earlier Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 were rejected as being not pressed and the rejection orders have been annexed as Annexures-‘1’ and ‘2’ thereto. It transpires from Annexures-‘1’ and ‘2’ that in the cause-titles of those two earlier Writ Petitions, there was a reference to Sections 31 and 32 of the Act No. 58 of 2009; albeit it has been asserted that the petitioner did not challenge the vires of those Sections in those Writ Petitions. Curiously enough, no statement has been made specifically within the four corners of the present Writ Petition as regards the new/different ground, if any, that has been taken therein. On top of that, the earlier rejection orders of the Writ Petition Nos. 12081 of 2015 and 12362 of 2015 have not been annexed to the instant Writ Petition at the time of Motion hearing.

22. What we are driving at boils down to this: non-mentioning of the earlier two Writ Petitions, namely, 12081 of 2015 and 12362 of 2015 specifically in paragraph 27 of the Writ Petition before us and non-making of any statement in the present Writ Petition in respect of any new/different ground and non-annexing of the rejection orders of the earlier two Writ Petitions, according to us, have disentitled the petitioner to move the instant Writ Petition and obtain any Rule. In other words, for violation of Rule 3(7)(b) and (c) of Chapter-IVA of the Supreme Court of Bangladesh (High Court Division) Rules, 1973, the present Writ Petition can not be maintainable. Consequently, the Rule is incompetent.

23. In the facts and circumstances of the case, we feel constrained to observe that the conduct of the petitioner was not fair in obtaining the instant Rule on the basis of the third Writ Petition. A Writ Court is also a Court of equity. There goes an age-old legal dictum- “One who seeks equity must come with clean hands.” As the hands of the petitioner are unclean, he must be shown the door.

24. As we have found the Rule incompetent, we refrain from addressing the submissions of the learned Advocate Mr. Fida M. Kamal and the counter-submissions of the learned Deputy Attorney-General Mr. Md. Motaher Hossain (Sazu) with reference to the merit of the case.

In view of what have been stated above, the Rule is discharged as being not maintainable with costs of Tk. 20,000/- (twenty thousand) only.

Ed.

Writ Petition No. 13157 of 2015

Sarwar Kamal Vs. The State, 1 LNJ (2012) 516

Case No: Criminal Revision No. 801 of 1997

Judge: M. Enayetur Rahim,

Court: High Court Division,,

Advocate: Mr. M.H. Sarder,Mr. Md. Tamizuddin,,

Citation: 1 LNJ (2012) 516

Case Year: 2012

Appellant: Sarwar Kamal

Respondent: The State

Subject: Commutation/Reduction of Sentence,

Delivery Date: 2012-04-25

HIGH COURT DIVISION
(Criminal Revisional Jurisdiction)

M. Enayetur Rahim, J.
And
S. M. Zakir Hossian, J.

Judgment
25.04.2012

Sarwar Kamal

...Petitioner

Vs.

The State

...Opposite Parties

Constitution of Bangladesh, 1972
Article 49
Code of Criminal Procedure (V of 1898)
Section 401(1)
It is contended on behalf of the petitioner that the Court may only enquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution. Since the government failed to produce the relevant file and in the affidavit the State did not state any fact with regard to the same it is not possible for the Court to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived this Court to answer properly all those questions. In view of the cited proposition of law, though those are not binding on us; but it has got persuasive value, the contention of the learned advocate of the petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution cannot be accepted. The Court cannot fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by this Court. Government have got no authority and jurisdiction to exercise the power under Article 49 of the Constitution but it can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict in suitable cases. Government in exercising power under Article 49 of the Constitution exceeded its jurisdiction. ... (12, 14, 25 and 26)

Constitution of Bangladesh, 1972
Article 49
Code of Criminal Procedure (V of 1898)
Section 401 (1), 498 and 561A
From the order dated 12.04.1993 it is evident that in the said order nothing has been mentioned with regard to the Criminal appeal. In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrender-red to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order. After disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 section of the Code of Criminal Procedure he was fugitive from justice and as such this Court is unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant Sessions Judge, Cox’s Bazar. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power. On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

When the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive. Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather it was an attempt of the petitioner to mislead the Court. The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court. … (30, 31, 39, 40, 47, 58, and 62)

Maru Ram vs. Union of India, AIR 1980 (SC), 2147, Kehar Singh -Vs- Union of India AIR 1989(SC), 653 , Swaran Singh–Vs- State of U.P. and others (1998) SCC,75 , Shatapal and another –Vs- The State of Hariana, AIR 2000(SC), -1702, Chand –Vs- Crown, PLD 1956 (FC), 43, Gul Hassan –Vs- The State, 21 DLR (SC), 109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –Vs- ATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page-25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45 ref.

Mr. Md. Tamizuddin, Advocate with,
Mr. S.M. Zafar Sadeque, Advocate and
Mr. Mohammad Ali, Advocate

----For the Petitioner

Mr. M.H. Sarder, DAG with,
Mr. Gazi Md. Mamunur Rashid, AAG and
Mr. Md. Asaduzzaman, AAG

---- For the State

Criminal Revision No. 801 of 1997

JUDGMENT

M. Enayetur Rahim, J:

At the instance of the petitioner on an application under Section 561A read with section 498 of the Code of Criminal Procedure the instant Rule was issued on the following terms;

“Let a Rule be issued calling upon the opposite party to show cause as to why the First Court of Assistant Sessions Judge, Cox’s Bazar shall not be directed to give effect to the order of remission of sentence of the petitioner in ST No.25 of 1987 as passed by the President being Memo No.143-P-45/92(Kara-2) dated 12.04.1993 as communi-cated to the petitioner by Memo No.3-16/92 dated 08.06.1993 of the opposite-party and why the warrant of arrest and warrant of commitment as issued on 30.06.1997 against the petitioner shall not be recalled by setting aside the orders dated 30.06.1997 and 31.08.1997 passed in ST No.25 of 1987 and/ or to as such other or further order or orders as to this Court may seem fit and proper.”

In the application under section 561A of the Code of Criminal Procedure the petitioner stated that the petitioner along with others (in total 15 persons were put on trial before the 1^st Court of Assistant Sessions Judge Cox’s Bazar, (that was performing the function of Additional Sessions Judge at the relevant time) in Sessions Trial No.25 of 1987 arising out of Tekhnaf Police Station Case No.8(7)/81.

On conclusion of the trial the petitioner along with two others were found guilty under Sections 304/34 of the Penal Code and sentenced to suffer rigorous imprisonment for 10(ten) years with a fine of Tk.10,000/-(ten thousand), in default, to suffer rigorous imprisonment for further period of 2(two) years.

Being aggrieved by the said judgment and order of conviction and sentence the petitioner along with two others preferred Criminal Appeal No.611 of 1989 before the High Court Division. While the said appeal was pending the petitioner was enlarged on bail by an order dated 28.08.1991. Eventually, a Division Bench of the High Court Division after hearing the appeal by its judgment and order dated 22^nd and 23^rd September,1992 dismissed the same and affirmed the conviction under Sections 304/34 of the Penal Code; but modified the sentence from 10(ten) years to 8(eight) years.

The President of Bangladesh by order being No.143-P-45/92(Kara-2) dated 12.04.1993 was pleased to remit the sentence of the petitioner along with two others as passed by the 1^st Court of Assistant Sessions Judge, Cox’s Bazar in Sessions Trial No.25 of 1987 on 08.06.1989 in exercising the power under Article 49 of the Constitution and section 401 of the Code of Criminal Procedure. The said order was communicated, among others, to the Deputy Commissioner Cox’s Bazar who then communicated the same to the Solicitor, Ministry of law, Justice and Parliamentary Affairs by his Memo No.3-16/92-435/1(3)/J:M: dated 08.06.1993; pursuant to the said order the other two convict who were in jail were released on receipt of the said order of the President. However, neither the Ministry of Law, Justice and Parliamentary Affairs nor the Deputy Commissioner, Cox’s Bazar ever communi-cated the said order of remission of sentence of the petitioner to the trial Court. Due to non-communication of the aforesaid order of remission of sentence of the petitioner by the President the learned Assistant Sessions Judge by its order dated 30.06.1997 had issued warrant of arrest and conviction warrant against the petitioner holding that he (petitioner) did not surrender after the disposal of the appeal to serve out the remaining sentence as held by the High Court Division. On coming to know about the said issuance of the warrant of arrest and warrant of commitment the petitioner on 18.08.1997 filed an application in the Court of Assistant Sessions Judge through his engaged Advocate for recalling the warrant of arrest and warrant of commitment in view of the order of remission of the sentence passed by the President submitting a copy of the same. The learned Assistant Sessions Judge, after hearing the said application and the respective parties by the order dated 31.08.1997 rejected the application holding that the Court rightly and lawfully issued the warrant of arrest as well as the conviction warrant as the petitioner did not surrender before the trial court complying the direction of the High Court Division and after issuance of the warrant of arrest the petitioner became fugitive from justice and after his surrender there might be a scope to give effect of the order of the Ministry of Home affairs as claimed by the petitioner.

Being aggrieved by the said orders and to give effect the order of remission of sentence the petitioner obtained the present Rule.

Mr. Md. Tamizuddin, the learned Advocate appearing on behalf of the petitioner with Mr. S.M. Zafar Sadeque and Mr. Mohammad Ali, the learned Advocates, submits that since the President remitted the sentence of the accused petitioner in exercise the power as conferred in Article 49 of the Constitution of the People’s Republic of Bangladesh the learned Assistant Sessions Judge is liable under the law to give effect to the order of the President and in not doing so he committed serious illegality and exceeded its jurisdiction. Mr. Tamijuddin further submits that there is no legal justification for the petitioner to surrender before the Court in order to give effect the order of remission of sentence as observed by the learned Assistant Sessions Judge as he is not required to do so in view of the President’s order and as such the impugned orders are liable to be quashed and this Court in exercising power under Section 561A of the Code of Criminal Procedure may interfere with the impugned orders and to give effect to the order of the President dated 12.04.1993 remitting the sentence of the petitioner.

Mr. M. H. Sarder the learned Deputy Attorney General appearing with Mr. Gazi Md. Mamunur Rashid and Mr. Md. Asaduzz-aman, the learned Assistant Attorneys General, submits that the memo dated 12.04.1993 by which the sentence of the petitioner has been remitted was issued by the Ministry of Home Affairs and it was the decision of the President as well as the Government.

It is to be noted here that when the matter was taken up for hearing, on perusal of the Photostat copy of the order dated 12.04.1993, annexed with the application, some doubt was created in our mind about the same and to remove our said doubt we directed the Deputy Attorney General and the Assistant Attorney General present in the Court to produce the relevant file with regard to the remission given to the petitioner by the President, in exercising Power under Article 49 of the Constitution as well as under Section 401(1) of the Code of Criminal Procedure. Eventually, the learned Deputy Attorney General frankly expressed their inability in presenting the relevant file as the concerned Ministry failed to supply the file to the office of the Attorney General. In such facts and circumstances we directed the Secretary, Ministry of Home Affairs to produce the file and at one stage we had compelled to issue Suo-Motu Rule for contempt against the Secretary, Ministry of Home affairs. In that event, the learned Deputy Attorney General by filing an affidavit informed the Court that the relevant file had been misplaced. The concerned officers of the Ministry have been trying to trace out the said file. However, a photostat copy of the order of remission to the petitioner attested by the Assistant Inspector General of Prison and authenticated by the Deputy Secretary Ministry of Home Affairs has been annexed with the affidavit.

The order of remission of the sentence of the petitioner dated 12.04.1993, annexure-A, to the application under Section 561A of the Code of Criminal Procedure runs as follows;

আদেশ
যেহেতু সাজাপ্রাপ্ত আসামী যথাক্রমে (১) সরোয়ার কামাল (২) মীর কাশেম ও (৩) দরবেশ আলী সর্ব সাং- নাইক্যংখালী, টেকনাফ থানা মামলা নং ৮(৭)৮১ ধারা ৩০৪/৩৪/১০৯/৩২৩/৩২৪ বিপিসি স্পেশাল ট্রাইবুনাল মামলা নং ২৫/৮৭ ধারা ৩০৪/৩৪ বিপিসিতে বিজ্ঞ বিচারাদালত সরোয়ার কামাল, মীর কাশেম ও দরবেশ আলীকে দোষী সাব্যস্ত করিয়া ৮-৬-৮৯ইং তারিখে প্রত্যেককে ১০ (দশ) বছর করিয়া কারাদন্ড এবং ১০,০০০/-(দশ হাজার) টাকা জরিমানা অনাদায়ে দুই বছরের কারাদন্ডে দন্ডিত করেন;
২। যেহেতু সরকার উল্লেখিত আসামী যথাক্ররমে সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফের সিদ্ধান্ত গ্রহন করিয়াছে;
৩। এখন যেহেতু বাংলাদেশ সংবিধানের ৪৯ নং অনুচ্ছেদ এবং ফৌজদারী কার্যবিধির ৪০১(১) ধারা ক্ষমতাবলে সরকার উল্লেখিত মামলার আসামী সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফ করিয়াছেন।
৪। এই আদেশ অনতিবিলম্বে কর্য্যকারী হইবে।

রাষ্ট্রপতির আদেশক্রমে
(দিলরুবা)
সিনিয়র সহকারী সচিব

নং ১৪৩/১(৬)/পি-৪৫/৯২ (কারা-২) তারিখঃ
অনুলিপি অবগতি ও প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য প্রেরন করা হইলঃ-

সচিব, রাষ্ট্রপতির সচিবালয়, বংগভবন, ঢাকা
সচিব, প্রধান মন্ত্রীর কার্য্যলয়, পুরাতন সংসদ ভবন, তেজগাঁও, ঢাকা
মহা-পুলিশ পরিদর্শক, পুলিশ সদর দপ্তর, ঢাকা
মহা- কারা পরিদর্শক, কারা অধিদপ্তর, ঢাকা
জেলা প্রশাসক, কক্মবাজার এই প্রসংগে তাঁহার স্মারক নং ৩-১৬/৯৯-৯০৯৫/জেএম তারিখ ১৫-১২-৯১ইং এর বরাতে
উপ-মহাকারা পরিদর্শক, চট্রগ্রাম বিভাগ, কেন্দ্রীয়া কারাগার, কুমিল্লা

(দিলরুবা)
সিনিয়র সহকারী সচিব

It appears from the above order that the case number has been mentioned as Special Tribunal Case No.25 of 1987. But fact remains that the petitioner was convicted in Special Trial Case No.25 of 1987. In the above order of remission of sentence the case number has not been mentioned correctly, which clearly shows non application of mind of the authority concerned. Further in the said memo it has been written as under:

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২। যেহেতু সরকার উল্লেখিত আসামী যথাক্রমে সারোয়ার কামাল, মীর কাশেম ও দরবেশ আলীর সাজা মওকুফের সিদ্ধান্ত গ্রহন করিয়াছেন;
৩। এখন যেহেতু বাংলাদেশ সংবিধানের ৪৯ নং অনুচ্ছেদ এবং ফৌজদারী কার্যবিধির ৪০১(১) ধারা ক্ষমতাবলে সরকার উল্লেখিত মামলার আসামী ১। সরোয়ার কামাল, ২। মীর কাশেম ও দরবেশ আলীর সাজা মওকুফ করিয়াছেন;
(the under line has given by us)

The above language of the order also has raised a pertinent question in our mind how the Government had exercised the power under Article 49 of the Constitution, the power which must be exercised by the President as per the Rules of Business. Since the Government failed to produce the relevant file and in the affidavit the State (opposite party) did not state any fact with regard to the same it is not possible for us to determine how and on which date and what manner the file was initiated by the Government, and whether the relevant file was at all placed before the President; even if, the file was placed before the President then what materials were posted for his consideration to give pardon and remit the sentence of the petitioner. Because of non production of the said file the Government have deprived us to answer properly all those questions. This dark part of the process of remission of sentence is unlikely to see the light. But we are of the view that Government has got no authority and jurisdiction to exercise the power under Article 49 of the Constitution. Government can exercise power under Section 401(1) of the Code of Criminal Procedure to suspend or remit sentences of a convict. In the present Case the Government in exercising power under Article 49 of the Constitution, as it evident from the order dated 12.04.1993, exceeded its jurisdiction.

Similar question has been settled in the case of Maru Ram Vs. Union of India, reported in AIR 1980 (SC), page 2147. In the said Case it has been held;

“It is apparent that superficially viewed, the two powers, one constitu-teonal and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest function-aries of the Union and the State. The source is different, the sub-stance is different, the strength is different, although the stream may be flowing along the same bed.”

Mr. Tamizuddin, the learned Advocate for the petitioner has tried to convince us that the Court may only inquire whether fraud has been committed in procuring the pardon or remission of sentence but in other case the Court has got no power to interfere or examine or touch the order passed by the President under Article 49 of the Constitution.

So far our knowledge goes neither the Appellate Division nor the High Court Division of our Supreme Court has decided the issue whether the court particularly the High Court Division in its appropriate jurisdiction has any power or authority to examine the exercise of power under Article 49 of the constitution by the President. But the Supreme Court of India in several cases has decided the power and jurisdiction of the Court in the above issue.

It is pertinent to mention here that Article 72 and Article 161 of the Constitution of India are similar to Article 49 of our Constitution. Article 72 and 161 of the Constitution of India have conferred power upon the President of India and the Governor of the States respectively to give pardon or remit sentence of a convict.

In the Case of Maru Ram –Vs- Union of Indian, reported in AIR(SC)1980, page-2147, it has also been held that;

“Considerations for exercise of power under Articles 72/ 161 may be myriad and their occasions protean and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or malafide. Only in these rare cases will Court examine the exercise.”

In the case of Kehar Singh -Vs- Union of India reported in AIR 1989(SC), page-653, it has been held that;

“Upon the consideration to which we had adverted, it appears to us clear that the question as to the area of President’s power under Art. 72 falls squarely within the judicial domain and can be examined by the Court.”

In the case of Swaran Singh–Vs- State of U.P. and others, reported in (1998) SCC, page-75, it has been held that;

“In view of the said aforesaid settled legal proposition, we can not accept the rigid contention of the learned counsel of the third respondent that this Court has no power to touch the order passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrary, malafide or in absolute disregard of the finer canons of the constitutionalism, the by product order can not get the approval of law and in such cases, the judicial hand must be stretched to it.”

In the above case Shri Doodh Nath, an MLA of the Uttar Pradesh Assembly, was convicted of the offence of murder and sentenced to imprisonment for life. But within a period of less than two years, he succeeded to come out from prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. That order of the Governor was challenged before the High Court of Allahabad by the son of the deceased, Swaran Singh. A Division Bench of High Court dismissed the petition on the premise that a decision of the Governor under Article 161 of the Constitution of India is not justiciable. Against the said order of the High Court, Swaran Shing moved before the Supreme Court. The Supreme Court of India ultimately quashed the order of remission of sentence of convict Shri Doodh Nath, an MLA of Uttar Pradesh, on the ground that Governor was not posted with material facts and thereby, he was apparently deprived of the opportunity to exercise the powers in a fair and just manner. And the Supreme Court of India held that; “the order now impugned fringes on arbitrariness.”
And the Court also quashed the said order of remission of sentence.

In the case of Shatapal and another –Vs- The State of Hariana, reported in AIR 2000(SC), page-1702, similar view has been reiterated. In the said case also the order granting pardon was set aside on the ground that Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by the Court.

In the above case the order of the Governor of State of Haryana granting pardon remitting the unexpired portion of the sentence on prisoner Shri Siriyans Kumar Jain, who belonged to ‘Bharotio Janata party’, in exercise of power conferred by Article 161 of the Constitution of India was challenged by one of family members of deceased Krishan Kumar who was murdered during a local Government election held in the year 1987. The trial court convicted Siriyans Kumar Jain and four others under Section 302 read with 149/120B of Indian Penal Code and sentenced each of them for imprisonment for life. On appeal the High court of Panjab and Haryana maintained the conviction of 2(two) persons but acquitted Siriyans Kumar Jain and two others from the charges brought against them. Against the said order of acquittal the State of Haryana preferred appeal before the Supreme Court of India. Ultimately, the Supreme Court of India set aside the order of the acquittal of accused Siriyans Kumar Jain and another and they were directed by the Supreme Court to surrender to custody in order to serve out the remaining part of their sentence. Convict Siriyans Kumar Jain instead of surrendering to serve the sentence, as directed by the Court, filed an application before the Governor invoking the provision of Article 161 of the Constitution of India. The concerned authority after taking opinion of the Legal Remembrance placed the file before the Chief Minister, who agreed with the opinion of the legal Remembrance that this is fit Case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. The Governor finally granted pardon on the basis of the advice of the Chief Minister.

In deciding the merit of the above appeal the Supreme Court of India categorically held that;

“There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor tran-sgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a malafide one or the Governor has passed the order on some extraneous consideration.”

In the above mentioned Case the Supreme Court of India observed that certain vital facts concerning the prisoner were not placed before the Governor particularly the fact that the Supreme Court of India by its Judgment and order dated 10.12.1998 set aside the order of acquittal directing Seriyans Kumar Jain to surrender to custody in order to serve out the remaining part of his sentence and he did not comply with the said Court’s order and on 25.10.1999 when the order was passed he was not confined in jail and he only surrendered before the Court of Sessions, Hissar on 02.02.1999 and also was released on the very same day in view of the Governor order dated 25.01.1999. In the said Case the ultimate conclusion of the Court is as under:

“In the aforesaid premises, we have no hesitation to come to the conclu-sion that the order in question has been vitiated and the Governor has not been advised properly with all the materials and, therefore, we have no other option than to quash the said order dated 05.01.1999.”

In view of the above proposition of law of this Sub continent, though those are not binding on us; but it has got persuasive value, we are unable to accept the submission of the learned advocate of the petitioner that this Court has no power to examine or touch the order passed by the our President exercising the power under Article 49 of the Constitution.

Thus, we are of the view that the Court can not fold its hand in despair and declare ‘judicial hands off’. So long as the question arises whether an authority under the Constitution has acted with the limit of its power or exceeded it or the power has been exercised without application of mind and mechanically or the order in question is a malafide one or the order has been passed on some extraneous consideration or how far the order is fair and reasonable it can certainly be examined and decided by the Court. The Court can not be debarred to examine the decision making process and the correctness of the decision itself.
Bearing in mind the above proposition of law, let us now decide the fate of the present Rule.

At the outset, it is necessary to mention that we are conscious about the jurisdiction of this Bench that this Bench has no power to deal with the constitutional matter. But to decide the issue involved in the Rule particularly, the terms of the Rule, where the petitioner has sought direction to give effect the order of pardon remitting his sentence, we can not fold our hands off and shut our eyes from examining the order dated 12.04.1993 of the Ministry of Home Affair’s to remit the sentence of the petitioner.

Since the Government failed to produce the relevant file we called for the record of Criminal Appeal No.611 of 1989 from our record room. It appears from the said record that the judgment and order of the High Court Division dated 22^nd and 23^rd September, 1992 along with the lower Court was sent to the Court below on 19.12.1992. At the time of disposal of the appeal the appellant was directed to surrender before the trial Court to serve out his remaining sentence.

Mr. Tamizuddin, the learned Advocate of the petitioner submits that while the petitioner was inside the jail before granting bail by the High Court Division, the wife of the petitioner filed an application to the President for pardon and remission of the sentence of the petitioner and he was on bail when the order of remission of sentence was passed. In absence of the original file it is very difficult to determine when the application of the petitioner’s wife was filed before the competent authority and was placed to the concerned Ministry and before the President; what materials were placed or posted before the President or the Government in support of the prayer of pardon of the petitioner; whether any information as to the dismissal of the Criminal Appeal No.611 of 1989 and maintaining the conviction by the High Court Division with the copy of the judgment and order were at all placed before the President or the Government. But from the record before us it manifests that though at the time of disposal of the appeal the High Court Division directed the petitioner to surrender to the trial Court, the petitioner without complying the said order of the High Court Division had pursued for his pardon. We have already noticed that on 19.12.1992 the judgment and order along with lower Court record was sent to the court below and the order of pardon was passed on 12.04.1993. It is clear that in between the said period the petitioner was an absconder and fugitive from law and justice. In the application for pardon addressed to the President, as evident from supplementary affidavit filed by the petitioner, a date has been mentioned as 13.06.1991 with regard to the preparation of the application; but there is no proof of it that on that particular date the application for pardon was filed by the wife of the petitioner to the competent authority in order to place it before the President. On perusal of the said application it appears to us that in the said application not a single word has been mentioned or stated about the pendency of Criminal Appeal No.611 of 1989 before the High Court Division. Even in the application dated 18.08.1997 filed before the Assistant Sessions Judge Cox’s Bazar by which the petitioner prayed for recalling the warrant of arrest also did not mention about the judgment and order of the High Court Division passed in Criminal Appeal No.611 of 1989 and as well as the direction given to him to surrender to serve out the remaining Sentence. From the order dated 12.04.1993 it is also evident that in the said order nothing has been mentioned with regard to the Criminal appeal. In view of the above one feature is very clear that though the petitioner was granted bail on 28.08.1991 in the said appeal till disposal of the same but after disposal of the Criminal Appeal on 03.09.1992 his bail ipso facto stood cancelled and the High Court Division without allowing him any time, directed to surrender to the trial Court. In view of the above, the petitioner ought to have surrendered to the trial Court without making any further delay but he did not surrender and as such he became a fugitive and the order of pardon was made on 12.04.1993 when he was fugitive. The petitioner without surrendering to Court concerned had pursued for remitting his sentence before the President and the Government and ultimately managed to obtain the said order.

Even if, we accept the statement of the petitioner as true that while he was inside the jail his wife made the application before the authority concerned; in that situation after disposal of the criminal appeal either the petitioner or his wife should have informed the authority concerned about the judgment and the direction of the High Court Division as the matter of pardon was under process.

In view of the above facts and circumstances it is a pertinent question when a person is fugitive from law and justice in that situation whether the President or the Government can give pardon or remit the sentence of a fugitive in exercising extraordinary power under Article 49 of the Constitution or under Section 401(1) of the Code of Criminal Procedure, as the case may be.

To decide the said issue it is relevant to discuss the proposition of law enunciated by our Appellate Division with regard to fugitive.

It is the consistent view of our Appellate Division that a man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistance of the process of justice in order to claim right of audience against the process of the Court issued against him. In the cases of Chand –Vs- Crown, reported in PLD 1956 (FC), page-43, Gul Hassan –Vs- The State, reported in 21 DLR (SC), page-109, Anti-Corruption Commission –Vs- Mahmud Hossain and others, reported in 61 DLR (AD) page-17, Anti-Corruption Commission –Vs- ATM Nazimullah Chowdhury and others, reported in 62 DLR (AD), page-25, Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others reported in 15 BLC(AD) page-45, our Appellate Division has enunciated the above proposition of law.

In the case of Anti-Corruption Commission –Vs- Dr. HBM Iqbal Alamgir and others, reported in 15 BLC (AD), page-44 it has been held that;

“It is well settled that when a person seeks remedy from a Court of law either in writ jurisdiction or criminal appellate, revisional or miscellaneous jurisdiction under Section 561A of the Code of Criminal Procedure he ought to submit to the due process of justice. Let it be made clear to him, if it is not already known that Court would not act in aid of an accused person who is a fugitive from law and justice”.

In the above case it has also been held that;

“Besides, the learned Advocates who move applications for the fugitives shall have to face the consequence of committing contempt of Court.”

The learned Assistant Sessions Judge by its order dated 30.06.1997 issued warrant of arrest as well as the conviction warrant against the petitioner when the Assistant Public Prosecution brought notice of the Court that in compliance of the order of the High Court Division passed in Criminal Appeal No. 611 of 1989 the petitioner did not surrender before the Court concerned to serve out his remaining sentence.

On coming to know about the said order the petitioner though his Advocate on 27.08.1997 filed an application to recall the above order dated 30.06.1997 and the Court refused to interfere with the said order of arrest and conviction warrant on the ground that the petitioner being a fugitive can not get justice from the Court unless he surrenders first. The above finding of the learned Assistant Sessions Judge is very consonant with the settled proposition of law that a fugitive from justice is not entitled to obtain a judicial order defying the process of the Court. Even the petitioner without surrendering to the process of Court moved the application under Section 561A read with Section 498 of the Code of Criminal Procedure before this Court and obtained the Rule and bail. We could not understand how the application of a fugitive was entertained; even before swearing the affidavit no permission was taken from the learned Judges of the concerned Bench. In such situation we can make only comment that the petitioner no doubt a fortunate person, who not only managed to obtain the order of pardon, remitting his sentence, but also succeeded to obtain Rule and bail without surrender, defying the process of Court.

Having considered the above settled proposition of law with regard to a fugitive, we are of the view that in passing the order dated 27.08.1997 refusing to recall the order dated 18.08.1997 the learned Assistant Sessions Judge did not commit any error or illegality. It is also an admitted fact that when the petitioner moved the application under Sections 561A read with 498 of the Code of Criminal Procedure he was fugitive from justice and as such we are unable to give any relief to a fugitive to quashing or setting aside the orders dated 30.06.1997 and 31.08.1997 respectively passed by the learned Assistant sessions Judge, Cox’s Bazar.

It is well settled that the Court can not direct the President how he is to exercise the power under Article 49 of the Constitution. Similarly, the Court also can not direct the Government how they exercise the power under Section 401 of the Code of Criminal Procedure. But the action of the President or the Government, as the case may be, must be based on some rational, reasonable, fair and relevant principle which is non discriminatory and it must not be guided by any extraneous or irrelevant considerations. It is well settled that all public power including constitutional power shall never be exercisable arbitrarily or malafide and ordinarily, guideline for fair and equal execution are guarantors of the valid play of power and when the mode of power of exercising a valid power is improper or unreasonable, there is an abuse of power.

On perusal of the application filed by the wife of the petitioner as it has quoted in the supplementary affidavit it appears that she prayed pardon mainly on the ground that her husband (the petitioner) and his two political well wishers namely Mir Khashim Ali and Darbesh Ali were victimized for political reasons and their political opponent implicated them in the false Case.

The last paragraph of the said application is as under;

“এমতাবস্থায় রাজনৈতিক অন্যায় ষড়যন্ত্রর অহেতুক শিকার অধীনের স্বামী সারওয়ার কামাল ও তৎদুই রাজনৈতিক ও শুভানুধ্যয় ও শুভাকাংখী জনাব মীর কাশেম ও দরবেশ আলী মেম্বারের বিরুদ্ধে আনিত মিথ্যা অভিযোগের দায় হইতে উক্ত ব্যক্তিগণকে আদালত কর্তৃক প্রদত্ত দন্ড মার্জনা পূর্বক শহীদ জিয়ার আকাংখীত আদর্শ ও উদ্দেশ্যে দেশনেত্রী বেগম খালেদা জিয়ার নেতৃত্বে বাস্তবায়নসহ দুই মরন পথযাত্রী সম্ভ্রান্ত পরিবারকে রক্ষা করার পক্ষে প্রয়োজনীয় ব্যবস্থা গ্রহনের নিমিত্ত অধীনি আপনার সহূদয় করুনা প্রার্থী।”

On perusal of the record of Criminal Appeal No.611 of 1989 it appears to us that the occurrence took place with regard to a land dispute.

It was the prosecution Case that on the date and time of occurrence while Badiur Rahman, the informant, along with his brother Lokman Hakim, Tajur Muluk (the deceased) along with other relations were cultivating their lands in plot No.735,736 and 776 measuring 2.83 acres accused Sarwar Kamal along with 20(twenty) others armed with various deadly weapons like ‘longa’, ‘dao’, ‘lathi’, ‘iron rod’ and ‘khanta’ etc. attacked them with a view of dispossessing them from the said land; eventually, at the order of the convict Sarwar Kamal Convict Mir Kashem Ali hit, with a dao, on the head of the victim Tajur Muluk and there after convict Darbesh Ali also gave some more blows on him and victim Tajur Muluk became senseless with bleeding injuries. The victim Tajur Muluk was taken to the Dulhajare Hospital for treatment where he ultimately succumed to his injuries after 3(three) days.

On careful examination of the judgment of the High Court Division as well as the trial Court it appears that the defence never put any suggestion to the prosecution witnesses that the present petitioner had been implicated in the case for political victimization by his opponent political group.

We have already observed that we have been deprived to know what materials were placed before the President or the Government for its/their consideration to give pardon to the petitioner; but, from the application of the wife of the petitioner it is evident that the petitioner was convicted for political victimization and no relevant documents were annexed or submitted with the said application.

We do not find any nexus between the statements made in the application for pardon and the prosecution story, material evidence on record and the judgment of the trial Court. On perusal of the judgments of the trial Court and the appellate Court hardly, there is any scope to say that the trial was held against the petitioner to victimize him with political ill motive.

The learned Advocate of the petitioner as well as Deputy Attorney General failed to satisfy us by showing any important piece of document what materials were placed or posted to the President or the Government for its consideration, other than an application for pardon of the wife of the petitioner.

In this connection we are of the view that when a convict seeks pardon from the President or the Government he must supply the following materials with the application for pardon; namely-

the First Information Report and Police Report;
the evidence;
judgment of the trial Court and appellate Court, if any;
information whether during trial or appeal the convict was on bail or in custody or on absconsion;
how long the convict is in custody after conviction and what actual period of sentence he has served;
whether the convict is an accused or convicted in any other Case or Cases.

In addition to the above materials the authority concerned has to collect a report from Jail authority about the conduct and behavior, when the convict was in jail.

It is the proposition that a decision must be arrived at after taking into account all relevant considerations, eschewing all irrelevant considerations can not for a moment be doubted.

It the instant Case if, the President and the Government gave pardon to the petitioner only considering the statement made in the application for pardon, filed by his wife, without taking into consideration of other relevant materials, certainly the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure has vitiated the order of pardon as the said order is a mechanical order and the product of favoritism, extraneous and malafide factors.

The petitioner also failed to show us that after disposal of the Criminal Appeal he had intimated about the judgment of the appellate Court to the President or the Government as well as the order of the High Court Division directing him to surrender before the trial Court to serve out his remaining sentence.

If, the said facts and materials were placed before the President and Government the decision of the President or the Government would have been otherwise. Because, it is presumed that the President and the concerned authorities of the Government are well conversant with the law that if a fugitive from law is given pardon knowing his status then the exercise of power under Article 49 of the Constitution or section 401(1) of the Code of Criminal Procedure certainly be arbitrary, malafide, unreasonable, irrational and improper and such exercise of power is against the principle of the rule of law and an abuse of the power. If the President or the Government given such indulgence to a fugitive, ignoring and avoiding the direction of the Court and allow the fugitive to approach him/them straight and give him pardon exercising extraordinary power, a day will come when the Criminal administration of justice certainly be collapsed. In view of the principle of rule of law the Court can not approve such exercise of power, in favour of a fugitive, which is absolutely malafide, arbitrary and unreasonable. Fairness, reasonableness and bonafide are the essence of the rule of law.

Further, the decisions of the Appellate Division are institutional decision and the decision is binding as a law. When the Appellate Division categorically and consistently held that a fugitive is not entitled to seek any kind of redress as against his grievance, if any, then the pardon given to a fugitive is absolutely disregard to the said law and the Supreme Court. It is desirable that all concerned including the President and the Government should respect the law declared by the Supreme Court and the Government functionaries are obliged to act in aid of the Supreme Court in view of the provisions of Article 112 of the constitution.

Having considered the facts and circumstances of the present Case and the proposition of law we are of the view that the order dated 12.04.1993 remitting the sentence of the petition in exercising power under Article 49 of the constitution and section 401(1) of the Code f Criminal Procedure has vitiated on the following reasons:

the petitioner was a fugitive from law when the order of pardon was made;
the petitioner in procuring the order of pardon concealed the material facts; particularly, the pendency of the Criminal Appeal No.611 of 1989 before this High Court Division and the judgment of the High Court Division passed in the said appeal maintaining the order of convic-tion and directing him to surrender to the Court below to serve out the remaining sentence.
the petitioner without surrender-ing to the process of the Court, as per direction of the High Court Division succeeded to procure the order of pardon;
the alleged order is a mechanical one and product of party favo-uritism, extraneous and malafide factors and also not fair, reason-able and rational; which is against the sprit of the rule of law;
the conduct of the petitioner does not show that he with clean hands moved before the President and the Government;
it is not clear from the order that whether the President at all exercised the power conferred upon him under Article 49 of the Constitution, as in the said order it has been mentioned that the Government has taken the decision to remit the sentence of the petitioner and for this ambiguity and anomaly it reflects non application of mind of the concerned authorities of the Government.

Thus, we are not inclined to direct the First Court of Assistant Sessions Judge, Cox’s Bazar to give effect the order of Pardon dated 12.04.1993 remitting the sentence of the petitioner as per the terms of the first portion of the Rule.

On the other hand the trial court rightly issued the warrant of arrest as well as the conviction warrant on 30.06.1997 when the Judgment and order of the High Court Division passed in Criminal Appeal No. 611 of 1989 was brought to the notice of it and subsequently on 31.08.1997 rightly refused to interfere with his earlier order on the ground that the petitioner was a fugitive. In passing the order on 30.06.1997, the learned Assistant Sessions Judge before issuing the warrant of arrest held that; “অতএব, তাহার অনুকুলে প্রদত্ত জামিন বাতিল করা হইলz” This finding of the learned Assistant Sessions Judge is irrelevant and uncalled for. Because, after the disposal of the appeal in the High Court Division, the bail given to him ipso facto stood cancelled. When there was no bail, question of cancellation of bail does not arise at all. Apart from the above observation, the orders dated 30.06.1997 and 31.08.1997 respectively are based on sound principle of law and thus, we are not inclined to interfere or to quash the said orders. The learned Assistant Sessions Judge passed the said orders within its jurisdiction. Moreso, when the petitioner moved the application before this Court in its revisional jurisdiction he was a fugitive. It is true that the petitioner in the cause title of the application mentioned section 498 with section 561A of the Code of Criminal Procedure. Mentioning the section 498 of the Code of Criminal Procedure by itself did not change his status of fugitive. Section 498 of the Code of Criminal Procedure is not at all applicable in the facts and circumstances of the present case; rather it was an attempt of the petitioner to mislead the Court. Moreso, the petitioner was not advised properly.

Further, in exercising power under Section 561A of the Code of Criminal Procedure we have no scope to direct the authority concerned to give effect of the alleged order of pardon, since it is an executive order, not an order passed in a pending proceeding.

In view of the above, we are inclined to discharge the Rule.

Accordingly, the Rule is discharged.

The petitioner is directed to surrender before the court below within 6(six) weeks from the date of receipt of the judgment and order of this Court.

However, the petitioner is at liberty to file fresh application for pardon, complying the observations made in this judgment, if so advised, and the President or the Government may reconsider the prayer of pardon of the petitioner in the light of the relevant materials in accordance with constitution and law. This judgment will not be a bar for such reconsideration.

It appears from the order sheet annexed by the petitioner in the supplementary affidavit, annexure-C, that the trial Court sent the record to the High Court on 03.07.1989 by its order No.35. After disposal of the appeal the record was sent to the trial Court on 19.12.1992 but it appears from the said order sheet that the order of the High Court was not brought to the notice of the concerned judge and the record was sent to the record room behind the back of the learned judge.

It is absolutely misconduct on the part of the concerned officials who did not bring notice of the judgment of the High Court Division to the concerned trial Judge.

In view of the above, we direct the learned Assistant Sessions Judge, 1^st Court, Cox’s Bazar to make an inquiry why after disposal of the appeal when the lower Court record was sent to the said Court with a copy of the judgment and order of the Criminal Appeal same was not placed before the presiding Judge and he is also directed to take departmental action against the concerned person/persons who is/are liable for such misconduct.

Considering the facts and circumstances of the instant case our conscience pricks to say few words to express our anxiety.

Sub-section (1) of section 401 of the Code of Criminal Procedure has empowered the Government to suspend or remit sentence, either whole or party of the punishment to which a convict has been sentenced; on the other hand sub-section (3) of the said section has empowered the Government to cancel the suspension or remission of sentence and to take the concerned person into custody, if at large, to undergo the unexpired portion of sentence; sub-section (2) of the section makes a provision that the Government may require the Presiding Judge of the Court before or by which the conviction was had or confirmed to state is opinion as to whether the application should be granted or refused.

Having regard to the fact that to exercise the above power by the Government there is no Rule or standard guideline. Thus, we are of the view that for fair, proper and boanafide exercise of the above power Government may frame Rule and guideline or even amend the Code, as has been done in one of our neighbouring countries. Possibly, this is the high time for the Government to think over the matter to avoid controversy, criticism and misuse of power.

Let a copy of this judgment and order be sent to the trial court as well as the Secretary to the President, Secretary Ministry of Home Affairs and Secretary Ministry of Law Justice and Parliamentary Affairs for their appraisal and future guidance.

Ed.

Sarwar Zaman Vs.Yongtai Industries Bangladesh Ltd. and another, IV ADC (2007) 855

Case No: Civil Petition for Leave to Appeal No. 654 of 2005

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. AKM Shahidul Huq,,

Citation: IV ADC (2007) 855

Case Year: 2007

Appellant: Sarwar Zaman

Respondent: Yongtai Industries Bangladesh Ltd.

Subject: Company Matter,

Delivery Date: 2006-8-20

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Md. Tafazzul Islam J

Sarwar Zaman
…….........Petitioner
Vs.
Yongtai Industries Bangladesh Ltd. and another
……........Respondent

Judgment
August 20, 2006.

The Companies Act, 1994
Section 81(2), 85(3)
Under section 81 (2) of the Companies Act 1994 empowers the Court to call or direct the calling of the annual general meeting of the company upon an application of any member of the company and accordingly the petitioner could have filed an application as a member of the company and that his filing of the application describing himself as Managing Director of the Company is motivated and the application is based on a false premise in as much as the application does not contain a correct description of the petitioner and accordingly the application is liable to be rejected as not maintainable.

Lawyers Involved:
M.A. Aziz Khan, Advocate (appeared with the leave of the Court) instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For the Petitioner.
Not represented- the Respondents

Civil Petition for Leave to Appeal No. 654 of 2005
(From the judgment and order dated 9th May, 2005 passed by the High Court Division in Matter No. 4 of 2005).

JUDGMENT

Md. Tafazzul Islam J.

1. This petition for leave to appeal is directed against the judgment dated 9.5.2005 passed by Company Bench of the High Court Division in Matter No. 4 of 2005 rejecting the application filed by the petitioner under section 81(2) read with section 85(3) of the Companies Act, 1994 holding that the above application is not maintainable.

2. The petitioner filed the above Matter No.4 of 2005 seeking condonation of delay for holding statutory first annual general meeting of Yongtai Industries Bangladesh Ltd, hereinafter referred to as the company, stating that he is the managing director, promoter and sponsor director of the company which was incorporated on 7.4.2003 as private limited company under the Companies Act, 1994; the sponsor directors initially made subscription as under:

Sl. No.	Shareholder’s name	No. of Shares	% of shares
1	Yu Xiang, Li	550	55%
2	Jeffrey Ling	150	15%
3	Hin Wah, Tarn	150	15%
4	Sarwar Aaman	150	15%

Total Shares 1000 100% The company is a 100% export oriented joint venture; the petitioner was appointed as its first managing director for a period of one year as is evident from Article 30 of the articles of association of the company and he having established the company remained busy in getting orders from foreign buyers, arranging capital, going into production in quickest possible time and making a commendable headway and due to above and also extraordinary pressure of work which was exaceserated due to power failure, political/labour unrest, flood and other export difficulties he could not take appropriate care for complying the statutory formalities for holding the annual general meeting, hereinafter referred to as AGM, of the company; subsequently steps for holding the AGM and to complete other statutory formalities were also taken but since Mr. Jeffery, one of the director, having suffered heart attack went back to China and he never returned and Mr. Hin Wah, another Director, also resigned situation arose which was hardly conducive to hold the first AGM; subsequently, attempts were made to appoint three new directors, increase share capital to 2000 shares and issuing/redistributing the shares among directors by transacting such business through the meeting of Board of Directors as the statutory AGM could not be held but subsequently it became known that the above transactions of the business of the company through the meeting of the Board of Directors were unlawful, the company decided to hold the AGM by filing application before of the High Court Division under section 81(2) read with section 85(3) for condonation of delay and hence the application.

3. An application affirmed by one Li Tze Keung, claiming him as the managing director of the company, was then filed contents of which were however subsequently corrected by two supplementary affidavits affirmed by one Hossain M. Zahedi on the basis of power of attorney of said Li Tze Keung, wherein prayer was made for adding Li Tze Keung as respondent No. 2, stating inter alia that the company was registered on 7.4.2003 and the petitioner having 15% shares was made the Managing Director of the company for a period of one year from the date of incorporation of the company; 85% of the shareholders were foreign investors from China and Hong Kong and the majority shareholder Mr. Yu Xiana Li having 55% shares of the company, was appointed the chairman of the company; a meeting of the Board of Directors for appointment of new directors and increasing the shares in the company was also held in Dhaka on 6.6.2004 notice of which was duly issued by the petitioner who at that time was the managing director of the company; at that meeting two new directors were inducted in the company, one being Li Tze Keung from Hong Kong and the other was Hossain M. Zahedi from Bangladesh and thereby the number of directors of the company was raised to six and the petitioner himself was also present in the said meeting and subsequently the petitioner recorded the names of the above directors with the Registrar of the Joint Stock Companies; than an AGM of the company was called on 13.12.2004 after due service of notices upon the shareholders with the agenda for the appointment of a new Managing Director as there were number of complaints regarding the landling of the company's affairs and its finances by the petitioner; further at that time, the petitioner drawing handsome salary, was supposed to act as the full time Managing Director of the company but, as was revealed, he at that time was also working as full time paid Managing Director of another company named 'Wordy Ltd.' which was also engaged in similar garment export business and as a result company suffered significant loss due to lack of proper attention in running the business of the company; moreover it was a legal necessity to appoint a new Managing Director as the tenure of the petitioner expired on 6.3.2004; further despite repeated requests from the Chairman as well as other shareholders the petitioner did not submit any financial statements nor did he got the account of the company audited so that the statutory meeting of the company could be held; although the notice was served upon the petitioner 21 days prior to the meeting and despite the fact that the majority shareholders were coming from Hong Kong and China to attend the meeting for the important purpose of electing the Managing Director/Chief Executive Officer of the company, the petitioner sent letter addressed to the chairman of the company, which was duly presented in the meeting held on 13.12.2004, stating that for unavoidable circumstances he would not be able to attend the above meeting; one of the items in the agenda of the said meeting was to appraise the company of the completion of the statutory formalities for which the petitioner was asked to furnish the statement of account of the company which he was single handedly controlling and operating including signing of the cheques as the only signatory but the petitioner also did not provide the shareholders the statements which he was asked to furnish; in the above circumstances in the said meeting held on 13.12.2004 the shareholders appointed Mr. Li Tze Keung as the new Managing Director; the petitioner then to disrupt the business of the company asked the internet service provider to discontinue service although the above service was in the name of the company and the fees were paid from the account of the company; further the petitioner took away all the important documents of the company including the cheque books, customs documents and all documents relating to its accounts and also withdraw Tk. 8,00,000/- (taka eight lacs) from the account of the company two days after a new Managing Director was appointed leaving the account of the company dry and the petitioner also did not spend the above amount for the purpose of the company and thereby misappropriated the said amount; further the petitioner had also been creating problems for the company by falsely stating to the Chairman and General Manager of BEPZA and others that he was the Managing Director of the company; further the petitioner, claiming himself to be the Managing Director of the company also filed the present application under sec 81(2) read with sec 85(3) of the Companies Act 1994 for condonation of delay in holding the AGM though following the said EGM held on 13.12.2004 and based on the resolution passed in it, the Registrar of Joint Stock Companies duly recorded the same and already issued the certified' copy of the Form XII recognizing Li Tze Keung as the Managing Director of the company; the company also made Ramna PS GD No. 1387 dated 17.12.2004 against the petitioner and also one Sohel, a former employee of the company, for taking away from the officer of the company all the official documents and earlier. Mr. Sohel also made a statement in writing admitting that on the instruction of the petitioner he removed the documents and files of the company from its office and pursuant to the above GD, the police on 10.3.2005 recovered from Sohel some documents including the cheque book maintained with HSBC Bank from where all the money was earlier withdrawn by the petitioner; further by a letter addressed to the police Sohel took the stand that all accounts and related documents have been handed over to Mr. M.A. Aziz Khan, Advocate, for 'audit purpose' and asked the police to get in touch with Mr. Khan for those though according to law all such documents are supposed to remain in the office of the company and not with a lawyer who was not even appointed by the company; since the petitioner in his application has made a number of allegations against the company as well as the Chairman and the duly appointed Managing Director of the company, those allegations, being false, need to be controverted and so the company should be made a party in the matter as the respondent No.2. The petitioner filed an affidavit-in-reply denying the statements made in the above affidavit-in-opposition.

4. Upon hearing of the application, the High Court Division by order dated 24.4.2004, allowed the application of the company for impleading it as respondent No.2 leaving the question as to who is the Managing Director of the company to be decided at the time of hearing of the merit of the main application. The operating part of the above order reads as follows:

"I have considered the submissions of the learned advocates. It appears that there are conflicting statements with regard to who is the Managing Director of the Company. However, since the petition deals with the AGM of the Company, it is felt that the company is & necessary party, particularly in view of the conflicting claims. In such circumstances I am inclined to allow this application. The matter of who is or is not the lawful Managing Director may be dealt with when considering the merit of this case. Accordingly, the application is allowed."

5. Subsequently when the matter was continuing as part heard matter; another application was filed on behalf of the respondent No. 2 Company praying for injunction against the petitioner more or less on the basis of statements similar to the statements made in the previous application praying for adding the company as respondent No.2.

6. As it appears before the High Court Division the learned Advocate appearing for the petitioner submitted that there had been difficulties in managing the affairs of the company due to the fact that one of the Director, Jeffrey Ling, on having a heart attack went back to China and another Director Mr. Hin Wah resigned creating a situation non-conducive to hold the AGM of the company and there were subsequent attempts to appoint three new Directors and to increase the share capital of the company to 2000 shares and issue/redistribute the shares among the directors through the meeting of the Board of Directors which could not be legally done before holding the statutory first annual general meeting and so the delay in holding the annual general meeting may be condoned so that the AGM of the company may be held. On the other hand the learned Advocate appearing for the respondent No.2 submitted that the petitioner was appointed as Managing Director for only one year and he not being re-appointed, is no longer the Managing Director of the company and as such cannot file the present application under section 81(2) of the Companies Act 1994 showing him as the Managing Director of the company and with regard to the appointment of new Directors and increase of the share capital the learned advocate submitted that the petitioner himself having taken steps for appointment of new 3 directors and a new Managing Director, cannot now disclaim his liability after the three new Directors have already been appointed and share capital of the company has been increased to 2000 shares.

7. The High Court Division, having found that petitioner was appointed as the ad-hoc managing director of the Company for 1 (one) year only and his tenure expired on 6.4.2004, held that the petitioner was not entitled to filed the application under section 81(2) of the Companies Act 1994 describing himself as the Managing Director of the company and in view of that matter High Court Division gave the learned Advocate for the petitioner an opportunity to correct the application by making necessary amendments in the above application filed under section 81(2) as the petitioner was no longer the Managing Director of the company but instead of making any such correction, the petitioner altered only the prayer portion for which the High Court Division, by the impugned order, rejected the above application holding that section 81(2) of the Companies Act 1994 empowers the Court to call or direct the calling of the annual general meeting of the company upon an application of any member of the company and accordingly the petitioner could have filed an application as a member of the company and that his filing of the application describing himself as Managing Director of the company is motivated and the application is based on a false premise in as much as the application does not contain a correct description of the petitioner and accordingly the application is liable to be rejected as not maintainable.

8. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference.

9. The petition is dismissed.

Ed.

Saudi Arabian Airlines Corporation Vs. M/S. Saudi Bangladesh Services Company Limited, VII ADC (2010) 361

Case No: Civil Petition for Leave to Appeal No. 1839 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Ajmalul Hossain QC,Mrs. Sigma Huda,,

Citation: VII ADC (2010) 361

Case Year: 2010

Appellant: Saudi Arabian Airlines Corporation

Respondent: M/S. Saudi Bangladesh Services Company Limited

Subject: Arbitration/Mediation,

Delivery Date: 2010-3-1

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim, CJ.
Md. Abdul Matin, J.
ABM Khairul Haque, J.
Md. Muzammel Hossain, J.
Surendra Kumar Sinha, J.

Saudi Arabian Airlines Corporation
.........Petitioner
Vs.
M/S. Saudi Bangladesh Services Company Limited
.........Respondent

Judgment
March 1, 2010.

The Arbitration Act, 2001
Section 43
It is a well settled principle of law that no allowance can be made for damages, which are remotely connected with the wrongful act complained of. Law makes allowance only for the direct consequences and refuses to consider any damage remotely resulting from the wrongful act. ……. (8)

The arbitration tribunal after being reconstituted decided to hear the matter afresh as two of its members being subsequently appointed, they were not aware of the contents of the earlier proceedings and felt that the entire matter be heard afresh to do justice. …….(9)

The High Court Division was pleased to set aside the award dated 08.06.2006 made by the majority decision of the Arbitration Tribunal on the ground that the award is opposed to public policy. …..(13)

Cases Referred To-
Nand Ram Vs. Fakir Chand reported in ILR 7(1885) All 523; Hindustan Petroleum Corporation Limited Vs. Environmental Engineers Ltd. and another (2001) 2 Comp 79 (Bom).

Lawyers Involved:
Nazmul Huda, Senior Advocate (Mrs. Sigma Huda, Advocate with him) instructed by Taufique Hossain, Advocate-on-Record-For the Petitioner.
Ajmalul Hossain, QC, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Respondent.

Civil Petition for Leave to Appeal No. 1839 of 2009.
From the judgment and order dated 05.01.2009 passed by the High Court Division in Arbitration Case No.02 of 2006.)

JUDGMENT

Md. Abdul Matin, J.

          This petition for leave to appeal is directed against the judgment and order dated 05.01.2009 passed by the High Court Division in Arbitration Case No.02 of 2006 setting aside the award dated 08.04.2006 passed by the Arbitration Tribunal in an arbitration proceeding held between the Saudi Arabian Airlines Corporation and M/S. Saudi Bangladesh Service Company Limited by allowing the application filed by the respondent under Section 42 read with Section 43 of the Arbitration Act, 2001.

2.         The facts, in short, are that the arbitration related to the alleged dispute which arose between the parties in the matter of the alleged failure of the respondent to deposit the sale proceeds for those tickets sold from the month of July till the 2nd of September 2002. It also dealt with the counter claim of the respondent, Saudi Bangladesh Services Company Limited, inter-alia, for 7% incentive commission on the sale of tickets from the inception of the said agreement. This counter claim was first made at the arbitration proceedings as an after thought. Under Article V (B) of the agreement, the respondent was under an obligation to transfer each month's sale of tickets' proceeds to the petitioner by the end of the next calendar month. In other words, the proceeds of the sale of tickets for the month of July 2002 became payable by August 31st 2002. The respondent however, in total violation of the terms and conditions of the agreement, defaulted in paying the said sale proceeds which caused the present petitioner to lose substantial money. The instant petitioner, then formally requested in writing to the respondent to pay the said amount of BDT 32,21,50,666.51/-. The respondent denied the claim of the petitioner.

3.         The present respondent, M/s. Saudi Bangladesh Service Company Limited had entered into the General Sales Agency Agreement (hereinafter to be referred to as the agreement) on 01.03.1995 for selling tickets initially for the territory of Sylhet and Chittagong. The parties (instant petitioner and respondent) subsequently extended the area of operation by the instant respondent, as GSA, to the territory of Dhaka by effecting an amendment agreement dated 27.01.2001. The said amended agreement contained specific terms, conditions and obligations which created the relationship of principal and agent whereby the respondent as general sales agent will sell the tickets of the principal/claimant against which the agent/respondent will receive commission at the agreed rate as per international practice. It was agreed between the parties that the rate of commission that the agent will be allowed to receive as normal commission will be 9% and that the overriding commission will be 3% over the normal commission i.e. the agent will receive 12% commission on the tickets' sale proceeds.

4.         It was agreed between the parties that before the expiry of each month, the respondent would have remitted all the sale proceeds of the transportation of the previous month to the instant petitioner. Before remitting the entire sale proceeds, the respondent and its sub agents, if any, will deduct, at source, their commission at the agreed rate. In the instant case, the sale proceeds for the month of July 2002 fell due towards the end of August 2002, i.e. by the 31st day of August 2002, which was the ultimate day for the remittance of sale proceeds of July 2002 to the petitioner.

5.         But most unfortunately, the respondents defaulted in making its commitment and did not remit the sale proceeds to the petitioner. The claimant then issued a letter on 03.09.2002 demanding payment of the outstanding amount accrued during the month of July 2002   totaling BDT 20,4,096,135.50 (Taka twenty crore four lac ninety six thousand one hundred thirty five and paisa fifty) only tentatively by 5th of September, 2002. However till the 7th of September, as no payment was effected and the outstanding sum was becoming bigger with each month's delay, the claimant could not wait any longer.

6.         It forwarded to the respondent on 07.09.2002, three debit memos containing the total sale proceeds of tickets during the month of July 2002. The said amount became due in three districts namely Dhaka, Sylhet and Chittagong respectively. In response, the respondent wrote a letter dated 16.09.2002 stating, inter-alia, that they have invested a huge amount of money in order to expand the claimant's business which they have estimated to be BDT 750 million. They admitted that there is a dispute with regard to the agreement and again proposed for amicable settlement by mutual discussion. It is to be noted that nowhere in this letter the respondent denied the claim of the claimant. They also did not deny the petitioner's claim of the outstanding sale proceeds for the months of July and August, 2002 in the meeting held in the chambers of the petitioner in the presence of both parties' lawyers on 21.09.2002. Instead, at the meeting and thereafter, the respondent proposed various modes for settling the outstanding amount for the months of July and August 2002, especially by installments. Even at that stage, the respondent did not claim his alleged 750 million Taka. On 26.09.2002 the claimant again demanded payment of the entire outstanding amount i.e. the total sale proceeds for the whole months of July, August 2002 and two days of the month of September 2002. The respondents failed to pay the sale proceeds amounting to Tk. 20,4,096,135.50 (Taka twenty crore four lac ninety six thousand one hundred thirty five and paisa fifty) for the month of July 2002 only. BDT 200,71,2091.40 (Taka twenty crore seventy one lac two thousand ninety one and paisa forty) only due for the month of August 2002 and two days for the month of September 2002 amounting to BDT 1,43,73,795.92 (Taka one crore forty three lacs seventy three thousand seven hundred ninety five and paisa seventy two) only. The total sum thus due from the respondent stood at BDT 41, 91, 82,022.61 (Taka forty one crore ninety one lacs eighty two thousand twenty two and paisa sixty one) only.

7.         The claimant, after adjusting the performance guarantee furnished by the respondent to the amount of USD1.50 million and the sale proceeds received from two subagents (which step the claimant had to undertake to mitigate further loss as per section 73 of the Contract Act) terminated the GSA Agreement on the ground of default under Article XI of the agreement by claiming the balance outstanding sum of Tk.32,27,50,566.51 (Taka thirty two crore twenty seven lacs fifty thousand five hundred sixty six and paisa fifty one).

8.         It was stated here that the respondent submitted its counter claim at the arbitration proceedings only to avoid the payment as claimed by the petitioner. It is a well settled principle of law that no allowance can be made for damages, which are remotely connected with the wrongful act complained of. Law makes allowance only for the direct consequences and refuses to consider any damage remotely resulting from the wrongful act. The respondents are themselves responsible for loss of their goodwill by defaulting in making the payment of the sale proceeds due to the claimant within the stipulated time. In fact the claimant's good will was at jeopardy because of the unlawful action of the respondent. It was submitted that the respondents had failed to prove the two criteria essential for claiming loss of goodwill or reputation: the first one is the actual occurrence of pecuniary loss-the respondent failed to produce any documents supporting such loss and secondly such loss was within the contemplation of the defaulting party at the time the contract was made. Therefore the counterclaim of the respondent is baseless and has no basis in the eye of law.

9.         The petitioner having failed to settle the matter amicably in respect of its lawful claim referred the matter to the arbitration by invoking arbitration clause as provided in the GSA Agreement. The said arbitration tribunal was initially constituted with late B.B. Roy Chowdhury, J, Sultan Hossain Khan, J and Mr. Amir-Ul Islam, Barrister-at-Law. With the death of B. B. Roy Chowdhury, J and the appointment of Sultan Hossain Khan, J as Chairman, Anti Corruption Commission, the tribunal was re-constituted with M. Habibur Rahman, J (Chairman), Dr. M. Zahir and M. Amir-Ul Islam. The arbitration tribunal after being reconstituted decided to hear the matter afresh as two of its members being subsequently appointed, they were not aware of the contents of the earlier proceedings and felt that the entire matter be heard afresh to do justice.

10.       The arbitration tribunal framed as many as 18 issues to decide the claim and the counter claim made by both the parties. The tribunal, on 08.04.2006, after considering the evidence on record, the relevant exhibits filed by both the parties the written statements of the parties and their replies and upon hearing the submissions of both the parties, awarded in favour of this petitioner (claimant), by their majority decision, the claimed amount of BDT 31,27,50,566.00/- and dismissed the counter claim of the respondent (GSA).

11.       A dissenting opinion was given by Mr. M. Amir-Ul Islam who allowed the claim of the claimant for the amount of Tk. 4,88,72,217.43/- and also allowed the counter claim of the respondent for Tk. 57,26,92,897.67/-against the petitioner.

12.       The present respondent, as petitioner, challenged the legality and propriety of the award given by the majority of the arbitrators and filed an Arbitration Case No.02 of 2006 before the High Court Division under Section 42 read with Section 43 of the Arbitration Act, 2001. The present petitioner appeared and filed an affidavit-in-opposition denying all the material allegations made in the said petition and sought for dismissal of the case stating that the petitioner, Saudi Airlines Corporation vide its letter dated 26.10.2002 terminated the sales agency agreement due to the failure on the part of the respondent to perform their obligations as stipulated in the GSA agreement. The settlement of the outstanding dues of the sale proceeds of the sold tickets by the respondent (ex-GSA) could not be amicably settled, though the parties did indeed try to settle the matter through their respective lawyers in goods gesture. Subsequently, the claimant became constrained to invoke the Arbitration Clause in the agreement to recover its legal and just outstanding payments from the respondent. The tribunal as stated earlier, after hearing both the parties and considering the materials on record was pleased to dispose of the said arbitration proceeding by the decision of the majority. It made an award on 08.06.2006, of BDT 31,27,50,556/- in favour of the petitioner and dismissed the counter claim of the respondent having found no justification in respect of the counter claim.

13.       Upon hearing the learned Counsels of both the parties, the High Court Division was pleased to set aside the award dated 08.06.2006 made by the majority decision of the Arbitration Tribunal on the ground that the award is opposed to public policy.

14.       Being aggrieved by the judgment and order of the High Court Division the petitioner has filed this petition for leave to appeal.

15.       Heard Mr. Nazmul Huda, the learned Counsel (Mrs. Sigma Huda, Advocate with him) appearing for the petitioner and Mr. Ajmalul Hossain, the learned Counsel appearing for the respondent and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

16.       The learned Counsel submits that that the arbitration application is not maintainable in view of the fact that the present respondent did not deposit the award money in compliance of the provision as laid down in Section 42 of Arbitration Act deposit the award money and security which is precondition of filling an application challenging the award. Sub-section (2) of the said Section 43 of the Act has provided for the deposit of the award money in the Court or otherwise secured pending the determination of the application. The rightful dues as recognized by the Arbitration Tribunal be secured by depositing the same into court. As such the impugned judgment and order is liable to be set aside for non-compliance of the aforesaid section.

17.       The learned Counsel further submits that all the members of the tribunal were in constant touch with each other and that now to claim undue haste of the majority members of the tribunal or that the arbitrator of the respondent was never consulted or given an opportunity to see the award before signing is a fabrication hard to believe. As such the impugned judgment is liable to be set aside.

18.      Sub-section (2) of Section 43 of the Arbitration Act, 2001 runs as under:-
         "(2) Where an application is made to set aside an award, the court or the (High Court Division, as the case may be, may order that any money payable by the award shall be deposited in the Court or the High Court Division, as the case may be, or otherwise secured pending the determination of the application."

19.       From a close reading of the above sub-section it appears that it is the discretion of the High Court Division or the Court to order that any money payable shall be deposited in the Court. It is neither mandatory nor obligatory on the part of the High Court Division to pass such an order directing the deposit.

20.       It further appears that no such objection was raised by the present petitioner before the High Court Division about such deposit.

21.       In such view of the matter we find no substance in this submission that the arbitration application was not maintainable for want of deposit.

22.       The High Court Division while considering the conduct of the arbitrators and on the question of deliberation held as under:-

"Despite having made a request in writing, the 3rd arbitrator was not given any scope or opportunity to deliberate on the issues with Chairman and the other member of the Tribunal before the award was finalized and signed. On the contrary, he was merely required to append his signature on a one hundred page typed award which had already been signed by the Chairman and the 2nd arbitrator. Even if there was any deliberation before the award was made and signed, it took place between the Chairman and the 2nd arbitrator, evidently, without the participation and input of the 3rd arbitrator. In such premises, the award in question cannot be termed as an award by the majority. Consequently, it cannot be said that the tribunal had either acted fairly or in accordance with the terms of the agreement between the parties, as it was required to do under the act."'

23. It further appears that the High Court Division rightly considered lack of deliberations between the arbitrators in this case and correctly followed the principle laid down in the case of Nand Ram Vs Fakir Chand reported in ILR 7(1885) All 523 which runs as under:-

"What the parties to a reference to arbitration intended is that the persons to whom the reference is made should meet and discuss together all the matters referred, and that the award should be the result of their united deliberations. This conference and deliberation in the presence of all the arbitrators is the very essence of the arbitration, and the sole reason why the award is made binding."

24. It further appears that the High Court Division rightly considered the "public policy" in the matter and correctly appreciated the principle laid down in Hindustan Petroleum Corporation Limited Vs. Environmental Engineers Ltd. and another reported in (2001)2 Comp 79 (Bom) where it was held as under:-

"As the expression is incapable of precise definition, those challenges would be available, if the Court finds the award obnoxious to its sense of justice, based on settled principles of law, whether as to the conduct of the arbitrator or arbitral proceedings or the award itself, Justice is the beginning and the end. Law must ultimately reach out to justice. Public policy contemplates that Courts must reflect it."

25.       In the present case the arbitral tribunal was composed of three arbitrators and it was incumbent upon the arbitrators to make it manifest that there was discussion between the arbitrators before the award was made but from the plain reading of the proceedings it appears that one of the arbitrators was excluded totally from the process of deliberation before the award was made.

26.       We further hold that the High Court Division was right in holding that the 3rd arbitrator was neither consulted nor given an opportunity by the Chairman to deliberate and express his views on the issues before making and signing the award in question.

27.       In view of the discussions as above, we find nothing to interfere with the judgment of the High Court Division in setting aside the award.

Accordingly the leave petition is dismissed.

Ed.

Sayed Ahmed Majumder Vs. Samsul Hoque and others

Case No: Civil Petition for Leave to Appeal No. 954 of 2005.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Abdul Wadud Bhuiyan,,

Citation: V ADC (2008) 673

Case Year: 2008

Appellant: Sayed Ahmed Majumder

Respondent: Samsul Hoque and others

Subject: Property Law,

Delivery Date: 2006-07-10

Sayed Ahmed Majumder Vs. Samsul Hoque and others
V ADC (2008) 673

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Md.Tafazzul Islam

Sayed Ahmed Majumder..........................Petitioner
Vs.
Samsul Hoque and others........................Respondents

Judgment
July 10, 2006.

Specific Relief Act, 1877
Section 42

Partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid Ali and Tukku Mia became owners of the same each getting 8 annas share. … (2)

It is a settled law that possession of one co-sharer is the possession of other co-sharers and the plaintiffs, being admittedly co-sharers in the suit jote, the submission of the learned Advocate of the Petitioner regarding the maintainability of the suit has no basis. …. (5)

Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Nurul Islam Bhuiya, Advocate-on-Record-For the Petitioner.
Md. Nawab Ali, Advocate-on-Record-For Respondent Nos. 1-4.
Not represented- Respondent Nos. 5-14.

Civil Petition for Leave to Appeal No. 954 of 2005.
(From the judgment and order dated 28th March, 2005 passed by the High Court Division in Civil Revision No. 3645 of 2002).

Judgment

Md. Tafazzul Islam J.- This petition for leave to appeal arises out of the judgment dated 28.3.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 3645 of 2002 discharging the Rule obtained against the judgment and decree dated 28.5.2002 passed by the learned Additional District Judge,4th Court Comilla in Title Appeal No.130 of 1998 allowing the appeal and thereby reversing those of dated 6.04.98 passed by the learned Senior Assistant Judge, Chowddagram, Comilla in Partition Suit No.135 of 1995 decreeing the suit.

2. The respondent Nos.1-4 instituted the above partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid Ali and Tukku Mia became owners of the same each getting 8 annas share; Hamid Ali died leaving behind one son Nanna Mia and one daughter Wazedun Nessa, Nanna Mia died leaving behind one son Syed Ahmed, the defendant No.1, and one daughter, the defendant No.2; Wazedun Nessa died leaving behind two sons defendant No.3 and 4 and one daughter the defendant No.5: Tukku Mia while owning and possessing remaining 8 annas died leaving behind one son Shamsul Huq, the plaintiff No.1, and one daughter, the plaintiff No.2; the plaintiff Nos.3 and 4 are the sons of plaintiff No.1; the defendant No.3 got .30 decimals of land out of Plot No.489 from the defendant No.1 by sale deed dated 23.1.81 and the defendant No.4 also got 30 decimals of land out of the above plot No. 489 from the defendant No. 1 by sale deed dated 23.1.81; S.A Khatian was prepared in the names of Nanna Mia and the plaintiff No. 1; the plaintiffs got right title and possession in 1.69 acre of land; the suit land is possessed by the plaintiffs as well as the defendants in ejmali and since the defendants did not give due shares to the plaintiffs amicably inspite of request they were constrained to file the instant suit.

3. The defendant No.1 contested the suit by filling written statement stating, inter alia, that the suit land originally belonged to Fosi Gazi and after his death his only son Hamid Ali became the owner of the suit land; the landlord filed Rent Suit No. 6769 of 1933 for realization of arrear rent and after obtaining decree the landlord filed Rent Execution Case No.124/1936 and Hamid Ali, the judgment debtor, paid the decretal dues with cost; Tukku Mia was not son of Fosi Gazi; the plaintiff Nos.1 and 2 never possessed the suit land; the S. A. record was wrongly prepared in the name of plaintiff No.1 along with the defendant No.1; while owning and possessing the suit land the defendant No.1 sold 20 decimals of land to the defendant Nos.6 and 7 and also sold 60 decimals in favour of defendant Nos.3 and 4 and the defendant Nos. 1-5 are in possession of the remaining 89 decimals of land and as such the suit is liable to be dismissed in limini. The trial court decreed the suit in part. On appeal by the plaintiffs the learned Additional District Judge, 4th Court, Comilla, after hearing, allowed the appeal. The defendant No.1 then moved the High Court Division and obtained Rule in Civil Revision No. 3645 of 2002 and the High Court Division, after hearing, discharged the Rule.

4. The learned counsel appearing for the defendant No.1 petitioner submit that the trial court on consideration of the oral and documentary evidence arrived at the finding that exhibit 'Kha" shows that the landlord obtained a decree in respect of the suit land for non-payment of rent and Hamid Ali, by depositing the decretal amount with costs in the execution case, saved the suit land from auction sale and then he remained in possession of the same and rent receipts, Exts. Ga to G-8' further show that before 1350 B.S. Hamid Ali alone had been paying rent for the suit land and then Nanna Mia and then the defendant No. 1 had been paying rent for the suit land and there is nothing on record to show that before purchasing some land, from the defendant No.1 in 1381 B.S. the plaintiffs ever paid rent; that Tukku Mia had been living at the house of his father-in-law till his death at the age of 60-65 years and after his death his son, plaintiff No.1, also lived there; further till 1981 i.e. for about 60 years, Tukku Mia or his successors had no relationship with the suit land and the plaintiffs also did not claim that they were in possession of the suit land through Hamid Ali or Nanna Mia or defendant No.1; since 1922 Hamid Ali owned and possessed the suit land openly, continuously and uninterruptedly denying the title of others and completely ousting Tukku Mia and after Hamid Ali his son Nanna Mia was in possession of the suit land in the same way. The learned counsel further submits that the above finding having not been reversed and the defendants having proved that for arrear of rent a rent suit was filed by the landlord in respect of suit land which was decreed and in Rent Execution Case No. 24 of 1936 Hamid Ali, by paying the decretal dues with costs saved the suit land and had been in exclusive possession of the suit land and the witnesses of the plaintiffs in cross-examination also stated that the defendant No. 1 was in possession of the suit land and was also able to establish complete ouster of the plaintiffs from the suit land and hence the suit for partition, without declaration of title and recovery of khas possession, was barred by Section 42 of the Specific Relief Act.

5. As it appears the High Court Division discharged the Rule holding that the defendant No.1 in his written statement admitted the transfer of 60 decimal of land by Ext.2 and 2(ka) in favour of plaintiff Nos.3 and 4 and so the only point which remained to be decided was whether Tukku Miah was the son of Fosi Gazi and the trial court on consideration of the evidence on record came to a clear finding that Tukku Miah was the son of Fosi Gazi and the said finding has been upheld by 1 the appellate court and the learned Advocate for the petitioner appearing before the High Court Division could not point out any misreading of evidence or non consideration of the materials on record; Tukku Miah having been found to be the son of Fosi Gazi by both the courts below and admittedly the plaintiff nos.1 and 2 being the heirs of Tukku Miah, the appellate court did not commit any error in decreeing the suit specially when admittedly the defendant No.1 himself has transferred 60 decimals of land in favour of the plaintiff Nos. 3 and 4 by Ext.2 and 2 (ka) and the defendant No. 1 also admitted the possession of the plaintiffs in the said land and the plaintiffs are the heirs of Tukku Miah and Tukku Miah is son of Fosi Gazi and so the plaintiffs are co-sharers of the jote; the evidence adduced by the defendant. 1 does not prove complete ouster of the plaintiffs from the suit land or adverse possession of the defendant No.1 in the suit land as against the plaintiffs, it is a settled law that possession of one co-sharer is the possession of other co-sharers and the plaintiffs, being admittedly co-sharers in the suit jote, the submission of the learned Advocate of the petitioner regarding the maintainability of the suit has no basis.

6. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record arrived at a correct decision. The learned counsel could not point at any error or infirmity in the decision of the High Court Division so as to call for any interference.
The petition is dismissed.
Ed.

Sayed Ali Vs. Sree Gopal Chandra Das and others, 32 DLR (AD) (1980) 212

Case No: Civil Appeal No. 119 of 1979

Judge: Kemaluddin Hossain,

Court: Appellate Division ,,

Advocate: Dr. Rafiqur Rahman,Mr. Abdus Salam Khan,,

Citation: 32 DLR (AD) (1980) 212

Case Year: 1980

Appellant: Sayed Ali

Respondent: Sree Gopal Chandra Das and others

Subject: Procedural Law,

Delivery Date: 1980-3-11

Supreme Court
Appellate Division
(Civil)

Present:
Kemaluddin Hossain, J
CJ, Ruhul Islam, J
Badrul Haider Chowdhury, J
Shahabuddin Ahmed, J

Sayed Ali
.............................Appellant.
Vs.
Sree Gopal Chandra Das and others
……………….....Respondents

Judgment
March 11, 1980.

The Code of Civil Procedure, 1908 (Act V of 1908)
Section 14
The Small Causes Act, 1887 (IX of 1887)
No separate execution proceeding is required to enforce the order made under section 144 of the Code of Civil Procedure. The power conferred to the Court of first instance under section 144 of the Code is available to a Court of Small Causes……………(11)

Cases Referred to-
Gopal Pario vs. Searna Bewa 34 C.W.N. 707: Swamirao vs. Valentine, AIR 1920 Bom. 12; Balaram Reddi vs. Govinda Reddi A.I.R 1947 Mad. 54; Allahabad Theatres vs. Ram Sajiwan. A.I.R. 1949 All 730.

Lawyers Involved:
Abdus Salam, Senior Advocate, Mohfuzur Rahman, Advocate, instructed by B.C. Panday, Advocate-on-Record—For the Appellant.
Rafiqur Rahman Senior Advocate, instructed by Zinmur Ahmed,
Advocate-on-Record—For the Respondent.

Civil Appeal No. 119 of 1979.
(From the Judgment & order dated 28.7.77 passed by the High Court in Civil Revision Case No. 379 of 1977).

JUDGMENT

Kemaluddin Hossain, CJ.

In this appeal facts are not complicated nor they require to be recounted in detail, but a short but important question of law in involved, in that, whether a Court of Small Causes can exercise powers under section 144 of the Code of Civil Procedure. Facts are that the plaintiff respondents got an ex-parte decree for ejectment on 27-2-76 against the tenant defendant, and in execution of the decree got delivery of possession through Court on 17-3-76. The defendant-appellant filed an application under Order 9, rule 13 of the Code of Civil Procedure to set aside the ex-parte decree which was allowed and then he filed an application under section 144 of the Code for restoration of possession to the suit premises,, but it was disallowed on the ground that the Court of Small Causes was not authorised in law to exercise jurisdiction under section 144 of the Code. On revision the learned Single Judge held that the application under section 144 was misconceived and incompetent and so dismissed the revision case.

2. The principal question is whether section 144 of the Code is available to a Court of Small Causes. To appreciate some provisions of the Small Cause Courts Act and Code of Civil Procedure are to be mentioned. First, to turn to some of the provisions of the Small Cause Courts Act. We find that section 33 of the Act says that Small Causes Court and Civil Court are distinct and should be always treated as different Courts; section 17 provides that the procedure prescribed in the Code of Civil Procedure, save it has been excepted by that Code and this Act, the Small Causes Court shall follow in all suits cognizable by it, the procedure prescribed in the Code of Civil Procedure, and section 16 says that suits cognizable by a Court of Small Causes shall not be tried by any other Court. To revert back to section 17 again it appears that it contemplates that final order passed by a Small Causes Court will be a decree.

3. Keeping these provisions of the Small Cause Courts Act in view, if we refer to the Code of Civil Procedure, we find, section 7 which has been impliedly referred to by Small Cause Courts Act, says that what has been provided in clauses (a) and (b) to that section shall not be available to a Court of Small Causes and it is to be remembered that section 144 of the Code is not one of the excepted provisions mentioned therein.

4. A combined reading of the aforesaid provisions of the two enactments clearly indicates that the trial provisions of the Civil Procedure Code are available to a Court of Small Causes except to the extent the Small Cause Courts Act or Code of Civil Procedure excludes specifically the provisions of the Code from its application to a proceeding before a Court of Small Causes. It, therefore, follows that the trial procedure prescribed in the Code shall be followed in all suits cognizable by a Court of Small Causes except to the extent excluded. Inevitable conclusion, therefore, is that the provisions of section 144 of the Code which has not been excluded is available to the Court of Small Causes and the power is to be exercised when language of the section is attracted to the facts of the case before it.

5. On turning to section 144 of the Code, we find that it says that the Court of the first instance shall, on an application made to it by a party entitled to the benefit by way of restitution or otherwise consequent upon the variation or reversal of a decree, cause such restitution as to place the parties in a position which they would have occupied but for the decree that has been varied or reversed In making restitution the Court has been conferred very wide powers including orders for refund of costs, payment of interest, damages, compensation and mesne profits consequent on such variation or reversal. It is also to be remembered that the benefit under this section cannot be had by suit since sub-section (2) clearly bars it.

6. It is now to be seen, whether there is anything in section 144 of the Code which bars a Court of Small Causes from exercising the powers conferred under the section. One such view is that the variation and reversal of the decree must be by a superior Court, and so if the decree is varied or reversed by the trial Court, which is mentioned in the section as the Court of the first instance, then this power is not available. This view gets support from the case of Gopal Pario vs. Searna Bewa 34 C.W.N. 707 of the Calcutta High Court. As against this view, there are decisions of other High Courts of the subcontinent which have taken a contrary view. We may mention the decisions of three High Courts namely, that of Bombay, Madras and Allahabad.

7. The Bombay High Court in Swamirao Vs. Valentine, A.I.R. 1920 Bombay 12, has held that where in execution of an ex-parte decree property is recovered from the judgment-debtor, the latter is entitled to restitution of the property on the ex parte decree being set aside.

8. In the Madras decision, Balaram Reddi Vs. Govinda Reddi A.I.R—1947 Mad. 54, It has been held that a judgment-debtor is entitled to restitution of property sold in execution of ex parte decree on its reversal under certain conditions laid down in the judgment.

9. The decision of the Allahabad High Court in the case of Allahabad Theatres vs. Ram Sajiwan A.I.R. 1949 All 736, is that words varied or reversed would cover a case in which a decree has been varied or reversed by the same Court. Where an exparte decree is passed and possession delivered to the plaintiff in pursuance of the decree and the decree is set aside and the defendant applies for restitution under section 144 of the Code, he can get the relief under the said section.

10. It therefore, appears the preponderant view is that the variation and reversal does not convey the idea of superior Court making such order, and we think that is in accord with the language of the Code where no such qualifying word has been used. We do not find any cogent reason to restrict the language and limit of its scope and operation.

11. Another contention raised by Mr. Rafiqur Rahman in support of exclusion of jurisdiction under this section of a Court of Small Causes is that under section 2 of the Code, an order passed under section 144 of the Code is a decree which is appealable and whereas the decree passed by the Small Causes Court is not appealable, the order passed under the section will not acquire the character of a decree: The argument can be answered, if we look at the character of the proceeding before a Court of Small Causes. Reference has already been made to the provisions of the Small Cause Courts Act to show that a proceeding before the Small Causes Court is known as a suit and it ends with a decree. Therefore, we do not find any bar in treating the order passed by the Court of Small Causes by referring to section 2 of the Code as a decree. The question of appeal is a separate question. The right of appeal is to be specifically conferred by law. No doubt the Civil Procedure Code provides that when there is a decree, an appeal lie to the next higher Court but then the right of appeal has been expressly taken away from a decree passed by a Court of Small Causes. So, the order passed by a Court of Small Causes no doubt will be a decree but will not be appealable. Bar to appeal cannot be an impediment of treating an order made under section 144 of the Code as a decree or its application to a Court of Small Causes. It is to be observed that no separate execution proceeding is required to enforce the order made under section 144 of the Code. On a consideration of the various provisions discussed above and the contention of the learned Counsel for the respondents, we are of the opinion that the power conferred to the Court of first instance under section 144 of the Code is available to a Court of Small Causes and in that view of the matter, we set aside the orders of the Courts below and allow the appeal without any order as to costs and remit the case to the Court of first instance to dispose of the matter in accordance with law.

Ed.

Sayeda Mohsina Vs. Chairman, 1st Court of Settlement & another, 3 LNJ (2014) 719

Judge: Mahmudul Hoque,

Court: High Court Division,,

Advocate: Mr. Z.I.Khan Panna,Mr. Mozno Mollah ,Mr. Md. Shahidul Islam,,

Citation: 3 LNJ (2014) 719

Case Year: 2014

Appellant: Sayeda Mohsina

Respondent: Chairman, 1st Court of Settlement & another

Subject: Abandoned Property,

Delivery Date: 2014-07-10

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Syed Refaat Ahmed, J
And
Mahmudul Hoque, J.

Judgment on
10.07.2014

Sayeda Mohsina
. . .Petitioner
-Versus-
Chairman, First Court of Settlement, Bangladesh Abandoned Buildings, Dhaka & another.
. . .Respondents

Bangladesh Abandoned Property (Control, Management and Disposal) Order (PO 16 of 1972)
Article 2
The Government does not claim that the petitioner and her predecessors are nationals of any country other than Bangladesh or that they were not in possession of the case property, the inclusion of the case property in the “Kha” list which in no way can be termed as abandoned property.
The respondent-Government also does not claim that the petitioner, her vendors and the original lessee Md. Mahmood are nationals of any country other than Bangladesh which at any time after 25.3.1971 was at war with Bangladesh or that they were not in possession of the case property. Rather, given the facts and circumstances, the very fact of inclusion of the property in the “Kha”list itself establishes to this Court that the petitioner has been in possession all along and as such the case property in no way answers to the description of abandoned property as defined in Article 2 of P.O. 16 of 1972 and hence the inclusion of the case property in the “Kha” list is considered and found to be illegal and without jurisdiction. . . .(12)

Abandoned Building (Supplementary Provisions) Ordinance (LIV of 1985)
Section 5(1) (b)
Bangladesh Abandoned Property (Control, Management and Disposal) Order (PO 16 of 1972)
Article 7
No notice having been served upon the occupier either under Section 5(1)(b) of the Ordinance or under Article 7 of P.O. 16 of 1972 , the listing of the case property in the “Kha” list of the abandoned buildings is, therefore, clearly found to be done without lawful authority. . . . (14)

Abandoned Building (Supplementary Provisions) Ordinance (LIV of 1985)
Section 10 (2)
The Court of Settlement without determining the question of facts and law involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason this Court arrives at the conclusion that the Court of Settlement’s Judgment and Order dated 19.11.2001 is indeed a perverse one being contrary to the facts, circumstances and evidence on record and as such this Court is inclined to interfere with the impugned Judgment of the Court of Settlement....(21)

Bangladesh & others Vs. Md. Jalil and others, 48 DLR (AD) 10; Secretary, Ministry of Works Vs. Rowshan Ara Begum, 57 DLR (AD) 167; Bangladesh Vs. A. T. M. Mannan and others, 1 BLC (AD) 8 and Syeda Chand Sultana and others Vs. Bangladesh, 1 MLR (HCD) 310, which was affirmed by the Appellate Division and reported in 51 DLR (AD) 24 ref.

Mr. Z.I.Khan Panna with
Mr. Mozno Mollah and
Mr.Munir Tanveer-E- Mahbub

…For the Petitioner.

Mr. Md. Shahidul Islam, D.A.G. with
Mr. Sukumar Biswas, A.A.G.

…. For the Respondents

Writ Petition No. 684 of 2002

JUDGMENT

Mahmudul Hoque, J:

This Rule Nisi was issued under Article 102 of the Constitution of the People’s Republic of Bangladesh at the instance of the petitioner calling upon the respondents to show cause as to why the impugned Judgment and Order dated 19.11.2001 ( Annexure-F) shall not be declared to have been passed without any jurisdiction and is of no legal effect and why the holding No. 13/4, Block-D, Mohammadpur, Dhaka should not be released from the “Kha” list of abandoned Building published on 23.9.1986 or such other or further order or orders passed as to this Court may seem fit and proper.

Facts leading to disposal of this Rule Nisi, in short, are that the property in question was leased out to one Md. Mahmood by the then Government of East Pakistan vide lease deed No. 2892 dated 11.07.1960 for 99 years. While the said original lessee was in possession of the property in question he died leaving behind his wife Salma Begum, 3 sons Shakil, Zahed Mahmood, Arshad Mahmood and daughter Gazla Mahmood. Said Salma Mahmood filed Act VIII case being No. 451 of 1974 in the court of District Judge, Dhaka and in that case she was appointed guardian of the minors and thereafter she obtained permission from the said court to sell the case property vide permission case No. 546 of 1974. She paid all necessary charges to the authority concerned and accordingly a clearance certificate dated 22.08.1974 was issued by the Administrative Officer certifying payment of all dues by the lessee Md. Mahmood.

Thereafter, Salma Begum @ Salma Mahmood, as guardian duly appointed by the court, sold the case property to the petitioner by a registered deed of sale being No. 167 dated 03.01.1975 and handed over possession thereof. Since then the petitioner has been possessing the case property and living therein with her family and mutated her name in the Khatian and paid rents to the Government. The petitioner applied to the Assistant Commissioner, Settlement, for mutation of her name in the record of the housing estate and accordingly, Assistant Commissioner, Settlement issued a letter No. 1839/C-S dated 25.03.1985 asking the petitioner to submit necessary papers and documents. The petitioner submitted all necessary documents as asked for. Thereafter, a survey was held by a survey team headed by Assistant Engineer Mr. Salimullah Bhuiyan on 17.07.1983 wherein the petitioner was found in possession. In the remark column of the survey report dated 13.01.1984, it was stated that “Mrs. Salma Begum @ Salma Mahmood wife of late Md. Mahmood the successor of the original lessee sold out the property to the present occupier Mrs. Sayeda Mohsina and the name has not yet been mutated in respect of the present occupant. Since Mrs. Salma Begum the successors of original lessee is residing in V-A/7 Razia Sultana Road, Block-D, Mohammadpur, Dhaka, the property may not be treated as an abandoned property.”

In spite of the findings in the survey report, the case property of the petitioner being included in the list of abandoned buildings, the petitioner filed an application under Section 7(1) of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (“Ordinance”) before the Court of Settlement. The said application was registered as Case No. 32 of 2000. The Government contested the case, however, without filing any written statement.

The Petitioner contends that the Court of Settlement heard the case and upon hearing dismissed the same by its Judgment and Order dated 19.11.2001 but without taking into consideration the papers and documents submitted before it to substantiate the claim of the petitioner. Against this backdrop the petitioner moved this Court by filing this application under Article 102 of the constitution challenging the Judgment and Order passed by the Court of Settlement and obtained the present Rule and Order of stay.
The Respondent No. 2, Government of Bangladesh contested the Rule by filing an Affidavit-in-Opposition denying all the material allegations made in the petition contending inter alia that the original lessee of the case property Md. Mahmood during the War of Liberation of 1971 left this country leaving the case property uncared for and thus he ceased to occupy, supervise and manage the case property in person at the relevant time i.e. on 28.02.1972 being the date promulgation of The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (“P.O. 16 of 1972”). Consequently, the Government declared the case property as an abandoned property under the provision of Article 2(1) of the P. O. 16 of 1972. It is contended that the alleged sale by Salma Begum to the petitioner Sayeda Mohsina by registered deed of sale dated 03.01.1975 is accordingly, null and void under the provisions of Article 6 of the P.O. 16 of 1972. It is also asserted that Md. Mahmood’s whereabouts were not known to the concerned authority and the Government, consequentially, after completing all formalities published the Gazette under the provision of Section 5(1) of the Ordinance which is conclusive evidence of fact of the abandoned status of the case property under Section 5(2) of the Ordinance. It is also asserted that the petitioner has failed to prove her case by adducing evidence to the effect that the original owner Md. Mahmood was present in Bangladesh and he occupied, managed or supervised the disputed building when P.O. 16 of 1972 came into force. Hence, it is submitted that the very listing of the case property in the “Kha” list of the abandoned buildings is lawful and conclusive proof of facts and that the Court of Settlement passed the Judgment and Order rightly and considering the papers and documents filed by the claimant.

Mr. Z.I. Khan Panna with Mr Mozno Mollah and Munir Tanveer -E- Mahbub, the learned Advocates for the petitioner supporting the Rule submit that in the present case the original lessee Md. Mahmood was in possession of the case property till his death in this country as a national of Bangladesh. After the death of the said Md. Mahmood his wife, 3 sons and only daughter inherited the property as his legal heirs. They also were in possession, control and management of the property. The aforementioned sons and daughter of Late Md. Mahmood being minors his wife Salma Begum @Salma Mahmood got herself appointed as guardian of her minor children through court and subsequently obtained permission for sale of the property for the benefit of the minors vide Permission Case No. 546 of 1974. Thereafter, she herself and on behalf of her minor children sold the case property to the petitioner by a registered deed of sale being No. 167 dated 03.01.1975 as citizen of Bangladesh and handed over possession to the latter. Since then the petitioner has been possessing the case property and living thereon with her family members. It is also submitted that the said Md. Mahmood never left this country at any time before and after the promulgation of P.O. 16 of 1972 and he was in possession of the property till his death as a national of Bangladesh.

Mr. Khan further submits that service of notice under Section 5(1)(b) of the Ordinance upon the owner or occupier of the case property is a condition precedent as set forth in the Ordinance before enlistment of the property in the “Kha” list. It is contended that in the instant case no such notice was issued or served upon the petitioner or her vendors either under Article 7 of P.O. 16 of 1972 or under Section 5(1)(b) of the Ordinance before the listing of the property in the ‘Kha’ list of the abandoned buildings and as such the enlistment of the property in the list of the abandoned buildings is palpably illegal and without jurisdiction. It is also argued that since the original lessee Md. Mahmood was a citizen of Bangladesh and was in possession, control and supervision of the case property at all material times and died in Bangladesh as a Bangladeshi national the property in question cannot be under the law treated as an abandoned property. He further submits that the Court of Settlement in its Judgment totally ignored the fact of the granting of a guardianship certificate by a competent court and permission for selling the property on behalf of the minor children and as such the Judgment and Order of the Court of Settlement is based on non-consideration of material evidence adduced by the petitioner claimant before it. In support of his submissions Mr. Khan has referred to the cases of Bangladesh -vs- Helaluddin Ahmed reported in 4 MLR (AD) 40, Bangladesh -vs- Md. Shahjahan reported in 2 ADC (2005) 411, Bangladesh -vs- Bibi Morium reported in 54 DLR (AD) 100, Bangladesh -vs- Nasima Khatun reported in 57 DLR (AD) 97 and Syeda Chand Saltana & others -vs- Bangladesh reported in 1 MLR (HCD) 310.

Mr. Shahidul Islam, the learned Deputy Attorney General with Mr. Sukumar Biswas, the learned Assistant Attorney General appearing for the Respondent No. 2, Government in opposing the Rule submit that the person who claims the case property is not an abandoned property is to prove that the original lessee, in the instant case Md. Mahmood, occupied, managed or supervised the case property on the relevant date, i.e. on 28.02.1972. The petitioner having failed to prove the same, the inclusion of the building in the ‘Kha’ list is submitted to be proof enough of it being an abandoned property and the Government has in the circumstances nothing to prove or deny. Mr. Islam further submits that in the present case the petitioner could not show that Md. Mahmood was present in Bangladesh on material dates or that he occupied, managed or supervised the case property when P.O. 16 of 1972 came into operation and as such the listing of the property in the ‘Kha’ list as abandoned property is lawful and in turn constitutes conclusive proof of the fact of abandonment of the property. It is also argued that under Writ Jurisdiction this Court cannot sit over the Judgment of the Court of Settlement as a court of appeal unless it could be shown that the Court of Settlement had acted without jurisdiction or made any finding upon no evidence or without considering any material evidence or that it had acted mala fide or in violation of any principles of natural justice. In support of his submissions he referred to the cases of Bangladesh & others –vs- Md. Jalil and others reported in 48 DLR (AD) 10, Secretary, Ministry of Works -vs- Rowshan Ara Begum reported in 57 DLR (AD) 167 and Bangladesh – vs- A.T.M. Mannan and others reported in 1 BLC (AD) 8.
Heard the learned Advocates for the parties, perused the application, Affidavit-in-Opposition and annexures annexed thereto as well as the Records called for by this Court from the Court of Settlement.

The petitioner to substantiate her claim has annexed to the Writ Petition all the relevant documents e.g. allotment order dated 16.1.1960 (Annexure-A), Original lease deed dated 9.2.1960 (Annexure-A1), Certified copies of two applications made in Act VIII Case No. 451 of 1974 and in the Permission Case No. 456 of 1974 ( Annexure-B and B1) and the orders passed in the aforesaid cases appointing the petitioner guardian of the minors and granting permission to sell the property in question. Clearance Certificate dated 22.8.1974 issued by the Administrative Officer, Mohammadpur and Mirpur Housing Estate (Annexure-B2), deed of sale No. 167 dated 28.12.1974 executed by Salma Begum in favour of the petitioner (Annexure-C), Rent receipts showing payment of rent (Annexure- C series), letter dated 25.3.1985 written by the Assistant Commissioner, Settlement asking the petitioner to submit some documents for the purpose of effecting mutation in her name (Annexure-D), inquiry report dated 9.10.1994 submitted by the Administrative Officer, Mohammadpur Housing Estate confirming the possession of the petitioner in the case property on the basis of purchase (Annexure-D1), and House to House survey report dated 13.1.1984 finding possession of the petitioner in the property (Annexure-E). All these papers and documents prove that the petitioner has been possessing the case property since her purchase and also the aforesaid documents, particularly the order of the court appointing Salma Begum as guardian of the minors and permitting her to sell the property show that the predecessor-in-interest of the petitioner Md. Mahmood and his heirs as well as the present petitioner are all nationals of Bangladesh and they have always been in possession of the case property. There is nothing on record to suggest that at any point of time did the petitioner and her predecessors-in-interest cease to occupy, supervise and manage the case property in person.

The respondent-Government also does not claim that the petitioner, her vendors and the original lessee Md. Mahmood are nationals of any country other than Bangladesh which at any time after 25.3.1971 was at war with Bangladesh or that they were not in possession of the case property. Rather, given the facts and circumstances, the very fact of inclusion of the property in the “Kha”list itself establishes to this Court that the petitioner has been in possession all along and as such the case property in no way answers to the description of abandoned property as defined in Article 2 of P.O. 16 of 1972 and hence the inclusion of the case property in the “Kha” list is considered and found to be illegal and without jurisdiction.

It is contended further by the petitioner that no notice as contemplated under Section 5(1)(b) of the Ordinance was served upon the petitioner at any time before listing the property as an abandoned one. Provisions in Section 5(1)(b) of the Ordinance may be looked into which run thus:-

“Section 5(i) The Government shall, after the commencement of the Ordinance and before the 31^st day of December, 1988, publish, from time to time, in the Official Gazette…” (b) Lists of buildings in respect of which notices for surrendering or taking possession as abandoned property under the said Order have been issued.

It is noted that a survey was held in respect of the case property on 17.8.1983 wherein the petitioner was found in possession. In the remark column of the said report submitted on 13.1.1984 it has been clearly stated that Mrs. Salma Begum @ Salma Mahmud wife of Md. Mahmood the original lessee sold out the property to the present occupier Mrs. Sayeda Mohsina and it was also held that since Mrs. Salma Begum successor of original lessee was residing in V-A/7, Razia Sultana Road. Block –D, Mohammadpur , Dhaka the property may not be treated as an abandoned property. The said survey report clearly recorded the unbroken chain of continuous possession by the petitioner and her predecessors-in-interest of the case property. Admittedly the respondent-Government could not show and produce any paper evidencing the fact of service of any notice upon the petitioner or her predecessors-in-interest under Section 5(1)(b) of the Ordinance or under Article 7 of P.O. 16 of 1972. This indeed is a condition precedent before enlistment of the property in the “Kha”list of Abandoned Buildings. Article 7(3) of P.O. 16 of 1972 equally clearly requires the issuance of a notice seeking surrender of such property to the Deputy Commissioner or to show cause against such surrender. Relevant provisions of Article 7 read thus:-

7.(1).................................................
(2) Where any abandoned property is in possession of any person, such person shall, within seven days of the commencement of this Order, surrender such property to the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer.]
3) Where the person in possession of any abandoned property fails to surrender such property as he is required to do under clause (2), the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer] shall serve a notice on him in the prescribed manner requiring him to surrender possession of the property, within seven days of the service of the notice, to the person mentioned in the notice or to show cause against such surrender within the said period and if he fails to do so, the Deputy Commissioner or the Sub-divisional Magistrate [or the authorised officer] shall take possession of the property in such manner as may be prescribed.

The aforesaid provisions of Article 7 provide that before the listing of any property in the list of abandoned buildings as a ‘Kha’ list property notice as required by law has to be served upon the occupier of the property. It is not denied rather admitted by the Government that the petitioner is in possession of the case property and she was never disturbed or asked by any notice to surrender possession. Nor did the Government take any step to take over the possession of the same till publication of the Gazette notification on 23.9.1986. No notice having been served upon the occupier either under Section 5(1)(b) of the Ordinance or under Article 7 of P.O. 16 of 1972 , the listing of the case property in the “Kha” list of the abandoned buildings is, therefore, clearly found to be done without lawful authority.

Furthermore, from the papers available in the Records nothing is found to show that the petitioner was ever asked to surrender the possession by any notice. Rather the survey report submitted on 13.1.1984 by the survey team, in this Court’s view, itself substantiates the petitioner’s case of continuous possession of the case property peacefully at all material times.

Apart from this an inquiry was also held in respect of the case property regarding its possession and the Administrative Officer by a report dated 9.10.1994 clearly recorded the unbroken chain of continuous possession by the petitioner and her vendors . The contents of the said report are reproduced below –

গনপ্রজাতন্ত্রী বাংলাদেশ সরকার,
প্রশাসনিক কর্মকর্তার দপ্তর,
মোহাম্মদপুর হাউজিং এষ্টেট, ঢাকা ।
স্বারকঃ- মিস-২/৯৪/পাট-৩/১১২৮/প্রঃ কঃ তাং- ৯/১০/৯৪
প্রাপকঃ- সহকারী কমিশনার, সেটেলমেন্ট,
গৃহায়ন ও গনপূর্ত্ত মমএনালয়,
সেগুনবাগিচা, ঢাকা ।

বিষয়ঃ- মোহাম্মদপুরসহ ডি ব্লকের ১৩/৪ নং বাড়ীর তদমত প্রতিবেদন ।
সূত্রঃ- ৫৯০৪/১(১)/ক,সে তাং- ২৫/০৬/১৯৯৪ ইং ।
উল্লেখিত বিষয়ে ও সুত্রের প্রেক্ষিতে নিম্ম- স্বাক্ষরকারী জানাইতেছেন যে, মোহাম্মদপুরসহ “ডি” ব্লকের ১৩/৪ নং বাড়ীটির মূল লীজ গ্রহিতা জনাব মোঃ মাহমুদ পিতা মৃত- হাজী জুমরাতী । লীজ দলিল নং- ২৮৯২ তাং- ১১/০৭/৬০ ইং । মূল লীজ গ্রহিতার মৃত্যুর পর তাহার সএী জনাবা সালমা বেগম তাহার নাবালক/নাবালিকা ছেলে মেয়ে যথাত্রুমে (১) জাবেদ মাহমুদ (২) শাকিল মাহমুদ (৩) আরশাদ মাহমুদ (৪) গাজিলা মাহমুদ এর অভিভাবিকা নিযুত্তু হন । জেলা জজ- আদালতের নির্দেশ মোতাবেক । কেস নং- ৪৫১/৭৪। পরবর্তীতে জনাবা সালমা বেগম মাননীয় জেলা জজ, ঢাকা এর আদালতে বাড়ীটির বিত্রুয় অনুমতির জন্য আবেদন করেন যাহার কেস নং ৫৪৬/১৯৭৪ ইং মাধ্যমে আদালতের অনুমতি ত্রুমে তিনি বাড়ীটি জনাবা সৈয়দা মহসিনা, স্বামী জনাব সুফি ইউসুফ এর নিকট সাব-কবলা বিত্রুয় করেন । কবলা দলিল নং ১৬৭ তাং ০৩/০১/৭৫ ইং ।
বাড়ীটির খাতে সরকারী পাওনা কিসিতর টাকা সমুদয় পরিশোধ করা আছে ।
বর্তমানে উল্লেখিত বাড়ীটিতে ত্রেুতা মালিক জনাবা সৈয়দা মহসিনা ও তাহার ভাড়াটিয়াগন বসবাস করিতেছেন ।
অবগতির জন্য প্রেরন করা হইল ।

প্রশাসনিক কর্মকর্তা,
মোহাম্মদপুর হাউজিং এষ্টেট,
ঢাকা ।
আউয়াল/
তাং- ০৯/১০/৯৪ ইং ।

It is our finding that the Court of Settlement instead of considering all these papers and documents submitted by the claimant in its entirety most arbitrarily and totally ignoring the fact of appointment of guardian and permission to sell the property given by the court to Salma Begum arrived at a wholly different and unsubstantiated finding that ,

অত্র মোকদ্দমার ঘটনা এবং আইনগত অবসহানে এমনকি নথিসহ সাক্ষীর সাক্ষ্য ও কাগজাদি পর্য্যালোচনায় প্রার্থীনি উল্লেখিত সালমা বেগমের সহিতই মূল মালিক মোঃ মাহমুদের স্বামী-সএী সম্পর্ক ছিল এবং প্রার্থীনির মালিকানা সংত্রুামত Basic documents প্রমানিত হয় নাই । প্রার্থীনির বায়া সালমা বেগম বাংলাদেশ স্বাধীন হওয়ার পর এদেশে ছিলেন এবং এদেশের প্রতি আনুগত্য স্বীকার করিয়াছিলেন তদসম্পর্কীয় প্রার্থীনিপক্ষ উপযুত্তু কর্তৃপক্ষের দেওয়া নাগরিকত্ব সার্টিফিকেট, আনুগত্য প্রমানের সার্টিফিকেট, ভোটার লিষ্ট কিছুই দাখিল করিয়া প্রমান করেন নাই । বরং প্রার্থীনির বায়া কিংবা তাহার মালিকানার দলিলাদি প্রমানের জন্য যে সকল সাক্ষ্য প্রমান প্রদান করার প্রয়োজন ছিল তাহা উপসহাপন না করায় প্রতিপক্ষ সরকারের মোকদ্দমাটিই প্রমানিত হয় যেহেতু প্রার্থীনির নালিশী সম্পত্তিতে Basic title প্রমানিত হয় নাই । প্রার্থীনির ও তাহার পরিবার পরিজন স্বাধীনতা যুদ্ধের সময় হইতে নালিশী সম্পত্তি বিত্রুয় করা পর্যমত কিংবা এখন পর্যমত এদেশের নাগরিক তদবিষয়টি প্রমানিত হয় নাই । ”

No explanation has been forthcoming from the respondent-Government as to why such finding may not be struck down as being wholly arbitrary. On the basis of the above quoted finding the Court of Settlement dismissed the case observing that the petitioner has failed to prove her title in the property by producing papers and witnesses.

The said observation of the Court of Settlement in this Court’s view, is absolutely contrary to the facts and circumstances of the present case and documents annexed by the petitioner. The inquiry report and survey reports as above considered conclusively establish that the petitioner has been possessing the case property by purchase from the heirs of the original lessee Md. Mahmood. In the absence of any contrary evidence the aforesaid two reports reinforce the argument that the lessee Md. Mahmood was a citizen and resident of Bangladesh at the material times and that because of the perverse finding of the Court of Settlement this issue totally remained suppressed.

It is also noted that instead of deciding the question whether the listing of the property as an abandoned one was legally done , the Court of Settlement in fact virtually decided the title of the petitioner in the case property which is not its statutory mandate to do. It is also found that the lessee Md. Mahmood died in Bangladesh leaving his wife Salma Begum, 3 sons and only daughter as his heirs who sold the property to the petitioner by a deed of 1974 upon due compliance of legal formalities. Nothing has come out from the respondent- Government to establish to the contrary that the said Md. Mahmood or his heirs were indeed not nationals of Bangladesh. In the case of Syeda Chand Sultana and others Vs. Bangladesh reported in 1 MLR (HCD) 310, which was affirmed by the Appellate Division and reported in 51 DLR (AD) 24. it has been held that;

“Where the owners as Bangladeshi nationals having lawful title have been in possession of the property althrough and never having ceased to manage or supervise the same and not having left the country and when there was no proper service of notice upon the petitioners as required under Article 7 of the P.O. no. 16 of 1972, the inclusion of the said building in the “Kha list” of abandoned properties being violative of the fundamental rights as contained in article 42 of the Constitution is illegal, without jurisdiction and of no legal effect and as such the petitioners are entitled to invoke the writ jurisdiction for enforcement of fundamental rights.

In the present facts and circumstances, this Court finds itself wholly subscribing to that ratio decidendi in the Syeda Chand Sultana Case.

The Court of Settlement without determining the question of facts and law involved in this case unfortunately passed the Judgment without giving a judicial consideration of the whole dispute between the parties and decided the matter erroneously. By that reason this Court arrives at the conclusion that the Court of Settlement’s Judgment and Order dated 19.11.2001 is indeed a perverse one being contrary to the facts, circumstances and evidence on record and as such this Court is inclined to interfere with the impugned Judgment of the Court of Settlement.

Accordingly, this Court finds merit in this application and substance in the Rule Nisi issued.

In the result, the Rule is made absolute, however, without any order as to costs.

The impugned Judgment and Order dated 19.11.2001 (Annexure-F) passed by the First Court of Settlement, Dhaka in Settlement Case No. 32 of 2000 dismissing the case is hereby set aside and the respondent-Government is, hereby, directed to delete/withdraw and rescind the property in question from the “Kha” list published on 23.9. 1986 within 6(six) weeks from the date of receipt of this judgment.

Send down the Records received from the Court of Settlement, Segunbagicha, Dhaka alongwith a copy of this Judgment forthwith.

Ed.

Sayesta Bibi and others Vs. Juma Sha and others

Case No: Civil Appeal No. 132 of 1984.

Judge: M. H. Rahman,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Miah A. Gafur,,

Citation: 42 DLR (AD) (1990) 53

Case Year: 1990

Appellant: Sayesta Bibi and others

Respondent: Juma Sha and others

Subject: Property Law,

Delivery Date: 1989-06-21

Sayesta Bibi and others Vs. Juma Sha and others
42 DLR (AD) (1990) 53

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Sayesta Bibi and ors.......................................................Appellants
Vs
Juma Sha and ors.......................................................Respondents

Judgment
June 21, 1989.

The Partition Act, 1893 (IV of 1893)
Section 4

The suit property never lost its character of an undivided homestead because there had admittedly been no partition by metes and bounds by any previous arrangement. There is no time limit for filing an application under section 4 of the Partition Act. The defendant's claim of continuous possession since purchase would be of no consequence. Unless there is a partition by, ”mets and bounds” the right of application under section 4 of the Partition Act subsists.………………….(11)

When an applicant's prayer is allowed under section 4 of the Partition Act it involves a kind of forced sale for the stranger-purchaser. And hence the Court would in equity determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger-purchaser………………….(11)

Cases Referred to—
Md. Tazammul Hossain Vs. Purni Agarwalini 10 DLR 318; Md. Magdu Bhuiya Vs. Jabban Huq 11 DLR 355; Md. Habibullah Patwari Vs. Pran Ballav Bhakta & others 9 DLR 119; Sree Jugal Kishori Sarker Vs. Azizur Rahman & ors 40 DLR (AD) 150.

Lawyers involved:
Syed Ishtiaq Ahmed, Senior Advocate, Mozammel Huq Bhuiyan & Mrs. Rabeya Bhuiyan, Advocates with him, instructed by Md. Aftab Hossain, Advocate-on- Record. — For the Appellants.
Miah A. Gafur, Advocate-on-Record.—For the Respondent Nos. 1-3, 4 (a) to 4 (f), 5 (b), 6 (a) to 6 (g), 7 (c) to 7 (d), 8 (a) to 8 (d), 9 to 11, 12 (a) to 12 (d), 13 (a) to 13 (c), 14 and 15.
Exparte—Respondent Nos. 5 (a) & 16 to 23.

Civil Appeal No. 132 of 1984.
(From the Judgment and decree dated 3.5.84 passed by the High Court Division, Sylhet Bench, Sylhet in Second Appeal No. 1509 of 1968).

Judgment

M. H. Rahman J.-This appeal, at the instance of the heirs of defendant No. 1, is directed against the judgment of the High Court Division, Sylhet Bench passed in Second Appeal No. 1509 of 1968.

2. The plaintiff-respondents instituted Title suit No. 22 of 1962 in the Court of Munsif, First Court, Sadar, Sylhet for partition of the undivided family homestead in the suit and also prayed for purchasing the share of defendant No. 1, a stranger-purchaser of a portion of the suit homestead from some co-sharers of the plaintiffs. Their case, in brief, is that the two brothers Hadu Shah and Nadu Shah took lease of southern half of the disputed homestead from the landlords. Subsequently Nadu Shah atone took lease of the northern half. Hadu Shah got 1/4th and Nadu Shah got 1/4th share of the homestead. Hadu Shah died leaving two daughters Feroja and Hafiza and brother Nadu Shah. The plaintiffs, being the heirs of Nadu Shah, claimed 5/6th share of the suit property. There was no previous partition. As the plaintiffs' demand for an amicable partition was not conceded they filed the present suit for partition. Further case of the plaintiffs is that they were entitled to purchase the share of defendant No. 1, a stranger purchaser, under section 4 of the Partition Act and read with section 44 of the Transfer of Property Act.

3. Defendant No. 1, alone contested the suit, His case was that Bedu Shah was the original owner of the suit land. He died leaving two sons, Hadu and Nadu, and a daughter, Modina. Hadu Shah died leaving one son, Sadu Shah, two daughters Firoza and Hafiza, and a widow, Kutibibi. Kuti Bibi died leaving Firoza and Hafiza who sold their interest to Ambor and others. Modina died leaving one son Amjad, who leaving two sons Ambor and Amfor. Amfor and minor children of Ambor sold half of the homestead to defendant No. 1 by a kabala dated 15.2.87 and since then he was in continuous possession in the specific portion of the land he purchased. It was further contended that the plaintiffs' claim was excessive and section 4 of the Partition Act was not applicable in this case.

4. The suit was once decreed on contest but on appeal the matter was remanded to the trial Court. Thereafter the suit was again decreed by the trial Court. The trial Court found that defendant No. 1 was a stranger and he only acquired 4/5 share by his purchase. The plaintiffs were given 7/15th share of the suit homestead on partition and were allowed to purchase Defendant No. 1's share.

5. On appeal the learned Subordinate Judge affirmed the decree of the trial Court as to defendant No. 1's share. He observed: "The present suit land is no doubt homestead land but is not a dwelling house of an undivided family". He allowed the appeal in part by holding that defendant No. 1 was not a stranger and he was already in possession of a specific portion of the homestead and therefore he should also get a separate saham.

6. In second appeal the High Court Division restored the decree of the trial Court after affirming the finding of the trial Court that the plaintiffs and the co-sharers-defendants had their dwelling house in their suit property and they were entitled to purchase 4/15th share of defendant No. 1 by purchase from the co-sharer-defendants of the plaintiffs.

7. On behalf of appellants it contended that the High Court Division erred in law in not considering that the vendors of defendant No. 1 had been in possession of a specific portion of the homestead and that defendant No. 1 had also been residing there for a tong time since his purchase on 15.2.1957 and that he was no longer a stranger in the suit property. It is also urged that the plaintiffs can easily get a separate saham for their 7/15th share in the homestead land by maintaining the existing possession of co-sharers as far as possible causing least disturbance to other co-sharers in possession.

8. On the other hand, the respondents submit that the tower appellate Court's finding that defendant No. 1 was no longer a stranger is based on a misconception of both fact and law because the suit property was never previously partitioned by metes and bounds.

9. The High Court Division upheld the plaintiffs' contention and restored the decree of the trial Court after considering Md. Tazammul Hossain Vs. Purni Agarwalini 10 D. L. R. 318 and Md. Magdu Bhuiya Vs. Jabban Huq 11 DLR 355 and Md. Habibullah Patwari Vs. Pran Ballav Bhakta & others 9 DLR 119 and some cases of Indian jurisdiction. In this case we need not reconsider those decisions.

10. After considering the mores of our people, the co-sharers' attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression 'a dwelling house belonging to an undivided family' is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & ors 40 DLR (AD) 150. A co-sharer's prayer to buy up a stranger-purchaser may not be refused on a technical ground.

11. The appellate Court's finding that "the suit land is no doubt a homestead, but is not a dwelling house of an undivided family" is utterly misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been no partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case the plaintiffs' claim cannot be called stale. The defendant's claim of continuous possession since purchase would be of no consequence. The claims of the parties in a case are to be determined with reference to their respective positions existing at the time of the filing of the suit. Hence we do not find any substance in the appellant's second contention that the plaintiffs could get a separate saham by maintaining the existing possession of the co-sharers. If an application under section 4 of the Partition Act is filed to buy-out a stranger-purchaser after an inordinate delay from the date of the purchase then the applicant himself may suffer. When an applicant's prayer is allowed under section 4 of the Partition Act it involves a kind of forced sale for the stranger-purchaser. And hence the Court would in equity determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger-purchaser.

12. In view of the above, the appeal is dismissed. No costs in this appeal.
Ed.

Secretary, BADC Vs. M/S. Greeners Engineering Ltd. [4 LNJ AD (2015) 125]

Case No: CIVIL APPEAL No. 137 OF 2006

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. Nurul Amin,,

Citation: 4 LNJ AD (2015) 125

Case Year: 2015

Appellant: Secretary, BADC

Respondent: M/S. Greeners Engineering Ltd.

Subject: Arbitration,

Delivery Date: 2014-04-22

APPELLATE DIVISION
(CIVIL)

Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Hasan Foez Siddique, J.

Judgment on
22.04.2014

}
}
}
}
}

Secretary, Bangladesh Agricultural Development Corporation (BADC).
...Appellant
Versus
M/S. Greeners Engineering Ltd.
...Respondents

Arbitration Act (X of 1940)
Sections 30 and 33
Since the order appointing the learned Arbitrator was stayed and it was brought to the notice of the learned Arbitrator, it was clearly a misconduct of the learned Arbitrator to proceed with hearing the Arbitration and making an award during the subsistancy of the order of stay.
In view of the above, it is patently clear that the order appointing the learned Arbitrator was stayed by the court making the appointment and the fact of the stay order and the challenge against the appointment before the High Court Division was brought to the notice of the learned Arbitrator. It appears that the High Court Division has overlooked this aspect of the case. It is also apparent that the learned Arbitrator acted beyond his jurisdiction when the order appointing him as Arbitrator was stayed. These facts having been brought to his notice in the application for adjournment, it was clearly misconduct on the part of the learned Arbitrator to proceed with hearing the arbitration and making an award during the pendency of the order of stay. . . . (13)

For the Appellant : Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. N.I. Bhuiyan, Advocate-on-Record
For Respondent : Mr. Nurul Amin, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record

CIVIL APPEAL No. 137 OF 2006.

JUDGMENT

Muhammad Imman Ali, J.

This Civil Appeal, by leave, is directed against the judgment and order dated 11.08.2003 passed by a Division Bench of the High Court Division in First Miscellaneous Appeal No. 22 of 2002 dismissing the Appeal.

The facts of the case, in brief, are that the respondent as plaintiff filed Arbitration Miscellaneous Case No. 512 of 1986 in the 3^rd Court of the Subordinate Judge, Dhaka impleading the present appellant as defendant praying for appointment of an Arbitrator to arbitrate a dispute which arose out of tender invited by the defendant BADC for supplying and installing machinery for the electrical sub-station of the cold storage plant at Zia International Airport on 05.12.1984 on Turn Key basis and acceptance of the lowest bidder submitted by the plaintiff-respondent, who furnished Bank Guarantee of Tk. 87,900/- for the work which was to be completed at a cost of 8,79,000/- in terms of the specification as mentioned in the tender notice. The machineries were to be installed under the direction of one Mr. A.H.M. Aminur Rahman, Executive Engineer and Mr. Imam Ali, Deputy Manager, BADC. The defendant also directed the plaintiff to install a rolling shutter at the cost of Tk. 1,00,000/- as non-tender item. The plaintiff respondent completed the work in terms of the specification mentioned in the tender notice and submitted bill of Tk. 8,79,000/- but the defendant did not pay the bill without any reason. In such facts and circums-tances the plaintiff prayed for appointment of an Arbitrator in terms of the agreement between the parties and claimed an amount of Tk. 8,79,000/- being the cost against the work done in terms of the tender notice, Tk. 1,00,000/- for non-tender item, interest of Tk. 32,00,000/- for withholding the amount for about 12 years and also Tk. 30,00,000/- for damaging plaintiff’s reputation in the form of business loss and loss of goodwill.

The defendant being the second party filed written objection in the arbitration proceeding and Mr. Israil Hossain a retired District Judge was appointed Arbitrator by order dated 11.12.1986. This appointment was challenged before the High Court Division and the appointment was cancelled and the learned Sub-ordinate Judge was directed to appoint a new Arbitrator Mr. Moksudur Rahman, learned Advocate, who was then appointed Arbitrator, but this order was again challenged and the High Court Division set aside the appointment of Mr. Moksudur Rahman as Arbitrator and directed the learned Sub-ordinate Judge to appoint a new Arbitrator. Thereafter, the learned Sub-ordinate Judge upon hearing the parties by order dated 25.02.1997 appointed Mr. Israil Hossain, Advocate as Arbitrator and fixed 02.05.1997 to file the award. The Arbitrator accordingly entered into the reference and filed the award before the court on 30.04.1997.

The plaintiff-respondent then made a prayer for making the award rule of the court and the defendant-appellant filed an application on 01.06.1997 under section 30 and 33 of the Arbitration Act, 1940, for setting aside the award dated 28.04.1997. On these two applications Title Suit No. 191 of 2001 of the 3^rd Court of the Joint District Judge, Dhaka was started. The learned Joint District Judge, by the impugned order dated 21.10.2001 found that the learned Arbitrator filed the award in accordance with law and committed no misconduct and the award was proper and valid. Accordingly by judgement and order dated 21.10.2001 the learned Joint District Judge made the award dated 28.04.1997 rule of the court.

Being aggrieved by the aforesaid judgement and order the defendant as appellant has preferred First Miscellaneous Appeal under section 39 (I)(VI) of the Arbitration Act, 1940.

By the impugned judgment and order, the High Court Division dismissed the appeal with cost of Tk. 10,000/- which was to be deposited by the appellant before the trial court within a period of 3 months from the date of the receipt of this order by the trial court.

The defendant then filed Civil Petition for Leave to Appeal No. 472 of 2004 before this Division. Leave was granted to consider the following grounds:

“I. Whether the Arbitrator committed misconduct in making the award ex-parte depriving the petitioner BADC of the opportunity to take the matter before the High Court Division and it will be seen on the face of the record that the Arbitrator made the award ex-parte on 28.04.1997 rejecting the prayer for adjournment on 27.04.1997 on the ground that 02.05.1997 was fixed for filing the award although the order of appointment of Arbitrator was stayed till 02.05.1997 and the High Court Division committed an error of law in dismissing the appeal without considering that in view of the facts and circumstances the ex-parte award in not sustainable; and
II. Whether the High Court Division committed an error of law in arriving at a finding that the order of stay has not been brought to the notice of the Arbitrator without considering that on 27.04.1997 an adjournment was sought for bringing the matter to the notice of the Arbitrator that the learned Sub-ordinate Judge stayed the appointment of Arbitrator for moving a revisional application before the High Court Division; hence the Arbitrator committed legal misconduct in rejecting the application for adjournment and in making the award.”

Mr. Abdul Wadud Bhuiyan, learned Senior Advocate appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. He submitted that the Arbitrator committed misconduct in making the award on 28.04.1997 where on the face of the record the learned Subordinate Judge had stayed the matter till 02.05.1997. He submitted that the order of stay was communicated to the Arbitrator on 27.04.1997 when a prayer for adjournment of the arbitration was moved. He submitted that the High Court Division committed an error of law in dismissing the appeal without considering the facts and circumstances especially since the award was made when there was an existing order of stay by the learned Subordinate Judge whereby the order to file the award by 02.05.1997 was stayed till 02.05.1997. Hence, the filing of the award on 30.04.1997 was in contravention of the order of stay. The learned Advocate further submitted that the High Court Division committed an error of law in arriving at a finding that the order of stay has not been brought to the notice of the Arbitrator when the facts disclose that on 27.04.1997 an adjourn-ment was sought bringing the matter to the notice of the Arbitrator that the learned Sub-ordinate Judge stayed the appointment of Arbitrator for moving a revisional application before the High Court Division; hence the Arbitrator committed legal misconduct in rejecting the application for adjournment and in making the award. The learned Advocate lastly submitted that the High Court Division committed an error of law in dismissing the appeal without considering that Mr. Md. Israil Hossain (retired District Judge) was appointed Arbitrator by an order dated 03.12.1986 which order was set aside by the High Court Division on 28.04.1994 in Civil Revision No. 653 of 1991 and the same Mr. Md. Israil Hossain was again appointed Arbitrator by an order dated 25.02.1997. He was, therefore obliged to start that arbitration proceedings afresh by issuing fresh notices on the parties. The award shows that the arbitration was started in 1991 which is an illegality since the earlier appointment was cancelled by order of the High Court Division.

Mr. Nurul Amin, learned Advocate appearing on behalf of the respondent made submission in support of the impugned judgement and order of the High Division. He submitted that the order of stay was not communicated to the arbitrator; only an adjournment was sought. He further submitted the re-appointment of the arbitrator was not illegal since the second appointment was made after hearing both parties.

We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.

The High Court Division noted that the learned Subordinate Judge himself stayed operation of his own order dated 25.02.1997 appointing Mr. Md. Israil Hossain as Arbitrator. However, the High Court Division dismissed the appeal upon finding that there was nothing on record to indicate that the order of stay was served on the learned Arbitrator or that any party to the arbitration proceeding brought the stay order to the notice of the Arbitrator.

Upon scrutiny of the papers on record, it is apparent from the order of the learned Arbitrator dated 27.04.1997 that the second party (defendant) prayed for adjournment. It further appears that, in his application dated 27.04.1997 addressed to the learned Arbitrator, the defendant made a prayer to the learned Arbitrator not to proceed with the arbitration in view of the fact that he (defendant) had taken steps to file a civil revision before the High Court Division in connection with appointment of the Arbitrator. The defendant further pointed out in his application for adjournment that the Third Court of Subordinate Judge had stayed the matter for 10 days. It appears to us quite clear that the defendant had categorically intimated to the learned Arbitrator that his appointment was under challenge and that there was an order of stay by the learned Subordinate Judge.

In view of the above, it is patently clear that the order appointing the learned Arbitrator was stayed by the court making the appointment and the fact of the stay order and the challenge against the appointment before the High Court Division was brought to the notice of the learned Arbitrator. It appears that the High Court Division has overlooked this aspect of the case. It is also apparent that the learned Arbitrator acted beyond his jurisdiction when the order appointing him as Arbitrator was stayed. These facts having been brought to his notice in the application for adjournment, it was clearly misconduct on the part of the learned Arbitrator to proceed with hearing the arbitration and making an award during the pendency of the order of stay.

We find substance in the submission of the learned advocate for the appellant and for the reasons stated above we find merit in the appeal, which is, accordingly, allowed, without however any order as to costs. The parties are at liberty to take steps for appointment of a new Arbitrator, if so advised.

Ed.

Reference: 4 LNJ AD (2015) 125

Secretary, Bangladesh Bar Council Vs. A. F. M. Faiz & others, 2 LNJ (AD) (2013) 43

Case No: Civil Petition No. 1434 of 2012

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abdul Baset Majumdar,Mr. Md. Abdul Momen Chowdhury,,

Citation: 2 LNJ (AD) (2013) 43

Case Year: 2013

Appellant: Secretary, Bangladesh Bar Council

Respondent: A. F. M. Faiz & others

Delivery Date: 2012-06-18

APPELLATE DIVISION
(CIVIL)

Surendra Kumar Sinha, J.
Md. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.
Md. Shamsul Huda, J.

Judgment
18.06.2012

The Secretary Bangladesh Bar Council

---Petitioner

-Versus-

A. F. M. Faiz & others

---Respondents

Bangladesh Legal Practitioner and Bar Council Order, 1972
Article 8
Article 8 is not mandatory rather it is directory—Where a stature requires something to be done in a particular manner and the consequence of failure to do so are also provided no difficulty arise and the provision is construed as mandatory but when the stature does not specify the consequences of failure to do something in a particular manner such provision is directory.....(27)

HV Kamath vs Ishaque (1955)1 SCR 1104 (1126); Thomas M Cooley in his book "A Treatise on Constitutional Limitations" 1868 (Thirdprint) P 74 2004; AHM Mustafa Kamal Vs. Bangladesh (2009) 61 DLR (AD) 10; Md Delwar Hossain vs. State reported in 2006 Bangladesh Bar Council-Vs.-A. P.M. Faiz (Syed Mahmud Hossain, J) 2 ALR(AD)(2013)referred to BID (AD) 109; M/s. Gannysons Ltd. and another vs. Sonali Bank and others,(1985)37 DLR (AD)42; AFM Nazimddin Vs. Mrs. Hameeda Banu, (1993) 45 DLR (AD)38 ref.

For the Petitioner (In C. M. P. Nos. 622-624/12) : Mr. Abdul Baset Majumder, Senior Advocate (with Mr. M.K. Rahman, Senior Advocate), instructed by Zainul Abedin, Advocate-on-Record.
For the Petitioner. (In C.P. No. 1434/12): Mr. Md. Abdul Momen Chowdhury, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Respondents: (In all the C.M. Petitions): Not represented.

Civil Misc. Petition Nos. 622-24 of 2012 with Civil Petition No. 1434 of 2012

JUDGMENT

Syed Mahmud Hossain, J:

Civil Petition for Leave to Appeal No. 1434 of 2012 and Civil Miscellaneous Petition for Leave to Appeal Nos.622-624 of 2012 involving similar questions of law having been heard together and are now disposed of by this common judgment.

Civil Petition for Leave to Appeal No. 1434 of 2012 is directed against the judgment and order dated 20.05.2012 passed by a Division Bench of the High Court Division disposing of Writ Petition No.4546 of 2012.

The relevant facts for the purpose of disposal of this civil petition for leave to appeal are as follows:
The Chairman of the Bangladesh Bar Council   by   a   circular   dated   14.03.2012 declared the election schedule to elect 14 members of the Bar Council under Article 8 of the Bangladesh Legal Practitioners and Bar Council Order, 1972 (hereinafter referred to as the Order of 1972). Subsequently, the schedule was amended on 12.04.1972. The writ-petitioners who are the voters, procured a voter list on 10.04.2012 which was published on 09.04.2012 and came to know that their names have been recorded in the voter list twice. On verification, it was discovered that in most of the cases, the name of each member has been recorded in more than one place in the voter list. On search, the writ-petitioners had been able to find out 500 cases whose names had been recorded in the voter list in more than one place. It has further been stated that Article 10 of the Order of 1972 provides that the Bar Council shall admit persons as Advocates on its roll; to hold examinations for purposes of admission and to remove Advocates from such roll and also to prepare and maintain the roll of Advocates. Article 20 provides that the Bar Council shall prepare and maintain a roll of Advocates. Article 23 provides for entries in the roll in order of seniority and Article 25 provides that the roll shall be made in order of seniority. The roll of Advocates prepared and maintained in accordance with the provisions of P. O. No.46 of 1972 shall be the sole basis for holding the election of the Bar Council but on scrutiny, the list of voters published by the Bar Council on 09.04.2012 shows ex facie that the same was merely consolidation of the members list obtained from various Bar Associations recognized by the Bar Council. Consequently, many Advocates have been shown as voters twice or thrice. The voter list prepared by the Bar Council on the basis of the lists of members of different Bar Associations is illegal. It has further been stated that election is a formal decision making process which cannot be allowed to be frustrated by an election of the national Bar Council on the basis of inflated and illegal voter list.

Being aggrieved by and dissatisfied with Memo No.BBC/Prosha/2012/680(81) dated 14.03.2012 and   the Memo No. BBC/Administration/2012 dated 12.04.2012 issued by the Chairman of Bangladesh Bar Council, the writ-petitioners   moved   the   High   Court Division by filing Writ Petition No.4546 of 2012 and obtained Rule Nisi.

Writ-respondent No. l, 2 and 4 entered appearances by filing affidavit-in-opposition controvert the material statements made in the writ petition. Their case, in short, is that some names of the voters appeared in the list in more than one polling station and the reason is that the lists sent by the different Bar Associations had been printed by the Bar Council as the voter list. This process has been continuing for a long time. No one raised any objection. At a special meeting held on 29.04.2012, the Bar Council took resolution to omit the names of the voters whose names appeared in the voter list twice. The Bar Council has already made correction of the names of the voters. Some steps for holding the election have already been taken. In such circumstances, the process of election should not be stopped as the learned Advocates are waiting to cast their votes.

The writ-petitioners, by a supplementary affidavit dated 09.05.2012, further stated that they have been able to collect 52 more names in the voters' list whose names have been recorded as voters in more than one place. In the affidavit-in-reply, the writ-petitioners also stated that the statement made in paragraph-4 of the affidavit-in-opposition that "the Bar Council will take all the precaution to see that double voting is checked and accordingly, instruction has been given to the respective presiding officers to that effect" exposes that instruction has replaced the law that requires a consolidated Roll of Advocates under Articles 5, 20, 232 and 25 read with articles 2(d) (e) and (h) of the Order of 1972. The law requires the Bar Council shall publish such list of voters in accordance with Articles 5, 20, 23 and 25 of the Order of 1972 at least 30 days before the polling. The voter list has not been prepared in accordance with law.

The learned Judges of the High Court Division upon hearing the parties disposed of the Rule by the judgment and order dated 25.05.2012.

Feeling aggrieved by the impugned judgment and order passed by the High Court Division, writ-respondents have filed this Civil Petition for Leave to Appeal No. 1434 of 2012 before this Division.

Civil Miscellaneous Petition for Leave to Appeal No.623 of 2012 arises out of Writ Petition No.7003 of 2012. In that writ-petition, the petitioner impugned the election schedule dated    20.01.2000 published by writ-respondent No. l fixing the date of election of Bangladesh Bar Council on 17.06.2012 on averments that the schedule is violative of Article 7 of Bangladesh Legal Practitioners and Bar Council Order, 1972 (in short, the Order) and that the election schedule is also violative of Article 9 of the Order of 1972. The impugned election schedule also violates Rule 11 of the Bar Council Rules, 1972.

The writ-petitioners obtained Rule Nisi and an interim order of stay on the date of issuance of the Rule.

Civil Miscellaneous Petition for Leave to Appeal No.624 of 2012 arises out of Writ Petition No.7017 of 2012. The aforesaid writ- petition was filed challenging the failure of Bangladesh Bar Council in not concluding the Bar Council election on or before 31st Day of May, 1912 and that the impugned election schedule is violative of Article 8 of the Order of 1972.

At the time of issuance of the Rule, the petitioner obtained an interim order dated 05.06.2012 staying operation of the election schedule.

Civil Miscellaneous Petition for Leave to Appeal No.622 of 2012 arises out of Writ Petition No.7045 of 2012. In the aforesaid writ petition, the petitioner challenged the election schedule and the election process on various grounds.

On 05.06.2012, the High Court Division issued a Rule Nisi and passed an interim order of stay in that writ petition against which this civil miscellaneous petition for leave to appeal has been filed.

Mr. Abdul Baset Majumder, learned Senior Advocate, appearing on behalf of the leave-petitioner in Civil Miscellaneous Petitions for leave to Appeal Nos.622-624 of 2012, submits that the High Court Division in Writ Petition No.4546 of 2012 has considered all the points which are involved in the writ petitions from which   the   present   civil miscellaneous cases for leave to appeal arise. He further submits that unless the interim orders of stay passed in the writ petitions are vacated the Bar Council Election cannot be held as per the schedule declared by the Bar Council. He then submits that the Bangladesh Bar Council declared the date of election within time-frame given in Article 8 of the Order of 1972 and that because of the interim orders of stay passed by the High Court Division the schedule had to be changed and that the writ petitions filed subsequent to the disposal of Writ Petition No.4546 of 2012 are new devices to delay the election.

Mr. A. J. Mohammad AH, learned Senior Advocate appearing on behalf of respondent No. 1 in civil miscellaneous petition for leave to appeal Nos.623-624 of 2012, on the other hand, submits that according to Sub-rule (1) of Rule 11 of the Bangladesh legal Practitioner and Bar Council Rules, 1972 (in short, the rules),the Bar Council is required to publish a voter shall cast his vote at least 30 days before the polling and that admittedly, there are serious faults in the voter list and as such, the election process should start afresh after correct the voter list.

We have considered the submission of the learned Advocates, pressured the judgment delivery in Writ Petition No.4546 of 2012 and the records of other write petitions in which the High Court Division issued Ruled and passed interim orders stopping the election schedule of the Bangladesh Bar Council..

At the very outset, it is important to outset that the Bar Council election should be held a.: expeditiously as possible and therefore, we have decided to dispose of all the civil miscellaneous petitions for leave to appeal and the civil petition for leave to appeal by this common judgment and the writ petitions now awaiting disposal before the High Court Division shall   be deemed   to   have been disposed of.

In order to address the submissions the Article 8 of the Order of 1972 is mandatory and that there is no scope for holding election of the Bangladesh Bar Council beyond the time frame, Article 8 of the Order of 1972 is quoted below:

"Elections to the Bar Council shall always, be held so as to conclude on or before the thirty first day of May_; in the year in which in term of Bar Council expires."

The Chairman of the Bangladesh Bar Council by a circular dated 14, 03.2012; declared the schedule of election to elect 14 Members of Bangladesh Bar Council according to Article 8 of the Order of 1972 and the schedule was subsequently amended on 12,04.2012. The amended schedule is saw follows

"Date of submission of nomination paper—from 17.04.2012.

Date of scrutiny ------- 26.04.2012,

Date of withdrawal of nomination paper — -29.04.2012.

Date of holding election ......... 28.05.2012.

Date of filing objection — with one month from the date of publication of the result.

Date of receiving objection by the Tribunal ......... -05.07.20I2.”

The above schedule reveals that steps were taken to hold the election within 3 1 st day of May according to the mandate of Article 8 of the Order of 1972. Allegations were made that there were serious mistakes in the voter list and that the names of. Many voters have been recorded in the voter list twice and thrice. Therefore, challenging the voter list, the writ petitioner of Writ Petition No.4546 of 2012 obtain a Rule and interim order of stay from the High Court Division and subsequently, the election could riot ho held according to the

Challenging the interim order of stay, the Bangladesh Bar Council filed a civil miscellaneous petition for leave to appeal before this Division and the learned Judge-in Chamber stayed the operation of the impugned interim order of stay passed by the High Court Division and directed to connect the voter list within a stipulated date. The Full Court of this Division, How ever, maintained the interim order to stay passed by the High Court and directed a particular Bench of the High Court Division to dispose of Writ Petition No.4546 2012 within a stipulated time. Therefore, it uppers that; he, election could not be held within 31st day of May for fie reasons which were beyond the control of the Bangladesh Bar Council.

Having gone through Article 8 of the Order to 1972, it appears that no consequence Has been attached to it in the event of failure of the Bar Council to concluded the election within 31^st day of May of the Bar Council to conclude the ejection within 31st day of May.

The word "shall" gives an impression that the time-frame given in Article 8 of the Order of 1972 is intended to be mandatory. The article requires to be considered in the light of the intention of the legislature by carefully construing the scope of the statute and the consequences that flow from the construction there of.

Where a statute requires something to be done or to be done in a particular manner and the consequences of failure to do so are also provided, no difficulty arises and the provision is construed as mandatory. But where the statute requires something to be done or to I have done in a particular manner without specifying the consequences of noncompliance, a question arises as to whether the requirement is to be construed as merely directory, or as imperative or mandatory.

Henry Cambell Black in his handbook on Constitution and Interpretation of Laws 334 1896 opined:

"A provision is said to be mandatory when disobedience to it or want of exact compliance with it will make the ad done under the statute absolutely void.”

Craies on Statute Law, 6th Ed. opined:

"The terms "mandatory" and "directory" refer to the method by which the legislature sets about attaining its object. When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performa-nce, those prescribed formalities which are essential to the validity of the thing when done are called imperative (or mandatory); but those which are not essential, and may be disregarded without invalidating the thing to be dine, are called director-.!. "

In the case of HV Kamath vs Ishaque (1955)1 SCR 1104 (1126) it was held:

"The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially complied with."

Thomas M Cooley in his book "A Treatise on Constitutional Limitations" 1868 (Third print) P 74 2004 wrote as under:

"In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot be effectually exercised without observing them. There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employment or failing to employ negative words which imported that the act should be done in a particular manner or time, and not otherwise. The use of such words is often very conclusive of intent to impose a limitation; but their absence is by no means equally conclusive that the statute was not destined to be mandatory. Lord Mansfield would have the question whether mandatory or not depends upon whether that which was directed to the done was or was not of the essence of the thing required. The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute.

But many regulations are made by statutes designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, compliance or non-compliance with which does in no respect affect the rights of tax paying citizens. These may be considered directory. Officers may be liable to legal animadversion, perhaps to punishment, for not observing them; but yet their observance is not a condition precedent to the validity of the tax."

In the case of AHM Mustafa Kamal vs. Bangladesh (2009) 61 DLR (AD) 10, this Division held as under:

"Since no consequence has been provided for the provisions both in section 6A of the Criminal Law Amendment Act and Rule 19Ka of the EP Rules, 2007, they are directory in nature and the Court shall not become Functus officio even after the expiry of stipulated period."

In the case of Md Delwar Hossain vs. State reported in 2006 BLD (AD) 109 this Division considered whether section 20 of the Nari-o-Shishu Nirjatan Daman Ain, 1995 providing for conclusion of the trial within 120 days is directory or mandatory. This Division held that sub-section 2 of section does not provide for a consequence for failure of the trial Court to conclude the trial within 120 days. The provision is not mandatory rather directory.

From the cases referred to above, it appears that unless consequence is provided, a provision though appears to be mandatory is directory.

Bangladesh Bar Council did not have any latches in not holding the election within 31^st day of May in the year in which the terms of the Bar Council expired and because of intervention of the Court the election could not be held. Though the language of Article 8 of the Order of 1972 appears to be mandatory no consequence has been attached thereto. Therefore, Article 8 of the Order of 1972 is directory and not mandatory.

Article 20 of the Order of 1972 provides that that the Bar Council shall prepare and
maintain a roll of Advocates. The provision of this Article is quoted below:

"20. The Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names of-

a. all persons who were, as advocates, entitled to practice in the High Court or in any court subordinate to the High Court ultimately before the commencement of this order;

b. all persons who are admitted as advocates under the provisions of this Order. "

Rule 11 of the Rules provides for preparation of voter list and casting of votes. Rule 11 is quoted below:

"11. (1) The Bar Council shall publish a list of voters showing at which polling station a particular voter shall cast his vote at least thirty days before the polling.
Provided that the Bar Council shall have power to add to the list till the polling
Provided further that no person shall be entitled to vote if he ceases to be an Advocate before the poll
(2) All voters shall cast their votes at the polling stations indicated in the list except persons appointed as polling agents who shall be entitled to cast their votes at the polling station for which they have been appointed. A candidate can cast his vote at any polling station."

Having considered the provisions of Article 20 of the Order of 1972 and Rule 11 of AD# 10 (Forma No. 3) the Rules, in general, and Sub-rule (1) of rule 11, in particular, we are of the view that the Bar Council is required to publish a correct voter list at least 30 days before the polling. A voter list containing innumerable mistakes can not be regarded as a voter list as contemplated under Sub-rule (1) of Rule 11 although the first proviso to it states that the Bar Council shall have the power to add to the list till the polling. This proviso does not allow the Bangladesh Bar Council to delete the names of 500 to 600 voters from the voter list before the polling. In addition, the candidates must know before participation in the election about the exact number of voters in the roll. Though it is not expected that a learned Advocate whose name is recorded as voter in more than one Bar Association will not cast his vote in more than one Bar Association, there may be a few unscrupulous ones who may cast their votes in more than one Bar Association. The preparation of correct voter list is an important part of the election process and a voter list containing duplication and triplication of the names of some of the voters must be corrected before declaration of election schedule.

Having given our anxious consideration try the facts and circumstances of the cases, we feel that the Bar Council should be run by elected representatives and as such, tile election of the Bar Council should be held as expeditiously as possible. We also feel that keeping the litigations pending in the High Court Division; it is not possible to initiate the election process afresh.

This Division previously exercised the power of doing complete justice under article 104 of the Constitution in several cases including the cases of M/s. Gannysons Ltd. and other vs. Sonali Bank and others, (l985)37 DLR (AD)42 and AFM Naziruddin vs. Mrs. Hameeda Banu, (1993) 45 DLR (AD) 38. The subject-matter of the instant case not only presents an occasion to but also demands, exercise of the power of this Division.

Therefore, we have decided to dispose of all the civil miscellaneous petitions for leave to appeal and the civil petition for leave to appeal. In order to ensure free and fair election, a fresh schedule should be published by the Bar Council after correcting the voter list so that there can not be duplications and triplications of some voters in different Bar Associations. Therefore, all the cases are disposed of on the following terms:

Civil Miscellaneous Petition Nos.622-624 of 2012, Writ Petition Nos.7045, 7003 and 7017 of 2012 out of which the above civil miscellaneous petitions arose and civil petition for leave to appeal No. 1434 of 2017 are disposed of.

The declaration of election schedule by the Bangladesh Bar Council for holding election of Bar Council for the term from 2012 to 2015 is cancelled. The election of Bangladesh Bar Council shall be held within 30 days from date according to the following schedule;

Date of filing of nomination paper by 25.06.2012.
Date of scrutiny: 28.06.2012.
Date of withdrawal: 05.07.2012.
Date of election: 18.07.2012.

The Bangladesh Bar Council is directed to publish the above schedule by 19.06.2012.

The tenure of the incumbent Bangladesh Bar Council is extended till 30th July, 2012 or till publication of the election result in the official Gazette, whichever is earlier.

Ed.

Secretary, Ministry of Agricultural and others Vs. Rabia Khatoon and others

Case No: Civil Appeal No. 25 of 2001

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Naima Haider,,

Citation: 61 DLR (AD) (2009) 121

Case Year: 2009

Appellant: Secretary, Ministry of Agricultural and others

Respondent: Rabia Khatoon and others

Subject: Property Law,

Delivery Date: 2009-02-02

Secretary, Ministry of Agricultural and others Vs. Rabia Khatoon and others
61 DLR (AD) (2009) 121

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J

Secretary, Ministry of Agricultural and others..... Appellants
Vs.
Rabia Khatoon and others..... Respondents

Judgment
February 2, 2009.

East Bengal Emergency Requisition of Property Act (XIII of 1948)
Section 5(7)

In the facts and circumstances of the case and in view of the fact that final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, the judgment of the High Court Division requires interference. Accordingly, the appeal is allowed without any order as to costs.

Lawyers Involved:
Mrs. Naima Haider, Deputy Attorney General, instructed by B. Hossain, Advocate-on-record-For the appellants.
Muhammad Nawab Ali, Advocate-on-record-for the Respondent No. 2.
Not represented- Respondent No.1, 3-9.

Civil Appeal No. 25 of 2001
(From the judgment and order dated 10th December, 1996 passed by the High Court Division in Writ Petition No. 1506 of 1989).

Judgment

MM Ruhul Amin CJ.- The instant appeal, by leave, is directed against the judgment and order dated 10th December, 1996 passed by the High Court Division in Writ Petition No. 1506 of 1989 making the Rule absolute.

2. Short facts are that the writ-petitioner-respondents was the owner of the house known as "Hriday Nibash" within Mymensingh Municipality and the said house was requisitioned by the Collector of Mymensingh in H.R. Case No. 58/59-60 for the use of office of the Plant Protection Officer under the Agriculture Department. Subsequently, the house was occupied by the Regional Director of Agriculture Department for the last 5/6 years. In the meantime, process of acquisition of the property in question was started in L.A. Case No. 33 of 1965-66 and the same is still pending for acquisition. The property though not acquired by the Government, the Agriculture Department issued a tender on 15.5.1989 for renovation of the building in question at a cost of Tk. 3,55,000/-. The writ petitioner being aggrieved by the tender notice as owner of the property challenged the tender notice before the High Court Division in the writ petition.

3. The writ respondent-petitioners by filing an affidavit-in-opposition stated that the notification of the final acquisition of the said suit property in the official gazette has been delayed because of the successive representations made by the writ petitioner to the Ministry of Land Reforms and Land Administration and also for several civil suits between the Government and the owner of the house in question.

4. It is further contended in the affidavit-in-opposition that the suit building is an old building of more than 100 years back and the house being in dilapidated condition, it being absolutely unsafe and risky for use of office accommodation, the renovation of the building was urgently felt and as such tender was called for.

5. Leave was granted to consider the submissions that the property in question having been requisitioned for the purpose of acquisition under the Emergency Requisition of Property Act in 1965-66, the High Court Division was wrong in making the Rule absolute on the basis of submission made relying on the provision of section 23 of the Acquisition and Requisition of Property Ordinance, 1982 and the further submission that in the absence of any averment made in the writ petition to the effect that the Deputy Commissioner did not obtain any report from the local executive engineer regarding the condition of the requisitioned building, the High Court Division was wrong in not applying the provision of section 7C of the Emergency Requisition of Property Act relying on the submission that such report was not obtained by the Deputy Commissioner and also the submission that in any view of the matter, Gazette Notification having been made on 18.3.1993 under section 5(7) of the Emergency Requisition of Property Act, 1948, whereby the title to the property in question in the Government, the Rule cannot made absolute.

6. We have heard Mrs. Nasima Haider, the learned Deputy Attorney General for the appellants and Mr. Muhammad Nawab Ali, the learned Advocate-on-Record for the respondent No.2 and perused the impugned judgment of the High Court Division and other connected papers on record.

7. The learned Deputy Attorney General appearing for the appellants has drawn our attention to the Gazette Notification dated 18th March, 1993 of the Ministry of Land in respect of the suit premises (at page 110 of the paper book) and submitted that final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, 1948 in respect of the suit premises has already been made on 18th March, 1993 and as such the right, title and interest if any of the previous owner had extinguished and the property absolutely vested in the Government.

8. In the facts and circumstances of the case and in view of the fact that final Gazette Notification under section 5(7) of the Emergency Requisition of Property Act, 1948 had already been made in 1993. In our view the judgment of the High Court Division requires interference by us.
Accordingly, the appeal is allowed without any order as to costs.
Ed.

Secretary, Ministry of Defence and others Vs. Abdul Mannan Lasker and another

Case No: Civil Appeal No. 50 of 1997

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,A J Mohammad Ali,,

Citation: 1 ADC (2004) 555

Case Year: 2004

Appellant: Secretary, Ministry of Defence and others

Respondent: Abdul Mannan Lasker and another

Subject: Administrative Law,

Delivery Date: 2004-3-23

Secretary, Ministry of Defence and others

Vs.

Abdul Mannan Lasker and another, 2004,

1 ADC (2004) 555

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Secretary, Ministry of Defence and others……………………….. Appellants

Vs.

Abdul Mannan Lasker and another .......Respondents

Judgment
March 23, 2004.

The Administrative Tribunals Act, 1980 (VII of 1981)

That two years ante-dated seniority was granted to the respondent No.1 because of his contribution to the liberation war. But afterwards his previous service records were received from Pakistan and then the fact that he did not participate in the war of liberation was revealed and there was also nothing on record to show that the respondent No.1 was associated with the liberation war in 1971 and accordingly his ante-dated seniority was cancelled. Further a certificate appeared that he is in the liberation war but it had no evidentiary value in the eye of law.

Lawyers Involved:
A.J. Mohammad Ali, Additional Attorney General, instructed by Ataur Rahman Khan, Advocate-on-Record-For the Appellants.
Md. Nawab Ali, Advocate-on-Record-For the Respondent.

Civil Appeal No. 50 of 1997.
(From the Judgment and Order dated 26th September,1994 passed by the Administrative Appellate Tribunal in Administrative Appeal Case No. 15 of 1993).

Judgment:
Md. Tafazzul Islam J.- This appeal by way of leave arises out of the judgment and order dated 26.9.1994 passed by Administrative Appellate Tribunal, Dhaka in Appeal No. 15 of 1993 allowing the appeal and setting aside the judgment and order of the Administrative Tribunal dated 7.1.1993 dismissing Administrative Tribunal Case No. 38 of 1987.

2. The respondent No.1 filed the above Administrative Tribunal Case stating that on 10.2.70 he was appointed as a Chargeman in the Pakistan Ordnance Factory at Wah Cantonment, Rawalpindi and on 10.5.71 he came to Bangladesh on 38 days earned leave and on his arrival at home in the district of Faridpur, he participated in the war of liberation by way of supplying food to the freedom fighters and after liberation of Bangladesh he joined the Bangladesh Ordnance Factory at Gazipur on 16.12.71 and had he not joined the war of liberation, after expiry of his leave, he could easily go to Pakistan to join his service there; he was granted two years ante-dated seniority in recognition of his participation in the liberation war but for some unknown reason by order dated 19.3.86 his ante-dated seniority was cancelled and the review petition filed by him in respect of the above order dated 19.3.86 was also rejected.

3. The appellant contested the above case and filed written statement denying all the material allegations and stating, inter alia, that respondent No.1, who was appointed as Chargeman in the Engineering Trade of Pakistan Ordnance Factory on 10.2.70 came to his home by taking 38 days earned leave from 10.5.71 to 16.6.71 and he never participated in the liberation war and on the other hand after expiry of leave, he prayed for extension of his leave on medical ground by sending letters and telegram and also prayed for allowing him to join in the Ordnance Factory at Gazipur by expressing his allegiance to the Government of Pakistan and further, the father of respondent No.1 also sent petition seeking mercy of the authorities in Pakistan. After, liberation the respondent No.1 joined Gazipur Ordnance Factory and by supplying false particulars obtained two years ante-dated seniority. Subsequently after his previous service records were received from Pakistan, it was revealed that he did not participate in the war of liberation and on the contrary he showed allegiance to the Government of Pakistan and so his two years ante-dated seniority was cancelled.

4. The Administrative Tribunal dismissed the case holding that respondent No.1 was not a freedom fighter and so the appellant did not commit any illegality in cancelling his antedated seniority. However the Administrative Appellate Tribunal allowed the appeal holding that the materials on record showed that respondent No.1 was a freedom fighter.

5. Leave was granted in the following terms:-
"Mr. Shamsul Alam, the learned Deputy Attorney General appearing for the petitioner submits that the Administrative Appellate Tribunal acted illegally and wrongly in setting aside the judgment of the Administrative Tribunal when as a matter of fact the case of respondent No.1 was based on no evidence in as much as respondent No.1 failed to show that he was associated with the liberation movement in 1971 and the learned Advocate next submits that the Administrative Appellate Tribunal committed an error of law in considering the alleged certificate dated 25.9.93 showing respondent No.1 as a freedom fighter which was filed for the first time before the Administrative Appellate Tribunal, although the Administrative Tribunal case was filed on 19.2.84 and the same was dismissed on 7.1.93 and as such the Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. He further submits that there is no evidence that respondent No.1 during the liberation period did not receive any salary from the Government of Pakistan and as such the finding of the Administrative Appellate Tribunal that during this period respondent No. 1 did not receive any salary form Pakistan is absolutely based on no evidence and consequently the judgment is liable to be set aside. In any view of the matter, the learned Advocate further submits, the initial grant of ante-dated seniority was not legal."

6. We have heard Mr. A. J. Mohammad Ali, the learned Additional Attorney General appearing for the appellant and Mr. Nawab Ali, the learned Advocate on-Record appearing for the respondent No.1 and perused both the judgments and also the relevant papers.

7. It is an admitted fact that the service record of the respondent No.1 was received from Pakistan which contained certain papers out of which the appellant, amongst others, annexed Annexure “Kha” to “Uma” in their written statement filed before the Administrative Tribunal. The appellant asserted that from the said papers they found that the respondent No. 1 did not participate in the liberation war as claimed by him earlier and there is also nothing on recorded to show that he was associated with the liberation war. Accordingly initial grant of ante-dated seniority being not found legal was withdrawn.

8. The Administrative Tribunal, as it appears, considered Annexure "Kha" which is the order granting leave to the petitioner on 26.4.71, Annexure "Gha" which is the telegram of the respondent No.1 seeking extension of leave from 17.6.71 to 24.1.72 on medical ground, Annexure "Gha which is the letter directing the respondent No. 1 to resume duties by 25.9.71, Annexure-"Uma" which is the letter of the respondent No. 1 intimating the authorities in Pakistan about his inability to resume duties due to threat of the freedom fighters and praying for permission to join at Gazipur Ordinance Factory to serve Pakistan Government and Annexure "Cha" which is the letter dated
9.11.71 by which the father of the petitioner made allegations to the Chairman Pakistan Ordnance Factory against the freedom fighters, found that respondent No.1 did not renunciate his allegiance to the Government of Pakistan during the liberation war and rather for the situation which was unfavorable for him due to liberation war he could not join his duties in the then West Pakistan and was always trying to resume his duties under the Pakistan Government and so the respondent No.1 was not entitled to claim two years ante-dated seniority on the ground that he participated in the liberation war and accordingly the seniority, which was granted on misrepresentation of facts and on misgivings, was rightly cancelled.

9. As it appears, the Administrative Appellate Tribunal allowed the appeal taking into consideration the fact that during the liberation war, the whole of the then East Pakistan was under the Pakistan Army and on body dared to utter a single word against the sovereignty of Pakistan regarding this part of the country and thus having put in such a dangerous and peculiar situation, it is quite natural for the respondent No. 1 to write/ send some untrue letters/telegrams, i.e. Annexures-Kha, Ga, Gha and Uma, to his Pakistani Authority and his father also had to write letter dated 9.11.71 to convince them that the respondent No. 1 was very loyal to Pakistan but for circumstances prevailing in the then East Pakistan he could not join his service at Rawalpindi and thus he had to play a double role, on the one hand supplying food to the freedom fighters and thereby collected secret information from occupation army camps and on the other hand to camouflage things to induce belief in the mind of the enemy soldiers that he was a true Pakistani and further, the very fact that the respondent No.1 had a return ticket for going back to Pakistan but he allowed the same to be lapsed and he did not return to Pakistan thereafter, speak volume in his favour and it can legitimately be inferred from the above facts that at heart the respondent No. 1 gave up his loyalty towards the Government of Pakistan and he was giving bluffs to the said Government authority to save his life from the hands of the occupation forces by writing letters and sending the above letters and telegrams. The Administrative Appellate Tribunal further held that the certificate dated 25.9.93 being issued by Bangladesh Muktijodha Sanahad, Gopalgonj District Unit Command the genuineness of the same having not been challenged by the appellant, shows that the respondent No. 2 was freedom fighter.

10. It is an admitted fact that the respondent No.1 came to his home at Faridpur by taking 38 days earned leave for the period from 10.5.71 to 16.6.71. From the contents of Annexures Kha to Uma it appears that after expiry of leave he prayed for extension of leave on medical ground, and also prayed for allowing him to join in the Ordnance Factory at Gazipur by expressing his allegiance to the Government of Pakistan. Moreover from the contents Annexure, 'Cha' it also appears that the father of respondent No.1 also sent petition seeking mercy of the authorities and to allow the respondent No.1 to join at Gazipur Ordnance Factory. It further appears that two years ante-dated seniority was granted to the respondent No.1 because of his contribution to the liberation war. But afterwards his previous service records were received from Pakistan and then the fact that he did not participate in the war of liberation was revealed and there was also nothing on record to show that the respondent No. 1 was associated with the liberation war in 1971 and accordingly his ante-dated seniority was cancelled. Further, certificate dated 25.9.93 showing respondent No. 1 as a freedom fighter, on which the Administrative Appellate Tribunal relied, was not filed before the Administrative Tribunal though as it appears the respondent No. 1 filed the above Administrative Tribunal Case No. 38 of 1987 on 19.2.84 and the same was dismissed on 7.1.93. Further the above certificate was procured on 25.9.93 i.e. after the above case was dismissed just to cover the alleged claim of being Muktijodha. It thus appears that the Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. Further there also is at all no evidence on record to show that respondent No.1 during the period of war of liberation did not receive any salary from the Government of Pakistan which is a pre-condition for obtaining any benefit in terms of Memo, dated 18.3.78 issued by the Established Division. So the finding of the Administrative Appellate Tribunal that during the period of war of liberation Respondent No.1 did not receive any salary from Pakistan is based on mere conjecture and surmise. Further Annexures-Kha, Ga, Gha, Uma and Cha clearly negatives the assertion of the respondent No.1 that he is a freedom fighter. So the order canceling the grant of ante-dated seniority to the respondent No.1 is not illegal.

In the result the appeal is allowed without any order as to costs.
Ed.

Secretary, Ministry of Education and others Vs. Mowlana Wahiduzzaman and another, VI ADC (2009) 1016

Case No: Civil Appeal No. 172 of 2002

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Nurul Amin,Nahida Yeasmin,,

Citation: VI ADC (2009) 1016

Case Year: 2009

Appellant: Secretary, Ministry of Education and others

Respondent: Mowlana Wahiduzzaman

Subject: Writ Jurisdiction,

Delivery Date: 2009-8-18

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
ABM Khairul Haque J

Secretary, Ministry of Education and others
…………………Appellants
Vs.
Mowlana Wahiduzzaman and another
……………. ....Respondents

Judgment
August 18, 2009.

The Madrasa Education Ordinance, 1978
Section 17 (2) (b)
Cancellation of the recognition is a cancellation of affiliation of the said Madrasa and it is not only violative of section 17 (2) (b) of the Madrasa Education Ordinance, 1978 but also violative of the scheme of the said Ordinance as reflected in section 3 (1) thereof which authorizes the Bangladesh Madrasa Education Board only to regulate, control, supervise, develop and improve the Madrasa education to the exclusion of the Ministry of Education and as such the other impugned in the writ petition is without lawful authority. ….. (8)

Lawyers Involved:
Mrs. Nahid Yesmin, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Appellants.
Md. Nurul Amin, Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent No. 1.
Not Represented-For Respondent No. 2.

Civil Appeal No. 172 of 2002
(From the judgment and order dated 19.4.2000 passed by the High Court Division in Civil Revision No.3623 of 1999.)

JUDGMENT

Md. Joynul Abedin J.

1. This appeal by leave is directed against the judgment and order dated 19.4.2000 passed by a Division Bench of the High Court Division in Writ Petition No. 3623 of 1999 making the rule absolute.

2. The writ petitioner respondents filed the aforesaid writ petition challenging the letter issued by the Senior Assistant Secretary, Section-16, Ministry of Education vide Memo No. SHANG-SHEEM/3HA:16/Miscellaneous2/98/516 (4) dated 7.6.1999 canceling the recognition of Noabenki Biralaksmi Kaderia Alim Madrasa and stoppage of payment of salary of its teachers and employees under Monthly Pay Order (M.P.O.) scheme on the averments that the said Madrasa was established on 1.1.1968 and it was given provisional recognition on 7.10.1977 and since then it was regularly renewed. The said Madrasa has a duly approved Managing Committee and its teachers including its Principal are all qualified and they have been enjoying the facility under the system of monthly Payment Order (M.P.O.). As a result 80% of the salary of the teachers and employees are paid by and received from the Government. At present the Madrasa has in total 298 students in Dakhil and Alim classes and 217 students in different Ebtedai Classes (from class I of V). The total number of students of the Madrasa now 515. It has a good Library and there is no other Madrasa within 17 Km radius of the Madrasa. There are at present 18 teachers and 4 employees. The Madrasa fulfilled al required conditions for its recognition and for the purpose of M.P.O. and its affairs are being managed by a Managing Committee duly approved by the Government and the Madrasa Education Board and the accounts of the Madrasa are also being regularly audited. Suddenly the writ respondent No.2 issued the impugned order vide the aforesaid Memo. Dated 7.6.1999 with reference to a purported inspection report of an inspection team although the said Madrasa fulfilled all required conditions. Further the writ respondent No.2 had no competence in law to cancel the recognition and to stop payment under M.P.O. scheme.

3. The writ respondent No.2 only contested the rule by filing affidavit-in-opposition supporting the impugned order stating that the Government being in overall control of the education system in the country it could also take the impugned action in addition to Madrasa Education Board.

4. A Division Bench of the High Court Division after hearing made the rule absolute by the impugned judgment dated 19.4.2000 mainly on the ground that "Though the report is an adverse one, but the inspection team ultimately recommended for continuing the money payment order. Under section 17(b) of the Madrasa Education ordinance, it is the Madrasa Education Board who can either accept or reject the said recommendation of the inspection team in respect of the affiliation of a Madrasa, but the respondent No.2 has got no such power and he can only act on the said recommendation in respect of money payment order only" and consequently declared the impugned order without lawful authority.

5. Leave was granted to consider the submissions that the impugned order having been passed by the Government canceling recognition and withdrawing Monthly Payment Order (M.P.O) provided by the Government, the High Court Division erred in construing the same as an order under Section 17(2) (b) of the Madrasha Education Ordinance, 1978 which deals with affiliating and thereupon wrongly declaring the impugned order to be without lawful authority.

6. We have heard Mrs. Nahid Yesmin, the learned Deputy Attorney General for the appellants and Mr. Md. Nurul Amin, the learned Advocate for the respondents and perused the impugned judgment of the High Court Division and order connected papers.

7. The learned Deputy Attorney General for the appellants argues that the High Court Division has erred in failing to appreciate and consider that the Government in the Ministry of Education being in overall control, maintenance and supervision of the Madrasa education it was competent to pass the impugned order in the interest of maintaining a reasonable standard of education imparted in the Madrasa. Consequently there has been a failure of justice.

8. Mr. Md. Nurul Amin, the learned Advocate for the respondents argues that the cancellation of the recognition is a cancellation of affiliation of the said Madrasa and it is not only violative of section 17(2) (b) of the Madrasa Education Ordinance. 1978 but also violative of the scheme of the said Ordinance as reflected in section 3(1) thereof which authorizes the Bangladesh Madrasa Education Board only to regulate, control, supervise, develop and improve the Madrasha education to the exclusion of the Ministry of Education and as such the order impugned in the writ petition is without lawful authority. He further submits that the order withdrawing the monthly pay order of the said Madrasa is illegal, arbitrary and whimsical inasmuch as the inspection report which was relied on while passing such order did not even recommend for such withdrawal of the Monthly Pay Order, rather it recommended for its continuation.

9. Careful examination of the relevant law and the fact obtaining in the case shows that the Ministry of Education acted contrary to law and against the principles of natural justice inasmuch as the order impugned in the writ petition canceling the recognition of the Madrasa not only contravenes section 3(1) and 17 (2) (b) of the Madrasa Education Ordinance, 1978 but also offends the principle of natural justice in canceling the recognition of the Madrasa as no prior notice was issued calling upon the concerned Madrasa authority to explain their position. We therefore find the impugned judgment to have been passed in accordance with law.

The appeal is accordingly dismissed without any order as to costs.

Ed.

Secretary, Ministry of Energy and Mineral Resource, Government of Bangladesh Vs. Q.C. Petroleum Ltd. and others, V ADC (2008) 205

Case No: Civil Appeal No.125 of 2000

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Mr. Mvi. Md. Wahidullah,,

Citation: V ADC (2008) 205

Case Year: 2008

Appellant: Government of Bangladesh

Respondent: Q.C. Petroleum Ltd.

Subject: Business and Commercial Law,

Delivery Date: 2007-10-2

Secretary, Ministry of Energy and Mineral Resource, Government of Bangladesh Vs. Q.C. Petroleum Ltd. and others, V ADC (2008) 205

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Amen J

Secretary, Ministry of Energy and Mineral Resources, Government of Bangladesh, Bangladesh Secretariat, Dhaka and others
……........Appellants
Vs.
Q.C. Petroleum Limited and others
................Respondents

Judgment
October 2, 2007.

The Bangladesh Petroleum Act, 1974
Section 2, 4, 4(2)
The High court Division took the view that there was no legal basis for stopping the discharge of the cargo in question on the plea of non-production of “No Objection Letter” from the said Ministry of Bangladesh Petroleum Corporation. The High Court division found no substance in the contention of the learned Attorney General that a ‘petroleum agent’ as envisaged in section 4 of the Bangladesh Petroleum act, 1974 is a pre-condition for import of petroleum after interpreting the provisions of sections 2 and 4 of the said act….. (4)

Lawyers Involved:
Salah Uddin Mahmud, Additional Attorney General, instructed by ASM Khalequzzaman, Advocate-on-Record-For the appellants.
Mvi. Md. Wahidullah, Advocate-on-Record-For Respondent Nos. 1 & 2.
Tonjib-ul-Alam, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 3.
A.S.M. Khalequzzaman, Advocate-on- Record-For Respondent No. 5.
Not Represented- For Respondent No. 4.

Civil Appeal No.125 of 2000
(From the judgment and order dated 1.3.1994 passed by the High Court Division in Writ Petition No.279 of 1994).

JUDGMENT

Md. Joynul Abedin J.

1. This appeal by leave arises out of the judgment and order dated 1.3.1994 passed by a Division Bench of the High Court Division in Writ Petition No. 279 of 1994 making the rule absolute.

2. Respondent as writ petitioners filed the aforesaid writ petition challenging Memo No. 357/AP/GROUP-10/93-94/10762-CUS dated 5.1.1994 issued on behalf of the Collector of Customs in pursuance of Memo No. 7(1) CUSTOM-1/19/09 dated 5.1.1994 issued by the National Board of Revenue refusing to discharge their consignment of High Speed Diesel till production of no objection letter issued either by the Energy and Mineral Resources Division or by the Bangladesh Petroleum Corporation. Their case, in short, is that in pursuance of the import policy announced by the Government they imported 16,315,565 metric tons of High Speed Diesel from Singapore. The said consignment arrived at the Chittagong port on 28.12.1993 and duties were assessed by the Customs authority on submission of the bills of entry and other import documents Part of the assessed duty was paid on 1.1.1994. But the discharge of the said consignment was refused by the customs till no objection letter for such discharge was obtained and produced from the above authority. Their further case is that restriction on import of petroleum was withdrawn in the Import Policy Orders 1991-1993 and 1993-1995 and the petroleum products were placed in the free list after it was withdrawn from the control list. So there was no restriction for import of the High Speed Diesel by the respondent Nos.1 and 2. The respondents therefore imported the said consignment on prior intimation to the government and on observance of all necessary formalities in this regard and the relevant Ministry did not raise any objection. Due to the unreasonable and illegal order of the aforesaid authorities discharge of the said consignment is being held up and the vessel in question is incurring demurrage.

3. The Ministry of Energy and Mineral Resources and the Bangladesh Petroleum Corporation contested the rule issued in the writ petition mainly relying on the provision of section 4 of the Bangladesh Petroleum Act, 1974 asserting that the writ petitioners were debarred from importing the said consignment without entering into any petroleum agreement with the Government as envisaged under section 4(2) of the said Act inasmuch as, according to them, the expression "Petroleum Operation" in section 4(2) also includes importation of Petroleum Product.

4. The High Court Division took the view that there was no legal basis for stopping the discharge of the cargo in question on the plea of non-production of "No Objection Letter" from the said Ministry of Bangladesh Petroleum Corporation. The High Court Division found no substance in the contention of the learned Attorney General that a 'petroleum agreement' as envisaged in section 4 of the Bangladesh Petroleum Act, 1974 is a precondition for import of petroleum after interpreting the provisions of sections 2 and 4 of the said Act.

5. Leave was granted to consider the submission that 'petroleum operation1 has been defined in clause (e) of section 2 of the Bangladesh Petroleum Act 1974 but the High Court Division failed to properly interpret the said provision overlooking the word "or" before the words 'marketing of petroleum' in the said provision and by misconstruction the provision of section 4(2) of the Act arrived at the wrong conclusion that 'import of petroleum does not come within the purview of petroleum operation' and as such there is no question of entering into a petroleum agreement with the Government of import of any petroleum product when such import is for the purpose of marketing and further submission that High Court Division failed to notice and consider that import policy being delegated legislation cannot override the provision of the Act and also the next submission that if the wrong interpretation give by the High Court Division remains then it may create complications in the future and as such leave should be granted.

6. Mr. Salah Uddin Mahmud, the learned Additional Attorney-General reiterates the same submissions adding that relevant provisions of law should be interpreted to enable the relevant authority in the Government to retain control over the petroleum product not only during its exploration, development, exploitation, production, processing, refining or marketing but also in its importation. Further, according to him, such interpretation would also absolve the Government from being liable for any demurrage claim by the respondents.

7. The question that calls for determination whether the import of the consignment in question as well as its clearance by the customs on payment of necessary duties turns on the interpretation of section 4 as well as section 2(e) of the Bangladesh Petroleum Act, 1974. In other words, whether respondents were as required in law to have a prior petroleum agreement with the concerned authority for importation of the consignment in question. We have carefully considered the impugned judgment and have noted that the High Court Division has arrived at a correct decision on a sound principle of law relating to interpretation of statute that section 4 read with section 2(e) of the said Act, 1974 did not require of any petroleum agreement to be entered into and made with the Government of the Bangladesh Petroleum Corporation by any importer at the time of importation of the consignment in question, namely High Speed Diesel. The expression “Petroleum Operation" as found in section 4(2) and defined in section 2(e) of the said Act, 1974 has not stipulated for any kind of petroleum agreement with the Government of the Bangladesh Petroleum Corporation as a pre-condition to importing such Petroleum Product. But such agreement is required to be in place at the time and in course of exploration, extraction of the Petroleum Product, its development, exploitation, production, refining, processing or marketing. In other words, once the Petroleum product is found inside the country on import at the instance of any one except the Government or the Bangladesh Petroleum Corporation, Petroleum agreement is a condition precedent to dealing with such product. In the absence of any restriction imposed either in the Imports and Exports Control Act or in the Import Policy Order, the Customs or the National Board of Revenue would not be competent to refuse clearance of any imported high speed diesel. In the circumstances, the Customs as well as the National Board of Revenue acted without any lawful authority in passing the orders impugned in the writ petition refusing to discharge the consignment in question.

8. The appeal is accordingly dismissed without any order as to costs.

Ed.

Secretary, Ministry of Environment & Forest, Bangladesh Vs. Shaha Md. Nurul Islam

Case No: Civil Appeal No. 109 of 1999

Judge: Mahmudul Amin Choudhury ,

Court: Appellate Division ,,

Advocate: Mr. Abdur Razzaque Khan,Sharifuddin Chaklader,,

Citation: 1 ADC (2004) 139

Case Year: 2004

Appellant: Secretary, Ministry of Environment & Forest, Bangladesh

Respondent: Shaha Md. Nurul Islam

Subject: Administrative Law,

Delivery Date: 2002-4-23

Secretary, Ministry of Environment & Forest, Bangladesh

Vs.

Shaha Md. Nurul Islam, 2002,

1 ADC (2004) 139

Supreme Court
Appellate Division
(Civil)

Present:
Mahmudul Amin Choudhury J
Md. Ruhul Amin J
KM Hasan J

The Secretary, Ministry of Environment and Forest, Bangladesh Secretariat, Dhaka and another........................Appellants

Vs.

Shaha Md. Nurul Islam..........Respondent

Judgment
April 23, 2002.

Constitution of Bangladesh, 1972
Article 102 (1)

We have gone through the writ petition particularly the prayer portion. The respondent prayed for a declaration that the impugned order/super cession dated 18.12.1994 passed by the Ministry of Environment and Forest should be declared to have been passed without lawful authority and also prayed for considering the seniority of the petitioner while promoting officers to the posts of Deputy Conservator of Forests. The prayer portion indicate that the writ petition is in respect of terms and conditions of service. We have considered the submissions of the learned Advocate and also the facts and circumstances of the case and the decisions of this Division and we are of the view that the writ petition as filed is not maintainable.

Cases Referred To-
Junnur Rahman vs. Bangladesh Shilpa Rin Sangstha (BSRS) and others, 51 DLR (AD) 166; Delwar Hossain Mia (Md) and another Vs. Bangladesh, represented by the Secretary, Ministry of Home Affairs and others, 52 DLR (AD) 120; Mujibur Rahman (Md) Vs. Government of Bangladesh and others, 44 DLR (AD) 111.

Lawyers Involved:
Abdur Razzaque Khan, Additional Attorney General (Faisal Hossain Khan, Assistant Attorney General with him) instructed by B. Hossain, Advocate-on-Record-For Appellants.
Sharifuddin Chaklader, Advocate-on-Record-For Respondent.

Civil Appeal No. 109 of 1999.
(From the Judgment and order dated 18.2.1997 passed by the High Court Division in Writ Petition No. 689 of 1995).

Judgment:
                 Mahmudul Amin Choudhury CJ. - This appeal by leave is against judgment and order dated 18.2.1997 passed by a Division Bench of the High Court Division in Writ Petition No. 689 of 1995 making the Rule Absolute.

2. The short fact leading to this petition is that the Writ petitioner respondent moved the High Court Division alleging that he was a Class-1 Gazetted officer under the Ministry of Defence and was appointed as Director, National Cadet Corps in 1980 and thereafter that post was abolished and as a surplus personnel he was absorbed in the Ministry of Establishment and at their order worked in different Ministries as Section Officer. He was permanently absorbed in the Ministry of Agriculture on 27.2.1986. In the meantime the writ petitioner passed different examinations as required under the departmental rules and was then posted at the Environment and Forest Ministry. Thereafter the writ petitioner respondent was appointed to act as Sub-Divisional Forest Officer. A gradation list was prepared and his position was numbered as 107 but he claimed that his position would be above 103 officers. Ultimately a list was prepared for promoting 12 officers in which the name of the petitioner did not find place. He made several representations but without success and when a notification was issued giving promotion to 12 officers junior to him the respondent moved the High Court division in Writ Petition No.689 of 1995 challenging order dated 18.12.1994.

3. Before the High Court Division the present appellant entered appearance and filed affidavit-in-opposition and their case is that the appointment of the respondent was irregular and he was illegally absorbed in the year 1986. Their further case is that as his absorption was irregular the writ petitioner ought not to have been kept in the cadre in the Ministry of Environment and without consulting the Public Service Commission the Writ petitioner was absorbed in the Ministry of Establishment and as such his case should not be considered. It has also been alleged that the writ petitioner was absorbed violating the provision of Surplus Public Servant Absorption Ordinance, 1985. Their objection is that as the writ petitioner has challenged his seniority in the service which is in respect of terms and conditions of his service he ought to have moved the Administrative Tribunal and not the High Court Division in writ jurisdiction.

4. The High Court Division on consideration of the materials on record made the Rule Absolute Leave was granted to consider the following:-
                      "Mr. B. Hossain learned Deputy Attorney General appearing for government of Bangladesh petitioner submits that the writ petitioner respondent being a member in the service of the Republic he should have filed the case before the Administrative Tribunal which was the appropriate forum the writ petition filed by him not being maintainable the judges of the High Court Division erred in law in making the rule absolute when the Administrative Tribunal has the jurisdiction to examine the constitutionality of the impugned notification.
                     He next submits that the High Court Division erred in law in making the Rule absolute inasmuch as the writ petition was not maintainable for not imp leading the officers who have been affected by declaring their promotion over him as illegal."

5. Mr. Abdur Razzaque Khan, learned Additional, Attorney General at the very outset submits that as the case of the respondent is on the condition of his service he ought to have moved the administrative Tribunal. He submits that after establishment of the Administrative Tribunal under Article 117 of the constitution the High Court Division lost its jurisdiction over the matters relating to the service conditions of an individual who is in the service of the Republic. It is submitted that when in the present case the writ petitioner respondent has sought a declaration that he is senior to 12 other officers of the department and is entitled to get a promotion the writ petition as filed is not maintainable. The respondent ought to have moved the Tribunal. Mr. Khan after placing the writ petition submitted that the Writ petitioner respondent only challenged a notification issued by the department proposing to promote some 12 officers who are allegedly junior to him. Mr. Khan submits that the finding of the High Court division as regards protection of the petitioner's fundamental right as enshrined in the constitution has no leg to stand upon in view of the arguments made in the writ petition. Relying in the decision in the case of Junnur Rahman vs. Bangladesh shilpa Rin Sangstha (BSRS) and others reported in 51 DLR (AD) 166. Mr. Khan submits that the judgment of the High Court Division cannot be maintained. Mr. Khan also submits that a person in the service of the Republic who intends to invoke fundamental right for challenging the virus of law may seek his remedy under Article 102 (1) of the Constitution but in all other cases he is required to seek remedy under Article 117 (2) of the Constitution. Mr. Khan submits that in the present writ petition virus of laws has not been challenged by the writ petitioner and as such the writ petition is not maintainable. Mr. Khan in support of his submission placed reliance in the case of Delwar Hossain Mia (Md) and another Vs. Bangladesh, represented by the Secretary, Ministry of Home Affairs and others reported in 52 DLR (AD) 120. Mr. Khan submits that the same view has also been expressed by this Division earlier in the cases of Mujibur Rahman (Md) Vs. Government of Bangladesh and others reported in 44 DLR (AD) 111.
                Mr. Khan submits that the consistent view of this Division in such matters is that a person in the service of the Republic cannot maintain a writ petition when he challenged the terms and conditions of his service and here in the present case the respondent challenged promotion of 12 officers who are allegedly junior to him and prayed for direction to treat him senior to those officers. It is definitely in respect of alleged violation of the terms and conditions of service and such matters are in the domain of Administrative Tribunal. Mr. Khan submits that the High Court Division failed to consider this aspect of the matter and wrongly entertained the writ petition and made the Rule absolute which require interference.

6. In view of the submissions made by the learned Additional Attorney General and in view of the consistent decisions of this Division in the aforesaid cases and in view of the averments made in the writ petition Mr. Sharifuddin Chaklader, Advocate-on-Record appearing on behalf of the respondent found difficulty in supporting the judgment of the High Court Division.

7. We have gone through the writ petition particularly the prayer portion. The respondent prayed for a declaration that the impugned order/super cession dated 18.12.1994 passed by the Ministry of Environment and Forest should be declared to have been passed without lawful authority and also prayed for considering the seniority of the petitioner while promoting officers to the posts of Deputy Conservator of Forests. The prayer portion indicate that the writ petition is in respect of terms and conditions of service, we have considered the submissions of the learned Advocate and also the facts and circumstances of the case and the decisions of this Division and we are of the view that the writ petition as filed is not maintainable. In such circumstances the High Court Division committed illegality in making the Rule absolute. In view of the consistent decisions of this Division such matters we are inclined to allow the appeal. As we have already found that the writ petition as filed is not maintainable we are not inclined to enter into other aspects of the matter.

8. The appeal is accordingly allowed without cost. The impugned judgment and order passed by the High Court Division in the aforesaid writ petition is hereby set aside and the writ petition is dismissed as not maintainable.

Ed.

Secretary, Ministry of Establishment Vs. A M Nurunnabi

Case No: Civil Petition for Leave to Appeal No.776 of 2000

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Mahmudul Islam,Abdul Wadud Bhuiyan,,

Citation: 53 DLR (AD) (2001) 41

Case Year: 2001

Appellant: Secretary, Ministry of Establishment

Respondent: A M Nurunnabi

Subject: Administrative Law,

Delivery Date: 2001-2-27

Secretary, Ministry of Establishment

Vs.

A M Nurunnabi, 2001,

53 DLR (AD) (2001) 41

Supreme Court
Appellate Division
(Civil)

Present:
Latifur Rahman CJ
Mahmudul Amin Choudhury J
Md. Gholam Rabbani J
Md. Ruhul Amin J

Secretary, Ministry of Establishment.................................. Petitioner

Vs.

A M Nurunnabi....................................Respondent*

Judgment
February 27, 2001.

Bangladesh Service Rules, Part I,
Rule 72(b)
The review forum having found the respondent honourably acquitted, the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances………………………(7)

Lawyers Involved:
Mahmudul Islam, Attorney-General, instructed by Sufia Khatun, Advocate-on- Record — For the Petitioner
Abdul Wadud Bhuiyan, Advocate, instructed by Fokrul Islam, Advocate-on-Record — For the Respondent.

Civil Petition for Leave to Appeal No.776 of 2000.
(From the Judgment and order dated 31-5-2000 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.83 of 1998).

Judgment:
Latifur Rahman CJ.- This civil petition for leave to appeal by the Secretary, Ministry of Establishment, Government of Bangladesh is directed against the judgment and order dated 31-5-2000 passed by the Administrative Appellate Tribunal in Administrative Appeal No.83 of 1998 affirming the judgment and order dated 16-8-1998 passed by the Administrative Tribunal in Tribunal Case No.51 of 1997.

2. The respondent instituted the case for a declaration that the notification dated 6-6-1996 passed by the Government is void, illegal and without lawful authority and that the period of absence from service of the respondent from 1-10-82 to 5-6-96 shall be treated as spent on duty and he is entitled to all arrear pay and other allowances. The case of the respondent-applicant is that while he was serving as Deputy Secretary, Ministry of Food he received a letter dated 27-8-82 signed by an Assistant Inspector General of Police intimating him that he had been retired from service under Martial Law Order No. 9 of 1982 by the CMLA (Chief Martial Law Administrator) with effect from 1-10-1982. The respondent submitted representations to different authorities but with no effect. Lastly he filed an application to the CMLA as per paragraph 1A of MLO No. 9 of 1982 to review the order of retirement but no final order was issued by the CMLA till withdrawal on 10-11-1986. As the review petition was not disposed of the respondent was compelled to file Writ Petition No.1282 of 1989 for a direction upon the Government for disposal of the review application of the respondent. The writ petition was allowed and the court directed the Government to dispose of the review petition. Accordingly, the Government set up a review forum who found the allegations against the respondent as stated in the charge-sheet was baseless and submitted a report for recommendation with reinstating the respondent in service. Even thereafter the respondent was not reinstated in the service. But Government issued a letter dated 16-1-1994 which was again challenged by the respondent before the High Court Division by filing another Writ Petition No. 450 of 1994. The said Rule was made absolute on 15-1-1996 and a direction was issued upon the Government to implement the recommendation of the review forum within two months of the date of the receipt of the order. The petitioner being aggrieved filed civil petition for leave to appeal No.184 of 1996 which was summarily rejected by this Division on 9-5-1996. Consequently, the respondent was reinstated in the service on 6-6-1996 canceling his earlier order of retirement dated 27-8-1982 and treating the period of absence from service as extra-ordinary leave without pay under rule 72(b) of Bangladesh Service Rules, Part- 1. The petitioner thereafter filed the case before the Administrative Appellate Tribunal, Dhaka.

3. The present petitioner contested the case by filing a written statement stating, inter alia, that as the petitioner was not in service he would not get the pay and allowances but his seniority in this service would not be affected and that no illegality was committed for treating the period of absence as leave without pay and allowances. The case is liable to be dismissed.

4. Mr. Mahmudul Islam learned Attorney-General appearing for the petitioner-Secretary, Ministry of Establishment submits that the respondent is not entitled to arrear pay and allowances from 1-10-1982 to 5-6-96 as there is nothing on record to show as to whether he was gainfully employed during this long period and in the absence of this finding both the tribunals below acted illegally in allowing the respondent’s pay and allowances.

5. It appears from the judgment of the Administrative Appellate Tribunal that the respondent was honorably acquitted by the review forum after finding that the charges were baseless and groundless and recommended for his reinstatement in the service. The review forum further observed that the respondent has been honorably acquitted from the charges and, as such, he is entitled to pay and allowances for the period of absence from his service as per Note-4 of rule 72 of BSR Part-1. A reference to Note-4 of rule 72 shows that “the period of absence of Government servant on reinstatement in service after wrongful retirement shall be treated as a period spent on duty and he will be entitled to pay and allowances as admissible under clause (a) of this rule.” Clause (a) of rule 72 speaks that in case of honorable acquittal the incumbent is entitled to full pay to which he should have been entitled if he had not been dismissed or removed or suspended. In that view of the matter the Administrative Appellate Tribunal rightly held that the respondent is entitled to the arrear pay and allowances.

6. In this application before the Tribunal the respondent prayed for arrear pay and allowances from 1-1-10-1981 to 5-6-96. In reply to this, the petitioner while filing the written objection did not raise any issue as to the fact that the respondent was working somewhere or he was engaged gainfully in some profession or business for which he is not entitled to the arrear pay and allowances. There is nothing on record in respect of the submission. It is difficult for this Court to enter into this matter.

7. Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the respondent, on the other hand, shows from gazette notifications that some Government officers who were removed under MLO No. 9 of 1982 having been reinstated were given full arrear pay and allowances. Be that as it may, the review forum having found the respondent honorably acquitted the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances.

The delay is condoned but there being no merit in the petition the same is dismissed.

Ed.

Secretary, Ministry of Fisheries Vs. Abdur Razzak & ors

Case No: CIVIL APPEAL NO. 460 OF 2017

Judge: Hasan Foez Siddique, J.

Court: Appellate Division ,

Advocate: Mr. Mahbubey Alam, Attorney General, with Mr. Biswajit Debnath, D.A.G & Mr. Samarandra Nath Biswas, D.A.G, instructed by Ms. Mahmuda Begum, Advocate-on-Record. ,

Citation: 2019(2) LNJ (AD)

Case Year: 2019

Appellant: The Secretary, Ministry of Fisheries and Livestock & others:

Respondent: Abdur Razzak and others

Subject: Evidence Act

Delivery Date: 2020-03-15

APPELLATE DIVISION

(CIVIL)

Syed Mahmud Hossain, C,J. Muhammad Imman Ali, J

Hasan Foez Siddique, J,

Mirza Hussain Haider, J

Zinat Ara, J

Abu Bakar Siddiquee, J,

Md. Nuruzzaman, J

Judgment on

02.07.2019

}

The Secretary, Ministry of Fisheries and Livestock & others:

. . . Appellant.

(In C. A. No. 460/17)

The Secretary, Ministry of Fisheries and Livestock & others

. . . Petitioners

(In C.R.P.No.181/18)

-Versus-

Abdur Razzak and others

. . . Respondents

(In C. A. No. 460/17)

Ashraf-Uz-Zaman others

. . . Respondents.

(In C.R.P. No. 181/18)

Evidence Act (I of 1872)

Section 115

Estoppel Explained—The basic principle is that the plea of estoppel cannot be raised to defeat the provisions of statute. The rule of promissory estoppel cannot be invoked for the enforcement of a promise which is contrary to law or outside the authority of the persons making the promise. Such principle cannot be used or invoked to compel the Government or public authority to act contrary to law or against a statute. There is no estoppel against law and at any rate the abstention of the Government in absorbing the writ petitioners in the revenue budget does not attract the law of estoppel. The Court will refuse to invoke the principles of promissory estoppel/equitable estoppel since there are specific laws providing the procedures of appointment in the posts for which the writ petitioners were seeking absorption. Such doctrine cannot be allowed to operate so as to override the clear words of statute. . . .(47)

Constitution of Bangladesh, 1972

Article 102

Legitimate Expectation—An expectation, fulfillment of which requires that a decision-maker should take an unlawful decision cannot be said to a legitimate expectation.

. . . (58)

Constitution of Bangladesh 1972

Article 102

The doctrine of legitimate expectation can neither preclude legislation nor invalidate a statute enacted by the competent legislature. The theory of legitimate expectation cannot defeat or invalidate a legislation which is otherwise valid and constitutional. Legitimate expectations must be consistent with statutory provisions. The doctrine can be invoked only if it is founded on the sanction of law. Clear statutory words override any expectation, however well-founded. It is open to the Government to frame, reframe, change or recharge its policy. If the policy is changed by the Government and the Court do not find the action malafide or otherwise unreasonable, the doctrine of legitimate expectation does not make the decision vulnerable. The choice of policy is for the decision maker and not for the Court. When a person enters a temporary employment or gets engagement as a contractual employee and such engagement is not based on legally approved selection process as recognized by the rules or procedure, he is aware of the consequences of the appointment being temporary or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being regularized in the post when an appointment to the post could be made only by following the legally approved procedure for selection provided in the Rules quoted earlier. Since the recommendation of Public Service Commission is statutory requirement, before regularization of service, such recommendation must be accorded.

. . . (56, 57 and 65)

Constitution of Bangladesh 1972

Article 102

Regularization cannot be claimed as a matter of right. Recruitment should be made according to valid procedure—

Policy decision once taken should apply equaly and uniformly. Simultaneously, it is to be remembered that absorption of project employees, who obtained employment by taking recourse to back door method, is violative of the constitutional scheme as the appointments have to be made on merits of the candidates. Finally, such absorption and thereafter, regularization must be processed and done following the Government instructions as well as the statutory provisions as mentioned earlier. . . . (69)

Constitution Bangladesh 1972

Article 102

No court can direct the Government or its instrumentalities to regularize the service of the officers and employees of the development project in the revenue budget in the cases where statutory requirements have not been fulfilled. Regularization cannot be claimed as a matter of right. It is statutory requirement that opportunity shall be given to eligible persons by public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the Government. When the High Court Division is approached for relief by filing writ petition, necessarily the High Court Division has to ask itself whether the person before it had any legal right to be enforced or not. It can not be directed to devise a third mode of selection.

Accordingly, it is observed that:

1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation cannot be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.

2. While transferring any development project and its manpower to revenue budget the provisions provided in the notifications, government orders and circulars quoted earlier must be followed. However, it is to be remembered that executive power can be exercised only to fill in the gaps and the same cannot and should not supplant the law, but only supplement the law.

3. Before regularization of service of the officers and employees of the development project in the revenue budget the provisions of applicable “Bidhimala” must be complied with. Without exhausting the applicable provisions of the “Bidhimala” as quoted above no one is entitled to be regularised in the service of revenue budget since those are statutory provisions.

4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complication. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.

5. A mandamus cannot be issued in favour of the employees directing the government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.

6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.

7. Opportunity shall be given to eligible persons by inviting applications through public notification and appointment should be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.

8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme.

In view of the discussion made above and since it is not apparent from the judgment of the High Court Division and other materials available in the record that the procedure provided in the Government notification, circulars or orders and the process of appointment indicated in the “Bidhimalas” 1995 or 2005 have been followed duly for appointing the writ petitioners and that they are no longer in service in view of terms of appointment letters and contracts, the direction of the High Court Division to absorb/regularise their service giving continuity of the same can not be approved. So, the same is set aside. . . . (69 to 72)

State of Karnataka Vs. Umadevi, (2006) 4 SCC page 1; Union of India and others Vs. Hindustan Development Corporation and others, (1993) 4 SCC 433; Punjab Communications Ltd. Vs. Union of India, (1994) 4SCC 727; Dr. Chanchal Goyal (Mrs.) Vs. State of Rajasthan, [2003 (3) SCC 485]; State of Karnataka Vs. Umadevi (supra); Ram Pravesh Singh Vs. State of Bihar, [2006 (8) SCC 381]; Union of India V. P.K. Choudhury, AIR 2016 SC 966; Attorney General of Hongkong Ng Yuen Shiv, (1983) 2 Ac 629; R.V. Secretary of State for Home Dept., (1987) 1 WLR 1482; Lord Diplock in Hughes Vs. Department of Health & Security, (1985) 2 WLR 866; Administrative Law, (2005) p.p 376; Government of Bangladesh, represented by the Secretary, Ministry of Labour and Manpower and others Vs. Mohammad Anisur Rahman and others, 18 MLR (AD) page 372 and Municipal Council Vs. T.J. Joseph, AIR 1962 SC 922 ref.

: Mr. Mahbubey Alam, Attorney General, with Mr. Biswajit Debnath, D.A.G & Mr. Samarandra Nath Biswas, D.A.G, instructed by Ms. Mahmuda Begum, Advocate-on-Record.

: Mr. Rokanuddin Mahmud, Senior Advocate ,with Mr. N.K. Saha, Senior Advocate instructed by Ms. Madhumalati Chowdhury Barua, Advocate-on-Record.

: Mr. Probir Neogi, Senior Advocate instructed by Ms. Madhumalati Chowdhury Barua, Advocate-on-Record.

JUDGMENT

Hasan Foez Siddique, J: Civil Appeal No.460 of 2017 has arisen out of the judgment and order dated 07.09.2016 passed by the High Court Division in Writ Petition No.7166 of 2015. Civil Review Petition No.181 of 2018 has arisen out of the order dated 21.08.2017 passed by this Division in Civil Petition for Leave to Appeal (CPLA) No.1790 of 2017. The civil appeal as well as the review petition originate from the impugned judgment and order passed by the High Court Division in Writ Petition No.7166 of 2015 and so, both the matters have been heard together and are being disposed of by this common judgment.

2. The respondents of Civil Appeal No.460 of 2017 and Civil Review Petition No.181 of 2018, as writ petitioners, filed Writ Petition No.7166 of 2015 in the High Court Division stating, inter alia, that the writ petitioners were appointed in the “Small Scale Dairy and Poultry Farmers Support Services in 22 Selected Districts Project” (herein after referred to as the Project) in 5 different categories of posts and on different dates under the Ministry of Fisheries and Livestock (shortly, the Ministry) through written and viva-voce examinations. Writ Petitioner Nos.1-13 have been working as Veterinary Surgeons, Writ Petitioner Nos.14-21 have been working as Scientific Officers, Writ Petitioner Nos.22-26 have been working as Animal Production Officers, Writ Petitioner Nos.27-40 have been working as Veterinary Compounders and Writ Petitioner Nos.41-46 have been working as Laboratory Technicians.

3. The first phase of the Project had started on 01.01.2010 and ended on 30.06.2013. Thereafter, it was extended for 1 year up to 30.06.2014 and then it was extended for further 1 year till 30.06.2015. Even after completion of the Project, the writ petitioners are still serving in their respective posts. According to the Project proposal (shortly, the PP), the writ-petitioners were supposed to be transferred to the revenue budget inasmuch as the PP contained that after completion of the Project, the assets and manpower would be transferred to the revenue budget. Clause 4.3(M) of the decision of the Executive Committee of National Economic Council (ECNEC) dated 31.12.2007, was amended and it was circulated by the Planning Division vide Memo No. f¢h/HeC¢p-H‡eL/pjeÄu-2/26/2007/3 dated 10.01.2008, wherein it has been stated that “pj¡ç fËL‡íi Sehm ¢hcÉj¡e ¢h¢d ¢hd¡e Ae¤plef§hÑL â²a l¡Sü h¡‡SV Øq¡e¡šÍ‡ii hÉhØq¡ Ll‡Z n‡e|” The Prime Minister also gave her consent to transfer the manpower to the revenue budget from completed projects started after July, 1997.

4. The Director General, Department of Livestock, wrote a letter being Memo No. Hm Hp/¢fC¢p-65(1j LÛ)/2014/536 dated 30.11.2014 (Memo dated 30.11.2014) to the Project Director of the Project informing that a resolution was taken on 09.11.2014 with a view to transferring the manpower for the completed project to the revenue set up. The Project Director was also asked to submit a proposal in the Form as prescribed. In response of the letter dated 30.11.2014, the Project Director submitted a proposal vide Memo No. SDPFSP/l¡Sü M¡a/2014/708 dated 11.12.2014 (shortly, Memo dated 11.12.2014). After getting the said proposal, the Director General, Department of Livestock sent a letter vide Memo No. n¡M¡-1/6H 768/2014/2372 dated 28.12.2014 to the Secretary of the Ministry with recommendation to transfer the manpower of the Project to the revenue set up. The Ministry thereafter sent a complete proposal vide Memo No. 33|01|0000|120|15|04|15-17 dated 04.02.2015 (shortly, Memo dated 04.02.2015) to the Secretary, Ministry of Establishment in order to create 77 posts of 5 categories in revenue budget on a temporary basis. The Ministry of Establishment then wrote a letter under Memo No. 05|02|0002|15|157|008|15-77 dated 22.03.2015 to the Secretary of the Ministry of Fisheries and Livestock requesting him not to apply separately for the Project rather to apply in combination with the organogram of the Ministry. The Director General, Department of Livestock sent another proposal vide Memo No. 33|01|00000| 001|15|786|15-1111 dated 24.05.2015 to the Secretary of the Ministry in accordance with the check list as provided by the Ministry of Establishment. Thereafter, in the meeting of steering Committee held on 01.01.2015 it was decided that in order to continue the Project and also to extend activity of the Project in other areas a new project proposal would be launched. An inter-ministerial meeting was held on 29.01.2015 and it was decided that after completion of the Project, the same would be expanded to more areas. After completion of the various development projects under the Ministry, the assets as well as the manpower have been transferred/ absorbed in the revenue budget on 24.05.2004, 27.03.2007, 10.04.2011 and 08.10.2013 but the petitioners were not absorbed in the revenue budget.

5. In the above circumstances, the writ-petitioners filed the above mentioned Writ Petition for a direction upon the writ respondents for transferring/regularising/absorbing their service in the revenue budget and obtained a rule.

6. Respondent No.1, the Secretary, Ministry of Fisheries and Livestock contested the Rule by filing an affidavit-in-opposition, contending, inter alia, that the petitioners were appointed in the Project under the Ministry with consolidated pay temporarily for the Project period only on contractual basis. The Project started in 2010 and ended in 2015. Therefore, the writ petitioners are not entitled to be absorbed in the revenue budget. The Ministry and the Department of Livestock have taken a decision for starting a new project and duration of the said project would be up to 30^th June, 2020 and the writ petitioners would be given preference for recruitment in the said new project and the age limit would be relaxed, if necessary and, as such, the Rule should be discharged.

7. Respondent No.2, also contested the Rule by filing an affidavit-in-opposition contending, inter alia, that the Government had never made any promise to absorb the writ petitioners in the revenue budget. The appointment letters of the petitioners clearly contained that their services would be terminated after completion of the Project. The Project had started in 2010 and ended in 2015. Therefore, the writ petitioners cannot claim to be absorbed in the revenue budget and, as such, the writ petitioners have no cause of action to file the Writ Petition. The writ petitioners were appointed in different posts of the Project temporarily with consolidated pay for the Project period only. In order to absorb the employees and officers of development Project, the Government has promulgated Rules namely “Eæue cªKí qC‡a l¡Sü h¡‡S‡V Øq¡e¡¿¹¢la f‡cl fcd¡l£‡cl ¢eu¢jaLlZ J ®~SÉØWa¡ ¢edÑ¡lZ ¢h¢dj¡m¡, 2005”. In rule 2(M)of the said Rules, the projects mean the projects started between 9 April, 1972 and 30^th June, 1997. The Project, where the writ petitioners were working does not fall within the ambit of rule 2(N) of the Rules. The Rules prescribed the guidelines for the transfer of employees and officers of the development projects to revenue set up. The writ petitioners do not fall within the scope of the guidelines given by the Appellate Division in the case reported in 17 BLC (AD) 91. Therefore, the writ petitioners are not at all entitled to be transferred/ absorbed/ regularized in the revenue set up and, as such, the Rule is liable to be discharged.

8. The High Court Division, upon hearing the learned Advocates for the contending parties, disposed of the Rule with the following directions:

“Respondents are directed to regularize/ absorb the petitioners under the revenue budget with continuity of service and other benefits subject to availability of the same/equivalent posts provided that they have requisite qualifications.”

9. In the aforesaid facts and circumstances, the writ-respondents being aggrieved filed CPLA No.1790 of 2017 and leave was granted to consider as to whether the post of Scientific Officers, Veterinary Surgeons and Animal Production Officers could be absorbed in the revenue set up without recommendation of the Public Service Commission as directed by the High Court Division.

10. Civil Review Petition No.181 of 2018 has been filed by the writ respondents for review of the order dated 21.08.2017 passed by this Division in CPLA No.1790 of 2017, so far as it relates to the post of Veterinary Compounder and Laboratory Technicians.

11. Mr. Mahbubey Alam, learned Attorney General appearing for the appellants, submits that the writ petitioners were appointed in the project under the Ministry of Fisheries and Livestock which started in 2010 and ended in 2015 with consolidated payment temporarily for the project period on contract basis, the High Court Division failed to appreciate the facts and circumstances of the case in its true perspective, as a result of which there has been serious miscarriage of justice. He submits that the Ministry has taken decision for a new Project, namely, “Increasing Livestock Productivity through Community Support Service and Facilities the Implementation of Feed Act Project” (hereafter referred to as the New Project) and duration of the New Project is from 01.07.2015 to 30.06.2020 and in the New Project the writ petitioners would be given preference for recruitment. He also submits that the Government had never made any promise to absorb the writ petitioners in the revenue budget and their appointment letters clearly demonstrated that their services would come to an end automatically after completion of the Project and, therefore, the High Court Division erred in law in directing to absorb the writ petitioners in revenue set up. He further submits that in order to absorb the employees and officers of the Development Project, the Government has framed Rules in the name of “Eæue cªKí qC‡a l¡Sü h¡‡S‡V Øq¡e¡¿¹¢la f‡cl fcd¡l£‡cl ¢eu¢jaLlY J ®~SÉØWa¡ ¢edÑ¡lY ¢h¢dj¡m¡, 2005” and in that Rules, Development Project has been specifically defined but the High Court Division without taking into consideration of the said Rules erroneously made the Rules Nisi absolute. He lastly submits that the posts for which the writ petitioner-respondents in the appeal have prayed for absorption are to be appointed following the concerned service rules and there is no scope to regularize their service without following the relevant laws, the High Court Division erred in law in giving the impugned direction and as such the same is liable to be interfered with.

12. The learned Attorney General, appearing for the petitioner in review petition, submits that in the order granting leave this Court most illegally observed that the posts of Veterinary Compounder and Laboratory Technicians are not included in the schedule of the relevant laws although those posts are included in the schedule of the Rules.

13. Mr. Rokanuddin Mahmud, learned Senior Counsel appearing for the respondents in Civil Appeal No.460 of 2017, submits that in the Project Proforma (P.P.) it was categorically mentioned that after completion of the Project the assets and manpower of the Project should be transferred in the revenue budget and on perusal of the said provision in the P.P. and some other subsequent communications the writ petitioners legitimately expected that their service would be absorbed/transferred in the revenue budget, and, thus the High Court Division upon proper appreciation the materials on record made the Rule Nisi absolute. He submits that in identical matters the High Court Division passed similar orders directing to absorb the writ petitioners in the revenue budget and pursuant to the order of the High Court Division, the writ petitioners of the concerned writ petition have already been absorbed in the revenue set up, so there would be discrimination if the present writ petitioners are deprived from absorption and in such view of the matter, the High Court Division rightly passed the impugned direction and the appeal is thus liable to be dismissed.

14. Mr. Probir Neogi, learned Senior Counsel, appearing for the respondents in the review petition, submits that at the time of granting leave this Division refused to grant leave in respect of the review-respondents and that there is no error of law apparent of the face of the record in the order under review so the review petition is liable to be rejected.

15. Admittedly, the first phase of the instant project had started on 01.10.2010 and ended on 30.06.2013. Thereafter, it was extended for a period of one year and, thereafter, again extended for a further period of one year, that is, till 30.06.2015. The writ petitioners filed the instant Writ Petition No.7166 of 2015 with a prayer to get a direction upon the writ respondents to transfer/absorb the writ petitioners in the revenue set up. The High Court Division, by the impugned judgment and order, made direction as quoted earlier.

16. Learned Attorney General drew our attention to the Gazetted Officers’ (Department of Livestock Service) Recruitment Rules, 1984. Rule 3 of the said Rules provides that subject to the provisions of the Schedule and instructions relating to reservation of posts, appointment to a specified post shall be made-

(a) by direct recruitment;

(b) by promotion; or

(c)by transfer on deputation.

17. Sub Rule 2 of Rule 3 provides that no person shall be appointed to a specified post unless he has the requisite qualifications and, in the case of direct recruitment, he is within the age limit, if any, prescribed in the Schedule for that post. Rule 4 provides that no appointment to a specified post by direct recruitment shall be made except upon the recommendation of the Commission. Schedule of the said Rules provides the method of direct recruitment that the recruitment should be made as prescribed in the B.C.S. (Agriculture Livestock) Recruitment Rules, 1984.

18. The non-gazetted employees (Department of Livestock Services) Recruitment Rules, 1985 provides the provisions for recruitment of the Non-gazetted Employees.

19. Rule 3 of the said Rules provides that subject to the provisions of the Schedule and instructions relating to reservation and quota, appointment to

a specified post shall be made-

(a) by direct recruitment, or

(b) by promotion.

20. Sub-rule (2) of Rule 3 provides that no person shall be appointed to a specified post unless he has the requisite qualifications, and in the case of direct recruitment, he is within the age limit, if any, prescribed in the Schedule for that post. Rule 4 provides that no appointment to a specified post by direct recruitment shall be made except upon the recommendation of the Commission.

21. In Bangladesh Civil Service Recruitment Rules, 1981, the provisions and procedure for appointment of officers in the posts for which some of the writ petitioners sought for absorption have specifically been mentioned.

22. Those are the regular and usual statutory provisions for appointment through the Public Service Commission in the posts, for which, the writ petitioners have prayed for absorption.

23. It appears that sometimes the Courts have not kept the legal aspect in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed irregular or improper entrants to be absorbed into service. The Court has also on occasions issued direction which can not said to be consistent with the laws of public employment. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of legally approved procedure established by the relevant laws. However, article 133 of the Constitution does not abridge the power of the executive to act without a law. But, if there is statutory Rule on the matter, the executive must abide by that Rule and it cannot in exercise of executive power ignore or work contrary to that Rule. Sometimes it is found that the process is not adhered to and the constitutional scheme of public employment is bypassed.

24. It is the case of the writ petitioners that since in the P.P. it has been mentioned that after completion of the Project, the assets and manpower of the Project should be transferred in the revenue budget the writ petitioners legitimately expected that their service would be absorbed in the revenue set up.

25. Learned Attorney General produced circular dated 05.11.1991. Ministry of Establishment issued the same mentioning the decision of the Government in respect of transfer of the officers and employees of the development project in the revenue budget. The contents of the said circular run as follows:

ÒMYcªRvZš¿x evsjv‡`k miKvi

ms¯’vcb gš¿Yvjq

kvLv (wewa-1)

cwicÎ

mg/Avi-1/Gm-6/91-308(250), ZvwiL 05-11-1991Bs /20-07-1398 evs|

welqt Dbœqb cªK‡íi c`avix‡K ivR¯e LvZfz³ c‡` Ges ivR¯e LvZfz³ c`avix‡K Dbœqb cªK‡íi c‡` wb‡qvM/‡cvwós/ c‡`vbœwZ cª`vb m¤úwK©Z|

Dc‡iv³ wel‡q MZ 29-5-91Bs Zvwi‡L RvixK…Z mg/Avi-1/Gm-6/91-164(200) bs cwicÎwU (mshy³) evwZjc~e©K Av‡jvP¨ cwicÎwU Rvix Kiv nBj| B`vwbs j¶¨ Kiv hvB‡Z‡Q †h, Dbœqb cªK‡íi c`avix‡K ivR¯e LvZfz³ c‡` Ges ivR¯e LvZfz³ c`avix‡K Dbœqb cªK‡íi c‡` wb‡qvM/‡cvwós/ c‡`vbœwZ cª`vb Kwievi cªeYZv †`Lv w`qv‡Q| GB cªeYZv `~i Kwievi j‡¶¨ miKvi wbg¥i“c wm×vš— MªnY Kwiqv‡Qbt

(K) Dbœqb cªK‡íi c` Ges ivR¯e LvZfz³ c` m¤ú~Y© wfbœ| Df‡qi wb‡qvM †¶‡Î wb‡qvM wewaI wfbœ| Kv‡RB Df‡qi cvi¯úwiK wb‡qvM/‡cvwós/ e`jx/c‡`vbœwZ m¤ú~Y© wewa ewnf~©Z| Dbœqb cªK‡íi PvKzixi †Kvb wbðqZv bvB| Dbœqb cªKí †kl nBqv †M‡j cªK‡í PvKzixiZ‡`i PvKzix nB‡Z Ae¨vnwZ †`Iqv nq| Z‡e Dbœqb cªKí †gqv` †k‡l ivR¯^ LvZf~Ë“ nB‡j †mB‡¶‡Î cªK‡í PvKzixiZMY 9/3/86Bs Zvwi‡Li mg/Avi 1/Gm-8/86-55(100) bs m¥viK ev mg‡q mg‡q miKvi KZ…©K ms‡kvwaZ m¥viK †gvZv‡eK ivR¯^ LvZf~Ë“ c‡` wb‡qv‡Mi Rb¨ KwZcq kZ© mv‡c‡¶ we‡ewPZ nB‡Z cv‡ib| cªavb kZ© GB †h, Zvnv‡`i ivR¯^ LvZf~Ë“ c‡`i wb‡qvMwewai kZ© c~iY Kwiqv Ab¨vb¨ mKj cªv_©xi mwnZ cªwZ‡hvwMZvi gva¨‡g wbe©vPb jvf Kwi‡Z nB‡e| Kv‡RB Dbœqb cªK‡íi c`waKvix †Kvb Ae¯nv‡ZB ivR¯e LvZfz³ c‡` e`jx ev c‡`vbœwZi gva¨‡g wb‡qvM/‡cvwós jvf Kwi‡Z cv‡ib bv|

(L) ivR¯e LvZfz³ †Kvb Kg©KZ©v/Kg©Pvix‡K Dbœqb cªK‡íi wb‡qvMwewai Aax‡b Dbœqb cªK‡íi c‡`i wecix‡Z e`jx, c‡`vbœwZ cª`vb ev c‡`vbœwZ cª`vbc~e©K wb‡qvM/ †cvwós †`Iqv hvB‡e bv|

(M) ivR¯e LvZfz³ †Kvb Kg©KZ©v/ Kg©Pvix‡K ïaygvÎ ¯exq c`gh©v`v I ‡eZb‡¯‹‡jimn Dbœqb cªK‡íi †Kvb c‡` †cªl‡Y wb‡qvM/†cvwós cª`vb Kiv hvB‡e| GB‡¶‡Î †cªl‡Y wb‡qvMjvfKvix Zvnvi †MªW †c A_©vr ivR¯e ev‡RUvaxb c‡` wZwb †h †eZb-fvZvw` cvB‡Zb ZvnvB cvB‡eb|

(N) ivR¯e LvZfz³ †Kvb Kg©KZ©v/Kg©Pvix †¯^”Qvq mivmwi wb‡qv‡Mi mKj AvbyôvwbKZv cvjbc~e©K Dbœqb cªK‡íi mivmwi wb‡qvMjvf Kwi‡Z cvwi‡eb| Z‡e †mB‡¶‡Î Dbœqb cªK‡í †hvM`v‡bi ZvwiL nB‡Z wZwb c~e© c‡` (ivR¯e LvZfz³ c‡`) cªZ¨veZ©‡bi †hvM¨Zv nvivB‡eb| A_©vr Dbœqb cªK‡í †hvM`v‡bi ZvwiL nB‡Z wZwb Dbœqb cªK‡íi Kg©KZ©v/Kg©Pvix wnmv‡e MY¨ nB‡eb|

2| mKj cªkvmwbK gš¿Yvjq/wefvM‡K Zvnvi wbqš¿Yvaxb mKj Awdm/cªwk¶Y cªwZôv‡b welqwU AenwZ Kwiqv Kvh©Kix c`‡¶c MªnY wbwðZ Kwievi Rb¨ Aby‡iva Kiv nBj|

3| Bnv‡Z A_© gš¿Yvj‡qi m¤§wZ iwnqv‡Q|

(‡gvt nvwmbyi ingvb)

mwPe

ms¯nvcb gš¿YvjqÓ

26. Thereafter, Ministry of Establishment on 17.04.2000 issued an office memorandum with the subject heading, “mgvß Dbœqb cªK‡íi ci ivR¯e ev‡R‡U ¯nvbvš—‡ii cª¯—ve msMVb I e¨e¯nvcbv Abywefv‡M †cªiY|” The contents of the said office memorandum run as follows:

ÒMYcªRvZš¿x evsjv‡`k miKvi

ms¯’vcb gš¿Yvjq

msMVb I e¨e¯nvcbv AbywefvM

wUg-4(2)

Awdm ¯gviK

bs-mg/mI e¨/wUg-4(2)Dt cªtwbt-47/97-61, ZvwiLt 4ˆekvL 1407, 17 Gwcªj 2000|

welqt mgvß Dbœqb cªK‡íi ci ivR¯e ev‡R‡U ¯nvbvš—‡ii cª¯—ve msMVb I e¨e¯nvcbv Abywefv‡M †cªiY |

gš¿Yvjq/ wefvM I Z`axb¯’ ms¯nv mg~‡ni mgvß Dbœqb cªK‡íi c`, hvbevnb, Awdm miÄvgvw` ivR¯e ev‡R‡U ¯nvbvš—‡ii cª¯—v‡e cªv_wgKfv‡e ms¯nvcb gš¿Yvj‡qi msMVb I e¨e¯nvcbv Abywefv‡M Ges A_© gš¿Yvj‡qi A_© wefv‡Mi m¤§wZi cª‡qvRb nq| cªKí mgvwßi ci cª¯Zve †cªiY Kiv n‡j G ai‡bi Rbe‡ji †eZb fvZvw` cª`vbmn Ab¨vb¨ bvbvwea RwUjZv †`Lv †`q e‡j cªKí mgvwßi Aš—Z Qq gvm c~‡e© Ab~i“c cª¯Zve ms¯nvcb gš¿Yvj‡q †cªiY Kivi wb‡`©k BwZc~‡e© A_© wefvM †_‡K Rvwi n‡q‡Q| Zv Av‡iv ms‡kvab K‡i miKvi G g‡g© wm×vš— MªnY K‡i‡Q †h, ivR¯e ev‡R‡U ¯nvbvš—i‡hvM¨ c‡`i cª¯Zve cªKí mgvwßi Aš—Z Qq gvm c~‡e© hyMcrfv‡e ms¯nvcb gš¿Yvj‡qi mIe¨ AbywefvM Ges A_© wefv‡Mi Dbœqb Abywefv‡Mi †cªiY Ki‡Z n‡e| wk¶v I ¯^v¯’¨ cªwZôvb m¤úwK©Z cªK‡íi ‡¶‡Î cªKí mgvwßi AbwaK GK ermi wKsev Aš—Z Qq gvm c~‡e© cª¯—ve cvVv‡Z n‡e| cª¯—v‡e ivR¯e ev‡R‡U ¯nvbvš—i‡hvM¨ Rbe‡ji ‡hŠw³KZv, b~¨bZg Rbe‡ji msL¨v Ges cª¯—vweZ mvsMVwbK m¤ú‡K© GKwU we‡k−lYag©x ¯^qsm¤ú~Y© mvi-ms‡¶c _vK‡Z n‡e|

2| D‡j−L¨ †h, eZ©gv‡b Dwj−wLZ cª¯Zve ms¯nvcb gš¿Yvj‡q †cªi‡Yi mgq G gš¿Yvj‡qi 1-2-1987 Zvwi‡Li mg/mI e¨(mgb¡q)-11/87-85(233) msL¨K m¥viK gvidZ cªYxZ QKwU AbymiY Ki‡Z nq| G QKwU AvswkK ms‡kva‡bi cª‡qvRb Abyf~Z nIqvq GKwU ms‡kvwaZ QK cªYqb Kiv n‡q‡Q| ms‡kvwaZ QK msjMœx ÔKÕ i“‡c ms‡hvRb Kiv nj|

3| GLb †_‡K cª_g Aby‡”Q‡` ewY©Z mvi-ms‡¶cmn msjMœ-QK (Q‡Ki cwiwk‡ó ewY©Z mKj ZvwjKvmn) c~iYc~e©K Dwj−wLZ cª¯—ve ms¯nvcb gš¿Yvj‡q †cªi‡Yi Rb¨ Aby‡iva Kiv nj| h_vh_fv‡e †cªwiZ cª¯Zv‡ei Dci ms¯nvcb gš¿Yvj‡qi gZvgZ cª¯Zve cªvwßi GK gv‡mi g‡a¨ cª`vb Kiv n‡e|

(gyn¤§` ûgvqyb Kwei)

Dc-mwPeÓ

27. On 03.05.2003, Cabinet Division issued a Government Order providing principle and procedure regarding creation of temporary post in revenue budget, transfer of the officers and employees from the development project to revenue budget, reservation of post and/or making the same permanent. The contents of the said order run as follows:

Ò MYcªRvZš¿x evsjv‡`k miKvi

gwš¿cwil` wefvM

KwgwU welqK kvLv|

bs-gcwe/Ktwetkvt/KcM-11/2001-111, ZvwiLt03-05-2003 wLªóvã/20-01-1410 e½vã

miKvwi Av‡`k

miKvi wm×vš— MªnY K‡i‡Q †h, ivR¯e Lv‡Z A¯nvqxfv‡e c` m„wó, Dbœqb cªKí †_‡K ivR¯eLv‡Z c` ¯nvbvš—i, c` msi¶Y, c` ¯nvqxKiY BZ¨vw` wel‡q wbg¥i“c bxwZ I c×wZ Abym„Z n‡et

wewfbœ gš¿Yvjq/wefvM/Awa`ßi/cwi`ßi/¯evqËkvwmZ ms¯nv/Aaxb¯’ Awdmmgy‡n ivR¯e Lv‡Z A¯nvqxfv‡e c` m„wó Ges Dbœqb cªKí †_‡K ivR¯e Lv‡Z c` ¯nvbvš—‡ii Rb¨ cªkvmwbK gš¿Yvj‡qi cª¯Zve ms¯nvcb gš¿bvjq I A_© wefvM KZ©„K Aby‡gv`‡bi ci 3 (wZb) eQi ch©š— eQi wfwËK c` msi¶‡Yi ¶gZv wbg¥wjwLZ k‡Z© cªkvmwbK gš¿Yvjq‡K †`qv njt

(K) cªwZ eQi c` msi¶‡Yi †¶‡Î cªkvmwbK gš¿Yvjq msi¶‡bi †hŠw³KZv h_vh_fv‡e hvPvB Ki‡e;

(L) cªkvmwbK gš¿Yvjq †Kvb c‡`i c`bvg I †eZb‡¯Kj cwieZ©b Ki‡Z cvi‡e bv| c`bvg I †eZb‡¯‹j cwieZ©b Ki‡Z n‡j ms¯nvcb gš¿Yvjq I A_© wefv‡Mi m¤§wZ Mªnb Ki‡Z n‡e;

(M) †Kvb c` GK bvMv‡o 02 (`yB ) eQi k~b¨ _vK‡j ms¯nvcb gš¿Yvjq I A_© wefv‡Mi Aby‡gv`b Qvov msi¶Y Kiv hv‡e bv;

(N)cªkvmwbK gš¿Yvjq KZ©„K RvwiK…Z c` msi¶‡Yi wR,I Gi Kwc, ms¯nvcb gš¿Yvjq I A_© wefv‡M †cªiY Ki‡Z n‡e;

(O) Dbœqb cªK‡íi c` ivR¯^ ev‡R‡U ¯nvbvš—‡ii mgq †Kv‡bv kZ© Av‡ivwcZ n‡q _vK‡j cªkvmwbK gš¿Yvjq‡K Zv cvjb Ki‡Z n‡e|

(2)GB bxwZgvjv ev¯—evq‡bi c~‡e© A¯nvqxfv‡e m„RbK…Z c`mg~‡ni g‡a¨ †h mKj c‡`i †gqv` 3(wZb) eQi c~Y© nqwb, †m mKj c` cªkvmwbK gš¿Yvjq (1) DcAby‡”Q‡` ewY©Z kZ© AbymiYc~e©K wZb eQi ch©š— eQiwfwËK msi¶Y Ki‡Z cvi‡e|

(3) GB bxwZgvjv ev¯Zevq‡bi ci †Kvb Kvi‡Y A¯nvqxfv‡e m„ó c` wZb eQ‡ii g‡a¨ ¯nvqx Kiv m¤¢e bv n‡j, ms¯nvcb gš¿Yvjq I A_© wefv‡Mi m¤§wZμ‡g cªkvmwbK gš¿Yvjq cieZ©x eQ‡ii Rb¨ D³ c`mgyn msi¶Y Ki‡Z cvi‡e|

(4) Awa`ßi/cwi`ßi/¯evqËkvwmZ ms¯nvi b¨vq gš¿Yvjq/wefv‡Mi A¯nvqx c`I mswk−ó gš¿Yvj‡qi `vwq‡Z¡ wb‡qvwRZ gvbbxq gš¿xi m¤§wZ wb‡q msi¶b Kiv hv‡e|

(†gt †gvm‡jn DwÏb)

mwPeÓ

28. On 24th December 2008, the Ministry of Establishment issued another circular with the subject heading, ÒDbœqb cªKí mgvwßi ci AZ¨vek¨Kxq c` ivR¯e ev‡R‡U ¯nvbvš—iÓ The contents of the circular dated 24.12.2008 run as follows:

Ò MYcªRvZš¿x evsjv‡`k miKvi

ms¯’vcb gš¿Yvjq

m I e¨-1(4)AwakvLv|

cwicÎ

bs-mg(mI e¨-4)-1c-1/2008-255 ZvwiLt 10†cŠl, 1415/24 wW‡m¤^i,2008|

welqt Dbœqb cªKí mgvwßi ci AZ¨vek¨Kxq c` ivR¯e ev‡R‡U ¯nvbvš—i|

miKvi wm×vš— MªnY K‡i‡Q †h, Dbœqb cªK‡íi gva¨‡g M„nxZ Kg©m~Px cªKí mgvwßi ci cwiPvjbvi Rb¨ ivR¯e ev‡R‡U c` m„Rb I ¯nvbvš—‡ii wel‡q wbg¥i“c weavb Abym„Z n‡et

1| GLb †_‡K †h mKj Dbœqb cªKí Aby‡gvw`Z n‡e Zv‡Z cªKí PjvKvjxb c‡`i Pvwn`vi cvkvcvwk cªKí mgvwßi ci mswk−ó cªwZôv‡bi we`¨gvb c‡`i AwZwi³ †hme c` Acwinvh© e‡j MY¨ n‡e, †m mKj c‡`i Pvwn`vI GKB c×wZ‡Z ch©v‡jvPbv K‡i Dbœqb cªKí QK (DPP)- G Aš—f©~³ Ki‡Z n‡e AZtci (DPP)-‡Z Aš—f©~³ ivR¯eLv‡Z ¯nvbvš—i‡hvM¨ Acwinvh© c‡`i ‡¶‡Î wewa †gvZv‡eK ms¯nvcb gš¿Yvj‡qi m¤§wZ MªnY Ki‡Z n‡e| gwš¿cwil` wefv‡Mi 22-01-2003wL«t Zvwi‡Li gcwe/Ktwetkvt/gK-01/ 2003/28 bs cªÁvcb g~‡j MwVZ Dbœqb cªK‡íi c`/Rbej wba©viY msμvš— KwgwU cy•Lvbycy•L cix¶v-wbix¶v Kivi gva¨‡g cªKí PjvKvjxb I mgvwßi ci ivR¯^ Lv‡Zi Acwinvh© Dfq cªKvi c‡`i †kªYx I msL¨v wba©vi‡Yi mycvwik cª`vb K‡i|

2| cªKí mgvwßi mv‡_ mv‡_ ivR¯^Lv‡Z ¯nvbvš—i‡hvM¨ Acwinvh© c` ¯^qswμqfv‡e A¯nvqxwfwË‡Z ivR¯^ ev‡R‡U ¯nvbvš—wiZ n‡e| mswk−ó cªkvmwbK gš¿Yvjq ms¯nvcb gš¿Yvjq I A_© wefvM‡K AewnZ †i‡L ivR¯^ ev‡R‡U c` ¯nvbvš—‡ii Av‡`k/cªÁvcb Rvix Ki‡e| G‡¶‡Î ms¯nvcb I A_© gš¿Yvj‡qi cybivq m¤§wZ Mªn‡Yi cª‡qvRb n‡e bv|

3| cªK‡íi gva¨‡g M„nxZ †Kv‡bv Kg©m~Px Øviv Dc‡Rjv, †Rjv I wefvMxq ch©v‡q †Kvb `ßi, _vbv I Z`š— †K›`ª ¯nvcb Ges c` m„Rb Kiv n‡j †m †¶‡Î cªkvmwbK Dbœqb msμvš— mwPe KwgwUi mycvwik I wbKvi Gi c~e© Aby‡gv`b MªnY Ki‡Z n‡e|

4| Dbœqb cªKí mgvwßi ci ivR¯^Lv‡Z ¯nvbvšÍwiZ c‡` wb‡qvM wewa I we`¨gvb wewaweavb AbymiY K‡i Rbej wb‡qvM Ki‡Z n‡e| Z‡e cªKí mgvwßi c~‡e© wb‡qvM cªwμqv ïi“ Kiv †h‡Z cv‡i| GQvovI cªPwjZ wewa-weavb I c×wZ AbymiY K‡i ivR¯^Lv‡Z ¯nvbvš—wiZ c`¸‡jv msi¶Y I ¯nvqxKi‡Yi e¨e¯nv MªnY Ki‡Z n‡e| ¯nvqxKiY cªwμqv m¤úbœ nIqvi ci miKvwi Av‡`kmg~‡ni Kwcmn wUI GÛB ms‡kva‡bi cª¯Zve ms¯nvcb gš¿Yvj‡q †cªiY Ki‡Z n‡e|

5| Dbœqb cªKí ev¯—evq‡bi Rb¨ Rbej wb‡qv‡Mi †¶‡Î A_© gš¿Yvj‡q A_© wefvM KZ©„K 22-05-2008 wLªt Zvwi‡Li Ag/Awe/ev-12/wewea -65/07(Ask) /1040 bs m¥vi‡K RvixK…Z cwicÎ AbymiY Ki‡Z n‡e| 6| G cwicÎ Rb¯^v‡_© Rvix Kiv n‡jv Ges Zv 01 Rvbyqvix, 2009 wLªt n‡Z Kvh©Ki n‡e|

(†gvt †gvm‡jn DwÏb)

mwPeÓ

29. On 15.04.2010, the Ministry of Establishment issued another circular regarding transfer of the officers and employees of the completed development project in revenue budget with the subject heading, “Dbœqb cªKí mgvwßi ci AZ¨vek¨Kxq /Acwinvh© c` ivR¯^ ev‡R‡U ¯nvbvš—i|” The contents of the said circular run as follows:

Ò MYcªRvZš¿x evsjv‡`k miKvi

ms¯’vcb gš¿Yvjq

m I e¨ kvLv-1

cwicÎ

bs-05.161.015.00.00.007.2009-78(K)

ZvwiLt 02 ‰ekvL 1417

15 Gwcªj 2010

welqt Dbœqb cªKí mgvwßi ci AZ¨vek¨Kxq/Acwinvh© c` ivR¯e ev‡R‡U ¯nvbvš—i|

ms¯’vcb gš¿Yvj‡qi 24-12-2008 Zvwi‡Li ¯gviK bs mg(mI e¨-4)-1c-1/2008- 255 g~‡j RvixK…Z cwic‡Î D‡j−L Kiv n‡qwQj †h, 01 Rvbyqvix 2009 n‡Z †h mKj Dbœqb cªKí mswk−ó KZ©„c¶ KZ©„K Aby‡gvw`Z n‡e Zv‡Z cªKí PjvKvjxb cª‡qvRbxq c‡`i cvkvcvwk cªKí mgvwßi ci mswk−ó cªwZôv‡bi we`¨gvb c‡`i AwZwi³ †h me c` Acwinvh© e‡j MY¨ n‡e, †m mKj c‡`i Pvwn`vI GKB c×wZ‡Z ch©v‡jvPbv K‡i Dbœqb cªKí QK (DPP)-G Aš—f©~³ Ki‡Z n‡e| AZtci DPP-†Z D³i“‡c Aš—f©~³ AZ¨vek¨Kxq/Acwinvh© c`mg~n ivR¯^Lv‡Z ¯nvbvš—‡ii †¶‡Î wewa †gvZv‡eK ms¯nvcb gš¿Yvj‡qi m¤§wZ MªnY Ki‡Z n‡e|

2| wKš‘ D³ cwicÎwU Rvixi ci Dbœqb cªKí cªYqb I Aby‡gv`‡bi †¶‡Î cwicÎwUi wewa-weavb h_vh_fv‡e Abym„Z bv nIqvq D³ cwic‡Îi wb‡`©kbvg‡Z ivR¯^Lv‡Z ¯nvbvš—i‡hvM¨ Acwinvh© c‡`i Pvwn`v DPP -†Z Aš—f~©³ K‡i ivR¯^Lv‡Z ¯nvbvš—i‡hvM¨ Acwinvh© c`mg~n ivR¯^Lv‡Z ¯nvbvš—‡ii wbwgË †Kvb cª¯Zve A`¨vewa ms¯nvcb gš¿Yvj‡q cvIqv hvqwb| Dbœqb cªK‡íi †gqv` †k‡l AZ¨vek¨Kxq/Acwinvh© c`mg~n h_vmg‡q Ges h_vh_ Dcv‡q DPP -†Z Aš—f©~³ bv Kiv n‡j Acwinvh© c`mg~n ivR¯^Lv‡Z ¯nvbvš—‡ii †¶‡Î fwel¨‡Z RwUjZv m„wó n‡Z cv‡i|

3| Dc‡iv³ Ae¯nvq cwi‡cªw¶‡Z miKvi KZ©„K wm×vš— MªnY Kiv n‡q‡Q †h, fwel¨r RwUjZv cwinv‡ii j‡¶¨ ms¯nvcb gš¿Yvj‡qi 24-12-2008 Zvwi‡Li 255 bs ¯gvi‡K RvixK…Z cwic‡Îi wb‡`©kbv¸‡jv AvMvgx 01 RyjvB 2010 n‡Z eva¨Zvg~jKfv‡e AbymiY Ki‡Z n‡e|

4| gwš¿cwil` wefv‡Mi 22-01-2003 Zvwi‡Li ¯gviK bs gcwe/Ktwetkvt/gK- 01/2000/28 Gi Av‡jv‡K MwVZ Dbœqb cªK‡íi c`/Rbej wba©viY msμvš— KwgwU miKv‡ii D³i“c wb‡`©kbv ev¯—evqb wbwðZ Ki‡e|

5| A_©wefvM I cwiKíbv wefvM fwel¨‡Z M„nxZ Dbœqb cªK‡íi AZ¨vek¨Kxq/Acwinvh© c`mg~n DPP-†Z Aš—f©~w³i wel‡q AvMvgx 1 RyjvB 2010 n‡Z eva¨Zvg~jKfv‡e Abymi‡Yi †¶‡Zi cª‡qvRbxq c`‡¶c MªnY Ki‡e|Ó

30. Except the aforesaid Government memorandum, circulars or orders, we do not find any specific statutory provision to transfer/absorb the officers or employees of the development project to revenue set up. However, in the circular dated 24.08.2008 it has been specifically mentioned that after completion of the development project, appointment should be given in the transferred revenue set up following the related service Rules. As the Government has got a right to issue executive instructions in the spheres which are not covered by the Rules, any administrative instructions issued are supposed to be followed. It is to be remembered that the executive power could be exercised only to fill up the gaps but the instructions cannot and should not supplant the law, but only supplement the law. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Broadly speaking, those administrative orders, circulars or instructions do not have any statutory force and those do not give rise to any legal right in favour of the party aggrieved and cannot be enforced in a court of law against the Government.

31. On 2^nd May, 1995, the Government framed a ÒBidhimalaÓ in the name of, “Dbœqb cªKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvš—wiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ôZvwba©viY wewagvjv, 1995”. In the said Rule ÒDbœqb cªKíÓ has been defined in Rule 2(Ka) as under:

Ò2(K) ÔDbœqb cªKíÕ A_© Dbœqb ev‡RU ev LvZfz³ †h mKj cªKí 1983 m‡bi †g gv‡mi 13 ZvwiL ev ZrcieZ©xKv‡j ivR¯^ ev‡R‡U ¯nvbvš—wiZ nBqv‡Q ev nB‡e H mKj Dbœqb cªKí; Ó

32. In Rules 2(Ga) the employees of the project has been defined as under:

Ò 2(M) ÔcªK‡íi Kg©PvixÕ A_© 1972 m‡bi Gwcªj gv‡mi 9 ZvwiL nB‡Z GB wewagvjv Rvixi ZvwiL ch©š— (Dfq ZvwiL Aš—f~©³) mgqmxgvi g‡a¨ Dbœqb cªK‡íi †Kvb c‡` wbhy³ Ges 1983 m‡bi †g gv‡mi 13 ZvwiL ev ZrcieZ©xKv‡j ivR¯^ ev‡R‡U ¯nvbvš—wiZ †Kvb c‡` mvgwqKfv‡e c`¯n Kg©KZ©v ev Kg©Pvix;Ó

33. On 20th June, 2005, the Government framed another identical Rule in the name of “Dbœqb cªKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvš—wiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ôZvwba©viY wewagvjv, 2005”. In the said Rule, the word, ÒDbœqb cªKíÓ has been defined as under:

2(K) ÒDbœqb cªKíÓ A_© 9 Gwcªj, 1972 Bs nB‡Z 30 Ryb, 1997Bs ZvwiL ch©š— mg‡qi g‡a¨ ïi“ nIqv miKvi Aby‡gvw`Z, Dbœqb ev‡RUfz³ cªKímg~n, Definition of development project in Rule 1995 and Rule 2005 are quite different.

The words ÒDbœqb cªK‡íi Kg©KZ©v I Kg©PvixÓ in wewagvjv, 2005 has been defined as under:

Ò2(M) ÒDbœqb cªK‡íi Kg©KZ©v I Kg©PvixÓ A_© 1972 m‡bi Gwcªj gv‡mi 9 ZvwiL nB‡Z 30†k Ryb, 1997 Bs Zvwi‡Li g‡a¨ ïi“ nIqv Dbœqb cªK‡íi †Kvb c‡` †¯‹jwfwË‡Z wbhy³ Kg©Pvix Ges 1983 m‡bi †g gv‡mi 13 ZvwiL ev ZrcieZ©xKv‡j ivR¯^ ev‡R‡Ui †Kvb c‡` mvgwqKfv‡e c`¯n Kg©KZ©v ev Kg©Pvix; Ó

The word ÒwbqwgZKiYÓ has been defined as under:

2(P)ÒwbqwgZKiYÓ A_© ivR¯^ ev‡R‡Ui c‡` mvgwqKfv‡e c`¯n †Kvb Kg©KZ©v Kg©Pvix‡K wb‡qvMKvix KZ©„c¶ KZ©„K wbqwgZKiY;

34. Rule 3 of the said Rules provides non-obstante clause. The contents of which run as follows:

Ò 3| wewagvjvi cªvavb¨ - AvcvZZt ejer Ab¨ †Kvb wewagvjv, Av‡`k ev wb‡`©‡k hvnv wKQyB _vKzK bv †Kb, Dbœqb cªK‡íi Kg©KZ©v I Kg©Pvix‡`i †¶‡Î GB wewagvjvi weavbvejx Kvh©Ki nB‡e| Ó

35. Rule 4 of the said Rules provides the process of regularization of the officers and employees in the revenue budget from development project.

Ò4| ivR¯^ ev‡R‡U wbqwgZKiY c×wZt-(1) Dbœqb cªK‡íi †Kvb Kg©KZ©v I Kg©Pvix‡K wbg¥ewY©Z k‡Z© wbqwgZKiY Kiv hvB‡e, h_vt-

(K) ivR¯^ ev‡R‡Ui †Kvb c‡` mvgwqKfv‡e c`¯n †Kvb Kg©KZ©v I Kg©Pvixi mswk−ó cªK‡í wb‡qvM miKv‡ii cªPwjZ wb‡qvMwewa ev wb‡qvM c×wZ ev mswk−ó cªK‡íi Rb¨ miKvi KZ©„K Aby‡gvw`Z wb‡qvMwewa Abymi‡Y nB‡Z nB‡e;Ges

(L)D³ Kg©KZ©v ev Kg©Pvixi ivR¯^ ev‡R‡Ui c‡` wbqwgZKi‡Yi c~‡e©i PvKzixi avivevwnKZv _vwK‡Z nB‡e; Ges

(M) D³ Kg©KZ©v ev Kg©Pvixi ivR¯^ ev‡R‡Ui c‡` wbqwgZKi‡Yi c~‡e©i PvKzix m‡š—vlRbK nB‡Z nB‡e|

(2) ivR¯^ ev‡R‡Ui c‡` mvgwqKfv‡e c`¯’ †Kvb Kg©KZ©v ev Kg©Pvix Aemi cª¯—ywZKvjxb QywU †fvMiZ _vwK‡j A_ev Aemi Mªn‡Yi eqm DËxY© nB‡j A_ev g„Zz¨eiY Kwi‡j Zvnv‡K f~Zv‡c¶fv‡e †¶ÎgZ, Aemi cÖ¯‘wZKvjxb QywU ev eqm DËxY© ev g„Zz¨ei‡Yi Zvwi‡Li c~e© Zvwi‡L Kvh©KvwiZv cª`vb Kwiqv wbqwgZ Kiv hvB‡e|

Z‡e kZ© _v‡K ‡h, GBi“c †¶‡Î mswk−ó e¨w³ QywU‡Z hvBevi ev eqm DËxY© nBevi ev g„Zz¨ei‡Yi c~‡e©i PvKzix m‡š—vlRbK nB‡Z nB‡e|

(3) Kg©Kwgk‡bi AvIZvf~³ †Kvb c‡` Kwgk‡bi mycvwikμ‡g Ges Kwgk‡bi AvIZv ewnf~©³ †Kvb c‡` wefvMxq c‡`vbœwZ ev evQvB KwgwUi mycvwikμ‡g wbqwgZ Kwi‡Z nB‡e|Ó

36. On the same day, that is, on 20.06.2005 another Rule was framed in the name of, “mgvß Dbœqb cªKí nB‡Z ivR¯^ ev‡R‡Ui c‡` wb‡qv‡Mi †¶‡Î eqm wkw_jKiY wewagvjv, 2005”

37. In the said Rule, the word ÒDbœqb cªKíÓ has been defined as under:

Ò2(K) ÒDbœqb cªKíÓ A_© 1 RyjvB , 1997Bs ZvwiL nB‡Z ïi“ nIqv Dbœqb ev‡RUfz³ miKvi KZ©„K Aby‡gvw`Z mgvß cªKímg~n;Ó

The word ÒDbœqb cªK‡íi Kg©KZ©v I Kg©PvixÓ has been defined as under:

2(L) ÒDbœqb cªK‡íi Kg©KZ©v I Kg©PvixÓ A_© Dbœqb cªK‡íi †Kvb c‡` wb‡qvMcªvß nBqv D³ cªK‡íi mgvwßi ZvwiL ch©š— mvKzj¨ †eZ‡b PvKzixiZ wQ‡jb GBi“c Kg©KZ©v ev Kg©Pvix;Ó

38. Rule 3 provides the non-obstante clause which is as under:

Ò3| wewagvjvi cªvavb¨t- AvcvZZt ejer Ab¨ †Kvb wewagvjv, Av‡`k ev wb‡`©k hvnv wKQyB _vKzK bv †Kb, GB wewagvjvi weavbejx cªvavb¨ cvB‡e|Ó

39. M‡Yi I `iLv¯— `vwLj Kwievi AwaKvi _vwK‡e| Rule 4 provides the provision of Òeqm wkw_jKiY c×wZ|Ó which runs as follows:

Ò4| eqm wkw_jKiY c×wZt- (1) ‡h †¶‡Î ivR¯^ ev‡R‡Ui †Kvb k~b¨ c‡` Db¥y³ cªwZ‡hvwMZvi gva¨‡g mivmwi wb‡qv‡Mi Rb¨ mswkó c‡`i wb‡qvM wewa I c×wZ Abyhvqx KZ©„c¶ ev †¶ÎgZ, Kwgkb KZ©„K weÁwß cªPvi Kwiqv `iLv¯Z Avnevb Kiv nq †mB‡¶‡Î D³ wewa ev c×wZ‡Z cªv_©xi eqtmxgvi wel‡q hvvnv wKQyB _vKzK bv †Kb, ewnivMZ cªv_©x‡`i mwnZ Dbœqb cªK‡íi Kg©KZ©v I Kg©Pvix

(2)Dc-wewa(1) Gi Aaxb ivR¯^ ev‡R‡Ui †Kvb c‡` wb‡qvM jv‡fi Rb¨ cªv_x© nBevi †¶‡Î Dbœqb cªK‡íi Kg©KZ©v I Kg©PvixM‡Yi eqmmxgv wkw_j Kiv nBqv‡Q ewjqv MY¨ nB‡e|

(3) GB wewai Aaxb cª`Ë eqtmxgv wkw_‡ji my‡hvM MªnY Kwiqv PvKzixcªvß nB‡j †mB‡¶‡Î mswkó Kg©KZ©v ev Kg©Pvixi wb‡qvM bewb‡qvM ewjqv MY¨ nB‡e|Ó

40. It is clear from those “Bidhimalas” dated 02.05.1995 and 20.06.2005 that before regularization of the service of the officers and employees absorbed in the revenue budget from development project, the provisions of regularization as provided in those Bidhimalas, whichever is applicable, should be followed.

41. The question arises for consideration is as to whether the writ petitioner-respondents could lay a valid claim of absorption and, thereafter, regularization of their services in the revenue set up.

42. Creation and sanction of post is a prerogative of the executive or legislative authority and the Court cannot arrogate to itself this purely executive or legislative function. The creation and abolition of post, formation and criteria structure/re-structure of cadre, prescribing the source and mode of recruitment and qualification and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish post or cadre or to prescribe the source or mode of recruitment and lying down the qualification etc. is not immune from judicial review. The Court ought to be always extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The power of judicial review can be exercised in such matter only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or malafide.

43. When a person enters into a temporary employment or gets engagement on a contractual basis or as casual employees and the engagement is not based on a proper selection as recognized by the relevant rules and procedures, he is well aware of the consequence of the appointment being temporary, casual or contractual in nature. It is recognized that no Government order, notification or circular can overide the statutory rules framed under the authority of law. During the course of argument various orders of the Courts both interim and final were brought to our notice. The purport of these orders more or less was the issue of direction for continuation or absorption/regularization/confirmation without referring to the legal position. It is settled provision of law that all appointment shall be made in accordance with the recruitment Rules. From the judgment it appears to us that the High Court Division failed to differentiate between absorption and regularization. It is necessary to keep in mind that there is distinction between absorption, regularization and confirmation of service in the service jurisprudence. The Government is bound to follow the law and have the selection of the candidates made as per recruitment Rules and the appointment shall be made accordingly. The Government is also controlled by the economic consideration. The viability of the department or the instrumentality of the Project is also of equal concern for the Government. The Government works out the scheme taking into consideration the financial implication and economic aspect of the matter. The Court ought not to impose a financial burden on the Government by making such type of direction. The Government is the better judge of the interests of the general public for whose service is necessary for its set up.

44. The High Court Division in some cases directed the Government or its instrumentalities to absorb/regularise the writ petitioners even though no vacancies were available for them. Such directions, in fact, amount to directions for creating vacancies and to give new appointment ignoring the Public Service Commission and also ignoring the Rules framed for the appointment of Gazetted Officers or Non-Gazzetted Officers, whichever is applicable. It would not be unusual to term such type of appointment, as “back door appointment” bypassing the Public Service Commission and ignoring the law. The appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.

45. In the case of State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC page 1 the Constitution Bench of the Supreme Court of India considered such question and observed that a class of employment which can only be called “litigious employment” has risen like a phoenix seriously impairing the constitutional scheme. It was further observed that the Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumbly on the basis of equitable considerations or individualisation of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of the country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any Court of law or justice, is to adhere to the law as laid down by the Constitution and not make directions, which at times, even if they do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subject to constitutional limitations and cannot be exercised arbitrarily.

46. It was further observed:

“With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent-the distinction between regularisation and making permanent, was not emphasized here-can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete.”

47. We shall now advert to the question whether the respondents can invoke the doctrine of promissory estoppel or legitimate expectation for supporting their claim. This part of the respondents’ claim is founded in the assertion made in the Development Project Proposal (PP) wherein it has been mentioned:

13. After completion, whether the project needs to be transferred to the revenue budget.

Yes

After completion of the project with assets and manpower should be transferred to revenue budget.

48. Mr. Mahmud in his submission mostly relied upon such specific assertion in the PP and submitted that in view of such specific assertion the respondents legitimately expected that their service would be transferred to the revenue budget. He added that, in fact, it was the written promise of the appointing authority and the same was duly approved by the Government.

49. The word “should” has been used in the P.P. So, it cannot be treated as promise as the word “shall” has not been used in the P.P. Moreover, P.P. is an internal document of a Project. The terms and conditions of the appointment of the writ petitioners shall be governmed by their respective advertisement for appointment in the Project, their appointment letters and respective contract. The question is, whether the rule of promissory estoppel or doctrine of legitimate expectation could be invoked in the particular facts and circumstances of the matter.

50. The basic principle is that the plea of estoppel cannot be raised to defeat the provisions of statute. The rule of promissory estoppel cannot be invoked for the enforcement of a promise which is contrary to law or outside the authority of the persons making the promise. Such principle cannot be used or invoked to compel the Government or public authority to act contrary to law or against a statute. There is no estoppel against law and at any rate the abstention of the Government in absorving the writ petitioners in the revenue budget does not attract the law of estoppel. The Court will refuse to invoke the principles of promissory estoppel/equitable estoppel since there are specific laws providing the procedures of appointment in the posts for which the writ petitioners were seeking absorption. Such doctrine cannot be allowed to operate so as to override the clear words of statute.

51. Mr. Mahmud submits that the writ petitioners legitimately expected that their service would have been absorbed in view of the expressed assurance.

“Legitimate expectations” are those expectations which travel beyond enforceable legal rights provided they have some reasonable basis.

In Halsbury's laws of England (Fourth Edition), the doctrine of legitimate expectation has been described in the following words :

"A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice."

52. In Union of India and others vs. Hindustan Development Corporation and others reported in (1993)4SCC 433 Supreme Court of India considered the doctrine of legitimate expectation and held :

"For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense."

53. In Punjab Communications Ltd. vs. Union of India reported in (1994) 4SCC 727 the Indian Supreme Court observed as under :

"The principle of `legitimate expectation' is still at a stage of evolution. The principle is at the root of the rule of law and requires regularity, predictability and certainty in the Government's dealings with the public. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. ...

However, the more important aspect is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change. ... In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made."

54. In Dr. Chanchal Goyal (Mrs.) vs. State of Rajasthan [2003 (3) SCC 485], the appellants claim for absorption in the regular cadre/regularization of service was rejected by the High Court. While approving the orders the Supreme Court of India observed :

“On the facts of the case delineated above, the principle of legitimate expectation has no application. It has not been shown as to how any act was done by the authorities which created an impression that the conditions attached in the original appointment order were waived. Mere continuance does not imply such waiver. No legitimate expectation can be founded on such unfounded impressions. It was not even indicated as to who, if any, and with what authority created such impression. No waiver which would be against requisite compliances can be countenanced. Whether an expectation exists is, self-evidently, a question of fact. Clear statutory words override any expectation, however founded."

55. In State of Karnataka vs. Umadevi (supra), the Constitution Bench referred to the claim of the employees based on the doctrine of legitimate expectation and observed as under :

"The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn."

56. In Ram Pravesh Singh vs. State of Bihar [2006 (8) SCC 381], a two-Judges Bench considered the question whether the employees of Futwah Phulwarisharif Gramya Vidyut Sahakari Samiti Ltd., which was a cooperative society, could claim absorption in the services of Bihar State Electricity Board by invoking the doctrine of legitimate expectation. The facts of that case show that the society was brought into existence by the State Government, the Electricity Board and the Rural Electrification Corporation for effective implementation of Rural Electrification Scheme meant for better distribution of electricity to rural areas, but the license of the society was revoked in the year 1995 and the Board refused to absorb the employees of the society. The Single Judge and Division Bench of the High Court declined to interfere with the decision of the Board. Supreme Court of India dismissed the appeal of the employees and observed :

"What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term "established practice" refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a "legitimate expectation" of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above "fairness in action" but far below "promissory estoppel". It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the "legitimate expectation". The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognised legal relationship with the authority."

After noticing the judicial precedents on the subject, the Supreme Court of India held that employees of the erstwhile society cannot invoke the theory of legitimate expectation for compelling the Board to absorb them despite its precarious financial condition.

57. In the case of Union of India V. P.K. Choudhury reported in AIR 2016 SC 966 it has been observed that legitimate expectation as a concept arises out of what may be described as a reasonable expectation of being treated in a certain way by an administrative authority even the person who has such as expectation; no right in law to receive the benefit expected by him. Any such expectation can arise from an express promise or a consistent course of practice or procedure which the person claiming the benefit may reasonbly expect to continue. Expectation may be derived from either-

(1) an express promise or representation;

[Attorney General of Hongkong Ng Yuen shiv (1983)2 Ac 629]

(2) A representation implied from established practice based upon the past actions or the settled conduct of the decision makers.

[R.V. Secretary of State for Home Dept. (1987) 1WLR 1482]

58. Before applying the principle the Courts have to be cautious. It depends on the facts and recognized general principles of administrative law applicable to such facts. A person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation, that is, he has locus-standi to make such claim. Such claim has to be determined not according to the claimant’s perception but in the public interest.

59. The doctrine of legitimate expectation can neither preclude legislation nor invalidate a statute enacted by the competent legislature. The theory of legitimate expectation cannot defeat or invalidate a legislation which is otherwise valid and constitutional. Legitimate expectations must be consistent with statutory provisions. The doctrine can be invoked only if it is founded on the sanction of law. Clear statutory words override any expectation, however well-founded.

60. It is open to the Government to frame, reframe, change or rechange its policy. If the policy is changed by the Government and the Court do not find the action malafide or otherwise unreasonable, the doctrine of legitimate expectation does not make the decision vulnerable. The choice of policy is for the decision maker and not for the Court. While dealing with public policy in juxtaposition with the doctrine of legitimate expectation, the following observations of Lord Diplock in Hughes v. Department of Health & Security (1985) 2WLR 866 must always be kept in view by a Court of law:

“Administrative policy may change with changing circumstances, including changes in the political complexion of Governments. The liberty to make such changes is something that is inherent in our constitutional form of government.”

61. An expectation, fulfillment of which requires that a decision-maker should take an unlawful decision cannot be said to a legitimate expectation. This is based on the doctrine that can be no estoppel or legitimate expectation against a statute (Wade: Administrative Law, (2005)p.p 376.

62. In the instant case, the employment notification dated 20.03.2011 it was specifically stated, Ògrm¨ I cªvYxR m¤ú` gš¿Yvj‡qi AvIZvaxb cªvYxR m¤ú` Awa`ß‡ii 22(evBk)wU wbe©vwPZ †Rjvq ¶z`ª, `y» I gyiMx Lvgvix‡`i mnvqK †mev`vb cªK‡íi Aax‡b wb‡b¥v³ c‡` m¤ú~Y© A¯nvqx wfwË‡Z cªKí PjvKvjxb mg‡qi Pzw³wfwËK mvKz‡j¨ †eZb Rbej wb‡qv‡Mi wbwg‡Ë cªK…Z evsjv‡`‡ki bvMwi‡Ki wbKU n‡Z `iLv¯Z Avnevb Kiv hv‡”Q|

In the appointment letter it was categorically stated,

K| G wb‡qvM m¤ú~Y© A¯nvqx wfwËK cªKí PjvKvjxb mg‡qi Rb¨ cª‡hvR¨ nB‡e|

L| †Kvbi“c KviY `k©v‡bv e¨wZwi‡K †h †Kvb mg‡q cªv_x© i wb‡qvM evwZj Kiv hv‡e|

P| cªKí †gqv` †k‡l Pzw³cÎ PvKzix n‡Z Ae¨vnwZ cÎ wn‡m‡e MY¨ n‡e| Each of the appointees, thereafter, executed an agreement specifically stipulating that, ÒcªKí †gqv` †k‡l GB Pzw³cÎB Ae¨vnwZ cÎ wnmv‡e Mb¨ n‡e|Ó The conditions of service of officers and employees appointed to the temporary posts of project are to be regulated by the terms of the contract and appointment letter.

63. We have already found that there is specific laws in the names of the Gazetted Officers (Department of Livestock Service) Recruitment Rules, 1984, the Non-Gazetted Employees (Department of Livestock Service) Recruitment Rules, 1985 and the Bangladesh Civil Service, Recruitment Rules, 1981 for the purpose of appointment of the officers in the Department of Livestock Service of the Government. All those laws categorically provide that the Public Service Commission shall recommend the best candidates on holding legally approved rigorous selection process for appointment to be made by President of the Republic. The Public Service Commission is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment. The PSC is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. Whenever the Government is required to make an appointment to a high public office, it is required to consult the PSC.

64. The instant project was launched under the Directorate of Livestock, Ministry of Fisheries and Livestock. Every appointment was given on contract basis and in the respective appointment letter it was categorically stated that after completion of the Project as per terms of the appointment letter and instrument of contract should be treated as the order of release.

65. In the judgment of the High Court Division, we have found that the writ respondents were directed to regularize/absorb the writ petitioners under the revenue budget with continuity of service and other benefits subject to availability of the same/equivalent posts provided that the writ petitioners have requisite qualifications. While drawing such conclusion, the High Court Division relied upon the case of Government of Bangladesh, represented by the Secretary, Ministry of Labour and Manpower and others Vs. Mohammad Anisur Rahman and others reported in 18 MLR (AD) page 372.

66. In the cited case this Division has observed,

“Having considered the project pro-forma and other materials-on-record, the High Court Division found that the Government made a clear promise and commitment to transfer or absorb the writ petitioners in revenue budget. The High Court Division took into consideration that the Executive Committee of the National Economic Council (ECNEC) at its meeting dated 31.12.2007 had taken decision to transfer all personnel of the development project to the revenue budget and accordingly, all concerned were directed to take necessary steps to transfer all completed development project to the revenue set up. The High Court Division came to a finding that the conduct and the policy of the Government created legitimate expectation of the writ petitioners and such expectation has now become a vested and indefeasible right to be absorbed and regularized in the revenue budget.

What is important to note here is that admittedly, the project started on 01.07.2001 and ended on 30.06.2009. Since the project started after 30.06.1997, the writ petitioners would not be automatically absorbed in the revenue budget. Though they have the legitimate expectation to be absorbed in the revenue budget such expectation can only be implemented subject to availability of the posts in the Bureau of Manpower Employment and Training (BMET).”

In the cited case it was further observed,

“In the light of the findings made before, we are inclined to dispose of the leave-petition with the following observations:

(a) The leave petitioners are directed to absorb the writ petitioners-respondents under the revenue budget subject to availability of same/equivalent posts under the Bureau of Manpower Employment and Training provided that they have the requisite qualification.

(b) In the event of non availability of adequate vacant posts to absorb the writ petitioners-respondents, the authority shall not make any recruitment in BMET in future until the writ petitioners are absorbed provided that they have requisite qualification.

(c) The writ petitioners-respondents are entitled to salaries and other benefits only for the period of rendition of their service.”

67. In the cited case it is not clear from the employment notification and other materials that whether the statutory provisions provided for selection process and appointment of the officers and employees as well as Government circular with subject heading, ÒDbœqb cªKí mgvwßi ci AZ¨vek¨Kxq c` evRvi ev‡R‡U ¯nvbvš—iÓ dated 24.12.2008 were complied with or not.

68. When a person enters a temporary employment or gets engagement as a contractual employee and such engagement is not based on legally approved selection process as recognized by the rules or procedure, he is aware of the consequences of the appointment being temporary or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being regularized in the post when an appointment to the post could be made only by following the legally approved procedure for selection provided in the Rules quoted earlier. Since the recommendation of Public Service Commission is statutory requirement, before regularization of service, such recommendation must be accorded. The plea of legitimate expectation of the employees can not be raised which is contrary to statutory provisions. The legitimate expectation of an incumbent, if there be any, would not override the statutory provision to the contrary even if he continued in a temporary service by several orders of extension. The instant direction was given mainly on the ground of legitimate expectation of the writ petitioners inasmuch as we have already observed that the doctrine of legitimate expectation cannot override the statutory provision. Such doctrine would not have application where the legislature has enacted a statute. The theory cannot be pressed into service if its invocation would defeat or invalidate a legislation enacted by the legislature. It is not understandable as to how the service of the officers are to be regularized without recommendation of the Public Service Commission ignoring specific statutory provisions. That is, the High Court Division directed to regularize the service of the writ petitioners of this writ petition totally ignoring specific provisions provided in the statute as well as the circular dated 24.12.2008. The constitutional scheme which our country has adopted does not contemplete any back door appointment.

69. We have gone through the “Bidhimalas”, 1995 and 2005. Both the “Bidhimalas” were promulgated by the President of the Republic pursuant to the power conferred under article 133 of the Constitution in consultation with the Public Service Commission as per provision of article 140(2) of the Constitution. In wewagvjv, 2005 a non-obstante clause has been provided in Rule-3 stating that- Ò3| wewagvjv cªvavb¨- AvcvZZt ejer Ab¨ †Kvb wewagvjv, Av‡`k ev wb‡`©‡k hvnv wKQyB _vKzK bv †Kb Dbœqb cªK‡íi Kg©KZ©v I Kg©Pvix‡`i †¶‡Î G wewagvjvi weavbejx Kvh©Kix nB‡e|Ó In wewagvjv, 2005 ÔDbœqb cªKíÕ has been defined as, ÒDbœqb cªKíÓ A_© 9 Gwcªj, 1972 Bs nB‡Z 30†k Ryb, 1997Bs ZvwiL ch©š— mg‡qi g‡a¨ ïi“nIqv miKvi Aby‡gvw`Z, Dbœqb ev‡RU cªKí mg~n| That is, by this definition development project has been used for limited purpose in respect of those Projects which were started on and from 09.04.1972 and ended on 30.06.1997. On perusal of the wewagvjv, 2005 it appears that by that “Bidhimala”, “Bidhimala” 1995 has not repealed expressly but overriding effect has been given using the aforesaid non-obstante clause. Maxwell on the interpretation of statues (Twelfth Edition) observed that a later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favourable to the Courts. If, as with all modern statutes, the later contains a list of earlier enactments which it expressly repeals, an omission of a particular statute from the list will be a strong indication of an intention not to repeal that statute. If, therefore, earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done. And when the later Act is worded in purely affirmative language, without any sort of negative expression or implied, it becomes even less likely that it was intended to repeal the earlier law. In the case of Municipal Council V. T.J. Joseph reported in AIR 1962 SC 922 it was observed that the legislature while enacting a law is aware of the existing laws of the same subject and hence if the legislature does not make a provision repealing the earlier law it does not indicate an intention to repeal the existing law. The “Bidhimala” 1995 is still in force.

70. In wewagvjv, 1995 we have found that the “deveopment project” has been defined as under: 2(K)ÒDbœqb cªKíÓ A_© Dbœqb ev‡R‡U ev LvZfz³ †h mKj cªKí 1983 m‡bi ‡g gv‡mi 13 ZvwiL ev ZrcieZ©x Kv‡j ivR¯^ ev‡R‡U ¯nvbvš—wiZ nBqv‡Q ev nB‡e H mKj Dbœqb cªKí| In both the “Bidhimalas” identical procedure of regularization of the service of the officers and employees from development project to revnue budget have been provided. In 1995, “Bidhimala” the same has been provided in Rule 3 with the heading ÒwbqwgZKiY c×wZÓ and in Bidhi-4 of Bidhimala, 2005 with the heading ÒivR¯^ ev‡R‡U wbqwgZKiY c×wZ|Ó In both the Bidhimalas it has been provided that ÒivR ¯^ ev‡R‡U †Kvb c‡` mvgwqK fv‡e c`¯n †Kvb Kg©KZ©v I Kg©Pvix mswk−ó cªK‡í wb‡qvM miKv‡ii cªPwjZ wb‡qvM wewa ev wb‡qvM c×wZ ev mswk−ó cªK‡íi Rb¨ miKvi KZ©„K Aby‡gvw`Z wb‡qvM wewa AbymiY nB‡Z nB‡e|Ó

71. For the purpose of regularization of the service in the revenue budget from development project other legal requirements which have been provided in the “Bidhiamala” should be followed. Those are : (a) ÒD³ Kg©KZ©v ev Kg©Pvixi ivR¯^ ev‡R‡Ui c‡` wbqwgZKi‡Yi c~‡e©i PvKzixi avivevwnKZv _vwK‡Z nB‡e|Ó and (b) D³ Kg©KZ©v ev Kg©Pvixi ivR¯^ ev‡R‡Ui c‡` wbqwgZKi‡Yi c~‡e©i PvKzix m‡š—vlRbK nB‡Z nB‡e| And another important precondition for regularization, which has been provided in both the “Bidhimalas” is: ÒKg© Kwgk‡bi AvIZvf~³ †Kvb c‡` Kwgk‡bi mycvwikμ‡g Ges Kwgk‡bi AvIZvewn©f~Z †Kvb c‡` wefvMxq c‡`vbœwZ ev evQvB KwgwUi mycvwikμ‡g wbqwgZ Kwi‡Z nB‡e| Ó That is, it is to be examined for regularising the service of an incumbent to revenue budget that he was appointed in the development project following the service Rules provided by the legislature; there must be continuity of service; service record in the development project must be satisfactory and the Public Service Commission must recommend in respect of the posts described in the schedule of the relevant law and, in other cases, must be recommended by departmental promotion committee or selection committee. Government cannot use its executive power to circumvent requirements of statutory rules. No body is entitled to flout the Rules.

72. One thing is clear from the Rules that since the Rules provide the provisions of ÒwbqwgZKiY c×wZÓ Ò†R¨ôZv wba©viYÓ and ÒcªK‡íi PvKzixKvj MYbvÓ, of the employees who served in the project, it is apparent that the laws did not prohibit the provision of absorption and, thereafter, regularization of the officers and employees of the development project to revenue budget. It is entirely for the Government to take policy decision considering the facts, circumstances, viability and future necessity of the project subject matter whether or not to absorb the services of the project employees in the revenue set up. However, policy decision once taken should apply equaly and uniformly. Simultaneously, it is to be remembered that absorption of project employees, who obtained employment by taking recourse to back door method, is violative of the constitutional scheme as the appointments have to be made on merits of the candidates. Finally, such absorption and thereafter, regularization must be processed and done following the Government instructions as well as the statutory provisions as mentioned earlier.

73. It is to be remembered that before regularization in the revenue budget in respect of the posts scheduled to be recruited by the Public Service Commission, recommendation of the Public Service Commission must be accorded. Similarly, recommendation of departmental promotion committee or selection committee is to be accorded for the posts which are not to be recruited by the Public Service Commission. That is, if the service of the officers and employees is transferred/absorbed in the revenue budget upon due compliance with the circular issued under Memo No. bs-mg(mI e¨-4)-1c-1/2008-255 ZvwiLt 10†cŠl, 1415/24 wW‡m¤^i,2008 then the service of the officers and employees of those transferred project should be regularized following the provisions of the applicable “Bidhimala” as quoted earlier. However, Òmgvß Dbœqb cªKí nB‡Z ivR¯^ ev‡R‡Ui c‡` wb‡qv‡Mi †¶‡Î eqm wkw_jKiY wewagvjv, 2005Ó provides special privilege of relaxation of age limit of employees of development budget for participation for getting employment in the posts of revenue budget. That is, the legislature, considering the experience and disadvantageous position of the officers and employees of the Development Project, has provided such special privilege to them since they have lost their valuable times while serving in the Projects Since the provisions of “Bidhimalas” are statutory provisions the authority concerned must comply with the provisions of the ÒBidhimalasÓ as quoted earlier before regularization of absorbed officers and employees in the revenue set up. However, this Court, is bound to insist the Government making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. No court can direct the Government or its instrumentalities to regularize the service of the officers and employees of the development project in the revenue budget in the cases where statutory requirements have not been fulfilled. Regularization cannot be claimed as a matter of right. It is statutory requirement that opportunity shall be given to eligible persons by public notification and recruitment should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office under the Government. When the High Court Division is approached for relief by filing writ petition, necessarily the High Court Division has to ask itself whether the person before it had any legal right to be enforced or not. It can not be directed to devise a third mode of selection.

74. Accordingly, it is observed that:

1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation can not be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.

4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complic-ation. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.

5. A mandamus can not be issued in favour of the employees directing the government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.

6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.

8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme.

75. In view of the discussion made above and since it is not apparent from the judgment of the High Court Division and other materials available in the record that the procedure provided in the Government notification, circulars or orders and the process of appointment indicated in the “Bidhimalas” 1995 or 2005 have been followed duly for appointing the writ petitioners and that they are no longer in service in view of terms of appointment letters and contracts, the direction of the High Court Division to absorb/regularise their service giving continuity of the same can not be approved. So, the same is set aside.

76. In the light of the observation made above, the appeal and review petition are disposed of

Ed.

civil appeal no. 460 of 2017 with civil review petition no. 181 of 2018.

(From the judgment and order dated 07.09.2016 passed by the High Court Division in Writ Petition No. 7166 of 2015 and judgment and order dated 21.08.2017 passed by the Civil Petition for Leave to Appeal No. 1790 of 2017.)

Secretary, Ministry of Health and Family Welfare & others Vs. Parvin Sultana, 57 DLR (AD) (2005) 111

Case No: Civil Petition for Leave to Appeal No. 1329 of 1999

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Mr. Md. Ataur Rahman khan,Fida M. Kamal,,

Citation: 57 DLR (AD) (2005) 111

Case Year: 2005

Appellant: Secretary, Ministry of Health and Family Welfare & others

Respondent: Parvin Sultana

Subject: Constitutional Law,

Delivery Date: 2004-1-10

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Syed JR Mudassir Husain J
MM Ruhul Amin J

Secretary, Ministry of Health and Family Welfare & others
....Petitioners
Vs.
Parvin Sultana
....Respondent

Judgment
January 10, 2004.

The Constitution of Bangladesh, 1972
Article 103
Order of transfer of a senior staff nurse who is the writ petitioner is contravention of the circulars issued by the Government from time to time framing regulations of transfer of such employees. The High Court Division rightly decided the case in favour of the writ petitioner.

Lawyers Involved:
Fida M Kamal, Additional Attorney General, instructed by B Hossain, Advocate‑on‑Record‑ For the Petitioners.
Ataur Rahman Khan, Advocate-on‑Record‑ For the Respondent.

Civil Petition for Leave to Appeal No. 1329 of 1999
(From the judgment and order dated 11th August, 1999 passed by the High Court Division in Writ Petition No. 123 of 1999)

JUDGMENT

Syed JR Mudassir Husain J:

1. This Civil Petition for leave to appeal is directed against the judgment and order 11‑8‑1999 passed by the High Court Division in Writ Petition No, 123 of 1999 making the Rule absolute.

2. The facts leading to this petition are that the respondent Parvin Sultana filed the above writ petition whereupon a Rule was issued calling upon the respondent (leave petitioner) to show cause as to why the impugned order to transfer her dated 18‑11-1998 issued by the respondent No. 4 (Annexure‑A) should not be declared to have been made without lawful authority and of no legal effect. The petitioner's case is that she is a Senior Staff Nurse of the National Institute of Cardio Vascular Diseases and Hospital and she is also an office bearer and representative of the Nurses Association. The petitioner was transferred from National Institute of Cardio Vascular Disease and Hospital, Dhaka to the Health Complex, Tajumuddin, Bhola in the vacant post of Senior Staff Nurse and she was asked to take release order within two days otherwise she will stand released on the third day as was intimated by the respondent No. 4 in the impugned order dated 18‑11‑1998. On receipt of the said impugned order the petitioner filed an application for cancellation of the said transfer order and she also filed another application on 17‑12‑1998 though the respondent No. 4 verbally assured the writ petitioner that the matter will be looked into but did not make any written order. The petitioner further stated that she has been living in Dhaka with her husband and her family consisting of old ailing mother, who required constant treatment and for all the reasons she prayed for cancellation of the order of transfer but with no effect. The petitioner has further stated that the Ministry of Establishment vide memo dated 10‑2-1987 in order to avoid transfer of 3rd and 4th class employees provided the principle which was duly approved by the Cabinet Division Meeting dated 23‑2‑1986 and pursuant to the decision of the Cabinet Division Meeting it was informed to all concerned that the job of 3rd and 4th class employees are not usually transferable providing some guidelines which was duly approved by the President and was recommended by Inter Ministerial consultation regarding the transfer of 3rd and 4th class employees which was approved by the Cabinet Division on January 19, 1986 and order was issued not to transfer any 3rd and 4th class employees unless they are not listed and that any transfer would be deemed by way of harassment but the petitioner who has not been enlisted in the said list has been transferred which is deemed to be an action against her for her trade union activities and the order of transfer is simply an act of harassment. The petitioner has further stated that as the representative of the Nurses Association she raised some demands before the authority and out of grudge, the authority issued the impugned order which apart from being malafide is also, according to the government circular, deemed to be by way of harassment.

3. That the petitioner by way of supplementary affidavit has stated that the petitioner filed several applications for cancellation of her transfer order on humanitarian ground as well as on medical ground but till date no step has yet been taken and nobody has yet been posted in the petitioners post and place and the petitioner has been drawing her pay from the present place at Dhaka and that as the petitioner being a 3rd class employee and her husband is serving at Dhaka as per government directive also her transfer order is illegal. The learned judges of the High Court Division upon hearing the parties made the Rule absolute.

4. Mr. Fida M Kamal, the learned Additional Attorney General, argued that the order of transfer has been passed in the public interest and, as such, the High Court Division erred in law in making the Rule absolute without considering that the order of transfer has been made with lawful authority and the allegation of malafide having not been proved the High Court Division committed an error of law in passing the impugned order and, as such, the findings and decisions are liable to be set aside.

5. We have heard the learned Additional Attorney‑General and perused the impugned judgment of the High Court Division. It appears that the High Court Division considered the Annexures- "C, C 1 & C2" which were issued from time to time by Ministry of Establishment and were duly approved by the Cabinet Division. It was stated that none of the 3rd and 4th class employees except the listed one shall be transferred vide circular dated 18-9‑1986 (Annexure‑C 1). It further appears that the High Court Division considered the conditions appearing in para Ka, Kha, Ga, & Gha and thereof it is found that the order of transfer if any shall be deemed to be for harassment. The learned Judges of the High Court Division also considered the circular (Annexure‑C2) and that in such state of affairs the learned Additional Attorney‑General also found difficult to support the order passed by the writ-respondent No. 4. Having regard to the facts and circumstances of the case, we are of the view that the learned Judges of the High Court Division rightly decided the case and there is no legal infirmity or illegality in the impugned Judgment of the High Court Division calling for our interference.

Accordingly, this petition merits no consideration. Hence, it is dismissed.

Ed.

Secretary, Ministry of Housing Vs. M/S. Hanif Brothers & ors., (Hasan Foez Siddique, J.)

Case No: CIVIL APPEAL No.140 OF 2009

Judge: Syed Mahmud Hossain, J Hasan Foez Siddique, J Mirza Hussain Haider, J.

Court: Appellate Division ,

Advocate: Mr. Murad Reza, Additional Attorney General, instructed by Mr. Zainul Abedin, Advocate-on-Record.,

Citation: 2018(2) LNJ ( AD)

Case Year: 2017

Appellant: Secretary, Ministry of Housing and Public Works, Government of Bangladesh, Bangladesh Secretariat, Dhaka & others

Respondent: M/S. Hanif Brothers and another

Subject: Contract Act

Delivery Date: 2019-12-02

APPELLATE DIVISION

(CIVIL)

Syed Mahmud Hossain, J

Hasan Foez Siddique, J

Mirza Hussain Haider, J.

Judgment on

17.05.2017

}

Secretary, Ministry of Housing and Public Works, Government of Bangladesh, Bangladesh Secretariat, Dhaka & others

. . . Appellants

-Versus-

M/S. Hanif Brothers and another

. . . Respondents

Contract Act (IX of 1872)

Section 17

There is a legal maxim that tell the truth, the whole truth and nothing but the truth. Neither in the Court of Settlement nor in the High Court Division the writ petitioner respondent stated that earlier he filed settlement case which was dismissed on merit. He was totally silent about his earlier case and the observation made by the Court of Settlement inasmuch as it was his duty to bring it to the notice of the Court. Such silence is fraud upon the Court because it was his duty to bring the truth the notice of the Courts. . . . (8)

For the Appellants : Mr. Murad Reza, Additional Attorney General, instructed by Mr. Zainul Abedin, Advocate-on-Record.

For the Respondent : Mr. Mohammad Abdul Hai, Advocate-on-Record.

JUDGMENT

Hasan Foez Siddique, J: This appeal is directed against the judgment and order dated 05.04.2006 passed by the High Court Division in Writ Petition No.4309 of 2005 directing the writ respondents to exclude the property, in question, from the ‘Ka’ list of the abandoned properties and to restore possession of the same.

2. The short facts, for the disposal of this appeal, are that Plot No. CES (A)-49, Gulshan, Road No.96, Gulshan Avenue, Gulshan Model Town, Dhaka (hereinafter referred to as the disputed property) was allotted to writ petitioner M/S. Hanif Brothers by the then Dhaka Improvement Trust by allotment letter No.DIT/Gulshan/787 dated 01.09.1960 and accordingly, lease Deed No.4439 dated 29.04.1964 was executed and registered. While the writ petitioner had been in possession of the property, he was dispossessed by some miscreants after the war of liberation. Subsequently, the Government took over the control of the property as abandoned property and it was listed in the ‘Ka’ list of abandoned buildings published in the official Gazette on 13.09.1986. The writ petitioner on several occasions applied to the writ respondents for getting release and restoration of possession of the property in his favour but without any result. Ultimately, the writ petitioner filed Case No.300 of 1995 (Ka-25 Gulshan, Dhaka) under section 7(1) of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 before the First Court of Settlement, Dhaka. The case was contested by the Government, i.e., the writ respondent No.1. The First Court of Settlement allowed the case by its decision dated 30.11.1997 and ordered for exclusion of the property from the ‘Ka’ list of Abandoned Buildings and to restore possession of the same to the writ petitioner. But the writ respondents did not comply with the said decision inasmuch as the writ petitioner on 07.07.1998, 16.05.1999, 27.02.2001, 17.07.2003 and 23.03.2005 made representations to exclude the property from the ‘Ka’ list of Abandoned Buildings and to restore his possession. Thus, the respondent No.1, filing writ petition, obtained Rule.

3. The High Court Division by the impugned judgment and order made the said Rule absolute. Then the appellants have preferred this appeal getting leave.

4. Leave was granted to consider the submissions that the respondent Abdur Rouf earlier filed Settlement case No.45 of 1990 before the First Court of Settlement, Dhaka for exclusion of the disputed property from ‘Ka’ list of the abandoned properties and the said settlement case was dismissed. Thereafter, suppressing the said facts he filed another case before the Court of Settlement which was allowed and, thereafter, he filed instant writ petition and managed to get the impugned order which was a fraud upon the Court.

5. Mr. Murad Reza, learned Additional Attorney General, appearing for the appellants, submits that earlier the respondent Abdur Rouf, on behalf of the present respondent M/S. Hanif, instituted Settlement Case No.45 of 1990 and the Court of Settlement dismissed the said case and by suppressing the said fact, he again filed Settlement Case No.300 of 1995 and managed to get the order for exclusion of the suit property from ‘Ka’ list of abandoned properties which was a fraud so the subsequent order is a nullity

6. Mr. Mohd. Abdul Hai, learned Advocate-on- Record in his submission supported the judgment and order of the High Court Division.

7. It appears from the judgment and order passed in Settlement Case Nos.564 and 565 of 1988 and 45 of 1990 that all the cases were filed in respect of property appertaining to House No.49, CES(A), Gulshan, Road No.96, Gulshan Avenue, Dhaka for exclusion of the same from the ‘Ka’ list of the abandoned properties. The Court of Settlement dismissed those three cases by a common judgment and order dated 19.11.1995. Out of those three cases Abdur Rouf instituted Settlement Case No.45 of 1990. Said Abdur Rauf as Managing Partner of M/S. Hanif Brothers filed the aforesaid writ petition and Settlement Case No.300 of 1995.

8. It further appears from the judgment of those three cases including Settlement Case No.45 of 1990 filed by Abdur Rauf that the Court of Settlement observed that the Government allotted the disputed plot for accommodation of Ambassador of Afghanistan after repairing the building thereon spending huge money. In the said judgment, it was further observed that the original non-Bengali owner Abdur Rouf was neither in occupation of the disputed house nor he was found available in the country. Though Abdur Rouf was the petitioner of the said Settlement Case No.45 of 1990 but he did not to appear before the Court of Settlement personally and his whereabouts being not known, the property, in question, appeared to have been legally included in the list of the Abandoned Buildings. Considering all the aspects those three cases were dismissed. Thereafter, suppressing the said fact the respondent M/S. Hanif Brothers represented by its managing partner Abdur Rouf instituted the second Settlement Case and managed to get the order from the Court of settlement and, thereafter, filing this instant writ petition obtained the impugned direction.

9. Every person is answerable for the truth of his statement. There is a legal maxim that tell the truth, the whole truth and nothing but the truth. Neither in the Court of Settlement nor in the High Court Division the writ petitioner respondent stated that earlier he filed settlement case which was dismissed on merit. He was totally silent about his earlier case and the observation made by the Court of Settlement inasmuch as it was his duty to bring it to the notice of the Court. Such silence is fraud upon the Court because it was his duty to bring the truth the notice of the Courts. He concealed the material facts that there was a decision of the Court of Settlement that the disputed properly has been enlisted as abandoned property rightly and that the said case was brought by the respondent. His second case was barred by law since his claim was negatived by the previous decision. A judgment obtained by playing fraud is a nullity and non-est in the eye of law. The writ petitioner, while obtaining the judgment of the High Court Division, suppressed the material document which amounted to fraud.

10. Since the judgment and order of the Court of Settlement has been obtained by practicing fraud and pursuant to the said order, the writ petitioner-respondent managed to get the impugned judgment from the High Court Division, the same is a nullity.

11. Accordingly, we find substance in the appeal.

12. Thus, the appeal is allowed. The judgment and order of the High Court Division is hereby set aside.

Ed.

CIVIL APPEAL No.140 OF 2009

(From the judgment and order dated 05.04.2006 passed by the High Court Division in Writ Petition No.4309 of 2005.)

Secretary Ministry of Land & others Vs. Las Nur Miah [4 LNJ AD (2015) 41]

Case No: CIVIL APPEAL No. 132 OF 2002

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Rajik-Al-Jalil,Mr. Fakhrul Islam,,

Citation: 4 LNJ AD (2015) 41

Case Year: 2015

Appellant: The Secretary, Ministry of Land and others

Respondent: Las Nur Miah

Subject: Interpretation of Statute,

Delivery Date: 2014-03-05

APPELLATE DIVISION
(CIVIL)

Nazmun Ara Sultana, J

Syed Mahmud Hossain, J
Muhammad Imman Ali, J

Judgment on
05.03.2014

}
}
}

The Secretary, Ministry of Land and others
...Appellants
Versus
Las Nur Miah
...Respondents

Interpretation of Statute
The settled principle is that forfeiture clause should be strictly construed. When the Government is dealing with the citizen or the public in the matter of leasing out fishery for a particular period on certain terms and the terms are not expressed, the Government must be fair and clean in such dealing. Reading the forfeiture clause of the tender document it does not appear to us that it contained the expressed provision for payment of VAT. The expression ‘other tax’ would not include VAT because of the doctrine of ejusdam generis applicable in interpretation of statutes and documents. This doctrine is not only applicable in construction of statutory terms but also applicable in respect of terms used in contacts and other non-statutory terms. . . . (12, 13 and 14)

Thames and Mersy Insurance Company Vs. Hamilton, Fraser and Company [(1987) 12 App Cas 448,419] and Tillmanns and Company Vs. S.S. Knutsford Co. (1908) 2 K.B. 358 ref.

For the Appellants : Mr. Rajik-Al-Jalil, Deputy Attorney General, instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record.
For Respondent : Mr. Fakhrul Islam, Advocate-on-Record.

CIVIL APPEAL No. 132 OF 2002

JUDGMENT

Syed Mahmud Hossain, J:

This appeal, by leave, by the appellants, arises out of the judgment and order dated 02.12.1999 passed by a Division Bench of the High Court Division in Writ Petition No. 4660 of 1997 making the Rule absolute.

The facts involved in this appeal, in brief, are:
The tender was invited by the Deputy Commissioner, Sunamgonj for leasing out Bardai Castro Ganga Group Jalmahal for the year 1404-1406 B.S. The writ-petitioner and others participated in the tender invited for leasing out the Jalmahal and the writ-petitioner’s bid was the highest. On acceptance of the writ-petitioner’s bid, he was directed to deposit Tk.16,40,0000/- within three days from receipt of the letter dated 14.05.1997. The writ-petitioner by filing an application prayed for extension of time to deposit the lease money for the year 1404 B.S. and he was allowed time up to 24.05.1997. On 22.05.1997, the writ-petitioner approached the Revenue Deputy Collector, Sunamgonj, who directed the writ-petitioner to pay 15% VAT and 5% L.R. fund. On 22.05.1997, the writ-petitioner filed an application to the Additional Deputy Commi-ssioner (Revenue) stating that as per terms of the tender and the letter intimating acceptance of his bid, demand of 15% VAT is illegal and he requested the authorities to accept the lease money with 3% income tax. Having not received any reply of the letter dated 22.05.1997, the writ-petitioner submitted another letter to the Deputy Commissioner, Sunamgonj on 27.05.1997. On 08.05.1997, he received a letter intimating him that his prayer made in letter dated 27.05.1997 was rejected and that lease was cancelled on forfeiture of his earnest money.

The writ-petitioner thereupon moved the High Court Division in its writ jurisdiction challenging the legality of the action of the writ-respondent No.2 canceling the lease upon forfeiting the earnest money deposited at the time of submitting tender inviting bid for leasing out Bardai Castro Ganga Group Jalmahal and obtained Rule Nisi in Writ Petition No.4660 of 1997.

The writ-respondents contested the Rule by filing affidavit-in-opposition denying the material averments made in the writ petition.

Upon hearing the parities, a Division Bench of the High Court Division, by its judgment and order dated 02.12.1999 made the Rule absolute so far as it relates to the forfeiture of the security money amounting to Tk.1,64,000/- (one lac sixty four thousand) and the impugned order dated 08.06.1992 (Annexure-G) forfeiting the security money of the writ-petitioner was declared to have been passed without any lawful authority and the writ-petitioner was accordingly entitled to get back the money from the respondents.

Feeling aggrieved by and dissatisfied with judgment and order dated 02.12.1999 passed by the High Court Division, the writ-respondents as the leave-petitioners moved this Division by filing Civil Petition for Leave to Appeal No.838 of 2000, in which, leave was granted resulting in Civil Appeal No.132 of 2002.

Mr. Rajik-Al-Jalil, learned Deputy Attorney General, appearing on behalf of the appellants, submits that the High Court Division misconstrued clause-6 of the tender document and erred in holding that the writ-petitioner was not required to pay 15% VAT and as such, the impugned judgment should be set aside.

Mr. Fakrul Islam, learned Advocate-on-Record, appearing on behalf of the respondent, on the other hand, supports the impugned judgment, stating that, there is no scope for payment of 15% VAT.

We have considered the submissions of the learned Deputy Attorney General for the leave-petitioners, the learned Advocate-on-Record for the respondent, perused the impugned judgment and the materials on record.

At the very outset, it would be proper to go through the ground, on which, leave was granted as under:

“The High Court Division misconstrued Clause-6 of the tender document and erred in holding “But how the terms of the tender documents when there was no express provision in the forfeiture clause for payment of VAT along with the lease money” and this has resulted an error in the decision of the case on its merit.”

The writ-petitioner participated in the tender by depositing Tk.1,64000/- as security money and became the highest bidder. On 15.05.1997, the bid of the writ-petitioner was approved. The writ-respondent No.3, Additional Deputy Commissioner (Rev), Sonamgonj, issued a letter dated 14.05.1997 asking the writ-petitioner to deposit Tk.1,64000/- within 3 days of the receipt of the letter. The writ-petitioner filed an application praying for time to deposit the entire money and the prayer was allowed up to 24.05.1997. On 22.05.1997, the writ-petitioner went to respondent N.4 and offered to deposit the bid money along with 3% income tax when writ-respondent No.4 verbally asked the writ-petitioner to pay 15% VAT and 5% L.R. fund. Since there was no express provision in the tender document for payment of 15% VAT, he requested writ-respondent Nos.3 and 4 for exemption of payment of VAT but to no avail.
It is pertinent to quote clause-6 of the tender document, which is under:

“নির্বাচিত দরপত্র দাতাকে সিদ্ধামত গ্রহনের দিনে প্রথম বছরে ইজারা মূল্যের ৫০% এবং ৩% উৎস করসহ সরকারের অন্যান্য কর প্রদান করতে হবে। অবশিষ্ট্য ৫০% ইজারা মূল্য ঐদিন থেকে ৭(সাত) দিনের মধ্যে পরিশোধ করতে হবে। অন্যথায় দাদনের টাকা/জমাকৃৃত টাকা ইত্যাদি বাজেয়াপ্ত করা হবে এবং দরপত্র দাতার বিরুদ্ধ আইনানুগ ব্যবসহা গ্রহন করা হবে এবং সংশ্লিষ্ট্য মহালটি পুনরায় ইজারা প্রদানের কার্যএুম গ্রহণ করা হবে এবং সংশ্লিষ্ট্য মহালটি পুনরায় ইজারা প্রদানের কার্যএুম গ্রহন করা হবে।”

The only questions to be resolved whether the writ-petitioner was liable to pay 15% VAT. The settled principle is that forfeiture clause should be strictly construed. When the Government is dealing with the citizen or the public in the matter of leasing out fishery for a particular period on certain terms and the terms are not expressed, the Government must be fair and clean in such dealing. Reading the forfeiture clause of the tender document it does not appear to us that it contained the expressed provision for payment of VAT.

The expression ‘other tax’ would not include VAT because of the doctrine of ejusdam generis applicable in interpretation of statutes and documents. Dealing with this doctrine, Lord Halsbury L.C. states in Thames and Mersy Insurance Company Vs. Hamilton, Fraser and Company [(1987) 12 App Cas 448,419] as follows:

“Two rules of construction now firmly established as part of our law. One is that words, however general, may be limited in respect to subject matter in relation to which they are used. The other is that general words may be restricted to the same genus as the specific words that precede them.”

This doctrine is not only applicable in construction of statutory terms but also applicable in respect of terms used in contacts and other non-statutory terms. Referring to the case of Tillmanns and Company Vs. S.S. Knutsford Co. (1908) 2 K.B. 358, Odgers in his book, the Construction of Deeds and Statutes, 5^th Ed. at page 184, furnished an example stating, “A ship was to be relieved from liability for not delivering cargo at a certain port or ports if it was in the opinion of the master unsafe to do so ‘in consequence of war, disturbance or any other cause’. The question arose whether a port inaccessible in the opinion of the master through ice was within the exception. It was held not to be so:“any other cause” must be construed to apply to causes ejusdam generis or similar to ‘war or disturbance’.”

In the light of the findings made before, we are of the view that the writ-petitioner is not required to pay 25% VAT. The findings and decision arrived at by the High Court Division having been based on proper appreciation of law and fact do not call for interference. Accordingly, the appeal is dismissed without any order as to costs.

Ed.

Reference: 4 LNJ AD (2015) 41

Secretary, Ministry of Land and others Vs. Abu Nur Mohammad Zafar and others, II ADC (2005) 87

Case No: Civil Appeal No. 20 of 2001

Judge: Md. Hamidul Haque,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. M. Amir-Ul Islam,Fida M. Kamal,,

Citation: II ADC (2005) 87

Case Year: 2005

Appellant: Secretary, Ministry of Land and others

Respondent: Abu Nur Mohammad Zafar and others

Subject: Constitutional Law,

Delivery Date: 2003-07-21

Supreme Court
Appellate Division
(Civil)

Present:
KM Hasan, CJ.
Mohammad Fazlul Karim, J.
Md. Hamidul Haque, J.

Secretary, Ministry of Land and others
.................Appellants
Vs.
Abu Nur Mohammad Zafar and others
.................Respondents

Judgment
July 21, 2003.

The Constitution
Article 102 (2)(a)(ii)
We have found that the writ petitioner-respondents are not aggrieved persons and at the same time we have found that their rights will not be in any way affected if the vacant posts of kanungos are filled up by recruitment under the existing rules and pay scale. ….. (14)

Lawyers Involved:
Fida M. Kamal, Additional Attorney General, instructed by Firoj Shah, Advocate-on-Record - For the Appellants
Abdul Wadud Bhuiyan, Senior Advocate, Instructed by Md. Aftab Hossain, Advocate-on-Record - For Respondent Nos. 1-5
Amir-ul-Islam, Senior Advocate (Mrs. Tania Amir, Advocate with him) instructed by A. K. M. Shahidul Huq, Advocate-on-Record - Intervener

Civil Appeal No. 20 of 2001
(From the Judgment and Order dated 11.12.1999 passed by the High Court Division in Writ Petition No. 3924 of 1998)

JUDGMENT

Md. Hamidul Haque J.

1. This appeal by leave is against the judgment and order passed by a Division Bench of the High Court Division in Writ Petition No. 3924 of 1998.

2. The present respondents were the writ petitioners and Rule was issued calling upon the writ respondents to show cause as to why the advertisement made in the Dainik Janakanta on 19.2.1997 (Annexure-A to the writ petition) for recruitment of Kanungos and formation of a committee to scrutinize and examine the applications received in response to the advertisement, should not be declared to have been made and constituted without lawful authority and is of no legal effect and further why the respondents should not be directed to do the needful for implementation of the gazette notification dated 10.7.1997 (Annexure-J to the writ Petition).

3. The respondents are all kanungos and their case is that in a meeting of the National Land Requirement Council of the Ministry of Land held on 30.12.1989 it was decided that each and every Upazila shall have Assistant Land Officer from those who were working as Kanungoe and the post of said officer shall be upgraded as second class gazetted post. Subsequently, after some inter-ministerial communications and deliberations final decisions was taken to upgrade the post of kanungo as second class gazetted post and ultimately gazette notification was made on 10.7.1997 upgrading the post of kanungo to the second class gazetted post with the proposed pay scale at Tk. 2300-4480.

4. Further, case of the respondents is that though the post of Kanungo was upgraded to the second class gazetted post, the Ministry of Finance did not give effect to the proposed pay scale. In the meantime, the Ministry of land invited applications for appointing 106 Kanungos instead of implementing the decision of upgrading the post of kanungo to the second class gazetted post in accordance with the gazette notification dated 10.7.1997. Before publishing the advertisement, Public Service Commission was approached for taking necessary steps for recruitment of kanungos since the post of kanungo was upgraded as second Class Post but the Public Service Commission, by its letter dated 25.2.1998, informed the Ministry concerned that after upgrading the post of kanungo from 3rd Class to Second Class Gazetted post, Recruitment Rules Required to be amended. The respondents claimed that the Ministry did not take any steps for necessary amendment of the Recruitment Rules. They further claimed that without giving effect to the pay scale and without amending Recruitment Rules, direct recruitment to the post of kanungo would be unlawful and this attempt of recruitment was made with an ulterior motive to frustrate the notification regarding upgrading of the post of kanungo to the second class gazetted post.

5. The respondents of the writ petition appeared by filing affidavit-in-opposition. Their case is that 106 post of kanungo fell vacant and the Government was sustaining loss due to difficulties in collection of land revenue in the absence of required number of kanungos and as such the Government took steps for filling up the vacant posts. For the same purpose, the advertisement was made and steps were taken for recruitment of 106 kanungo. Father case is that the question of giving effect to the gazette notification regarding up gradation of the post of kanungo was not possible as the Ministry of Finance did not approve the decision of upgrading post of kanungo. It is also claimed that the proposed recruitment would not affect the interest of the writ petitioners in any way and as such they were not aggrieved person and the writ petition was not maintainable.

6. The High Court Division after considering the legal position held that as the upgradation was made in pursuance to the gazette notification dated 10.7.1997, recruitment to the post of kanaungo In the earlier scale of 3th class post will not be lawful because after the upgradation, the post kanungo became second class post and recruitment to such post can only be made by the public Service Commission. The High Court Division also directed the respondents to take necessary steps in the light of the gazette notification dated 10.7.1997 to give effect to the matter and also directed the respondents to take steps in the matter of upgradation to second class gazetted post as spelt out by the public Service Commission in its letter dated 25.2.1998. The High Court Division also gave a time limit of 90 days from the date of making an application by the petitioners to the respondents attaching certified copy of the judgment.

7. Leave was granted to consider whether gazette notification about upgrading the post of kanungo with the new scale confers any right in favour of the respondent Nos. 1-5 (that is writ petitioners) and whether the advertisement for recruitment of kanungo has affected the right of the respondents in any adverse manner and whether they are aggrieved persons.

8. Mr. Fida M. Kamal, the learned Additional Attorney General appeared on behalf of the appellants, that is the Secretary Ministry of land and others. He has mainly confined his argument to the point that the respondents have not in any way been affected by the advertisement for recruitment of 106 kanungos. He has repeated the argument which was advanced before the High Court Division that because of the vacancy in the above number of posts of kanungo the Government was sustaining loss in revenue collection. He has argued that if in view of the gazette notification dated 10.7.1997, the post of kanungo is finally upgraded by implementing the pay scale, the respondents will not be in any way deprived nor their rights would be affected if the recruitments are made now before giving full effect to the above gazette notification regarding up gradation of the post of kanungo to the Second Class Gazetteed Post. So, Mr. Fida Kamal has emphasized on the point that the respondents will not be affected by the recruitment in question and as such they are no aggrieved persons. So, according to him the writ petition was not at all maintainable.

9. Mr. Abdul Wadud Bhuiyan the learned Senior Advocate who appeared on behalf of the respondent Nos. 1-5, has supported the judgment and order of the High Court Division. His main argument is that by the gazette notification dated 10.7.1997 the post of kanungo was upgradaed to second class post and as such the recruitment of any kanungo under the previous scale of 3rd class post will be totally illegal. He has given emphasis on the point that after the upgradation of the post to second class post, any recruitment to that post may be made only through public service Commission and recruitment if made directly will be totally legal. However, Mr. Bhuiyan could not give any satisfactory reply as to how the respondents will be affected if the vacant posts of kanungos are filled up in pursuance to the advertisement in question. Mr. Bhuiyan tried to say that such recruitment will make the upgradation complicated and such recruitment ultimately may frustrate the upgradation.

10. We have perused the gazette notification, which is Annexure-J of the writ petition (the photo copy of this Annexure-J is page 87). The same has been reproduced below:-

তারিখ, ২৬ শে আষাঢ় ১৪০৪/ ১০ ই জুলাই ১৯৯৭
নং ভুমঃ/শ-১২-৩২/৯০-১৯৮ সরকার বানুনগো পক্ষকে দ্বিতীয় শ্রেণীর গেজেটেড পদ হিসাবে উন্নীত করিতে ও বর্তমান পদদাবিগণকে দ্বিতীয় শ্রেণিতে স্থাপন করিতে সম্মতি প্রদান করিয়াছেন। পদটির পূর্বের বেতন স্কেল ও মর্যাদা এবং উন্নীত বেতন স্কেল ও মর্যাদা নিম্নরুপঃ

পদের নাম পূর্বের বেতন ও স্কেল পূর্বের মর্যাদা

কানুনগো ১৪৭৫-৩১৫০ তৃতীয় শ্রেণি (নন-গেজেটেড)

11. From paragraph 2 (two) of this notification we find that the enhanced pay scale for the upgraded post of kanungo would be given effect after approval of the finance Division of the Ministry of Finance. It is admitted that no such approval has yet been given by the Ministry of finance. From the letter of the Ministry of Land dated 24.7.1997 we find that the Ministry of land wrote to the Ministry of Establishment for filling up the vacant posts of kanungo and the Ministry of land requested the Ministry of Establishment for giving advice to the Public Service Commission for recruitment of kanungos as the post has been upgraded to second class. It appears that pubic Service Commission in reply wrote to the Ministry of Land that in order to make recruitment in the Second Class Gazetted Post, relevant Service Rules required to be amended. Admittedly, the relevant service rules has not yet been amended. So, from the above we find that neither the Ministry of Finance has given any approval to enhance pay scale nor service rules has been amended. However, this is clear from the gazette notification that the post of kanungo has been upgraded to Second Class Gazetted post.

12. Mr. Abdul Wadud Bhuiyan however, has tried to impress upon us that if the appointments are now made without giving the pay scale and without amendment of service rules, ultimately complication will arise and it may hamper upgradation of the post of Kanungos. We cannot agree with this view of the learned Counsel. Filling up the vacant posts of kanungos under the existing rules cannot, or will not in any way hamper the upgradation and by such recruitment, the interest of the respondents will not be affected adversely or in any way. If the enhanced pay scale is approved by the Ministry of Finance and Service rules are amended, all the respondents will get the benefits of such upgradation. So, we are convinced that the respondents will not be affected in any way due to recruitment of kanungos and as such they are not aggrieved persons.

13. Abdul Wadud Bhuiyan has emphasized that as the post has already been upgraded, direct recruitment rules will be illegal and as such the respondents are entitled to give relief under article 102(2)(a)(ii) of the constitution. We again cannot agree with the above view of Mr. Abdul Wadud Bhuiyan. The relief under the above provision of the constitution cannot be sought by a person who is not aggrieved. We have found that respondents i.e. the writ petitioners are not aggrieved persons. As they are not aggrieved persons, they cannot seek any relief under article 102(2)(ii) of the constitution.

14. In the above, we have found that the writ petitioner respondents are not aggrieved persons and at the same time we have found that their rights will not be in any way affected if the vacant posts of kanungos are filled up by recruitment under the existing rules and pay scale. However, we may mention here that as regards the question of upgadation of the post of kanungos to the Second Class Post after gazette notification dated 10.7.1997 though a finality has been given but only two things are remaining, one is approval of the proposed pay scale by the Ministry of Finance and the other is necessary amendment in the recruitment rules in the light of upgradation of the post of kanungos to the second class gazetted post. As upgradation has been finally been made by the gazette notification dated 10.7.1997 the Government cannot remain idle for indefinite period to give effect to the said gazette notification. Already more than 6(six) years have elapsed meanwhile. As the appeal is going to be allowed, the government will now be able to make recruitment of kanungos to fill up the vacant posts. This shall not however, preclude the Government from giving effect to the gazette notification dated 10.7.1997 and making necessary amendment in the recruitment rules or service rules.

The appeal is allowed with the above observations and the judgment and order dated 11.12.1999 passed by the High Court Division in Writ Petition No. 3924 of 1999 are set aside.

Ed.

Secretary, Ministry of Works and another Vs. Md. Yusuf Ali Khan and others, 1 ADC (2004) 312

Case No: Civil Appeal No. 38 of 1994

Judge: KM Hasan ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Abdur Razaque Khan,,

Citation: 1 ADC (2004) 312

Case Year: 2004

Appellant: Secretary, Ministry of Works and another

Respondent: Md. Yusuf Ali Khan and others

Subject: Limitation, Law of Contract,

Delivery Date: 2002-08-21

Supreme Court
Appellate Division
(Civil)

Present:
Mainur Reza Chowdhury CJ
KM Hasan J
Md. Fazlul Haque J

Secretary, Ministry of Works and another
……..……..........Appellants
Vs.
Md. Yusuf Ali Khan and others
........................Respondents

Judgment
August 21, 2002.

The Limitation Act, 1908
Article 113
The Contract Act, 1972
Section 46
Discrepancy in the signatures on the two documents in how they are spelt but we also found similar discrepancy in the signatures of the respondent No. 2 on the same document. It appears to us that the lady was in the habit of using different spelling in her signatures. Therefore the discrepancy in the signatures in our view does not affect the genuineness of the signatures. …. (16)

Lawyers Involved:
Abdur Razaque Khan, Additional Attorney General (Faisal H. Khan, Assistant Attorney General with him) instructed by Md. Ataur Rahman Khan, Advocate-on-Record-For the Appellants.
Syed Ishitaque Ahmed, Senior Advocate and Mahmudul Islam, Senior Advocate (Probir Neogi), Advocate, with him) instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondents Nos. 1 & 3.
Not represented-Respondent No. 2.

Civil Appeal No. 38 of 1994.
(From the judgment and order dated 3.8.1993 passed by the Appellate Division in First Appeal No. 52 of 1990).

JUDGMENT

KM Hasan J.

This appeal by special leave is directed against the judgment and order dated 3.8.1993 of the High Court Division passed in First Appeal No. 52 of 1990 filed by the respondents. The respondent No. 1 as plaintiff instituted Title suit No. 135 of 1985 in the First Court of Subordinate Judge, Dhaka, for Specific Performance of Contract on the averments, inter alia, that the respondent No. 2, Begum Mariam Iqramullah Khan, executed a deed of agreement in favour of the respondent No.1 on 11.7.1970 for sale of land measuring 10 (ten) kathas 5 (five) chateaus, more or less, situated in the Gulshan Model Town of the Dhaka Improvement Trust for a Consideration of Tk. 90,000/- (Taka Ninety thousand). Out of total consideration money the respondent No.1 paid Tk. 50,000/- (Taka Fifty thousand) as earnest money on 11.7.1970. It was stipulated in the agreement for sale that after obtaining necessary clearance certificate from Dhaka Improvement Trust, She would execute and register a deed of sale in favour of the plaintiff respondent on acceptance of the balance consideration of Tk. 40,000/- (Taka forty thousand). Due to disturbance that followed later on the respondent No. 2 Could not fulfill her part of the contract and in the last part of 1975 she gave an assurance that she would do everything for the registration of deed of sale and accepted further sum of Tk. 20,000/- (Taka twenty thousand) from the plaintiff respondent on 19.12.1975 against receipt singed by her on the back of the agreement for sale. In course of time she took another sum of Tk. 15,000/- (Taka fifteen thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement on 29.11.1979. Thereafter the respondent No. 2 further took an amount of Tk. 2,000/- (Taka two thousand) from the plaintiff respondent against receipt signed by her on the back of the agreement. Thus the defendant respondent altogether received a sum of Tk. 87,000/- (Taka eighty seven thousand) out of Tk. 90,000/- (Taka Ninety Thousand) leaving a balance of Tk. 3,000/- (Taka three thousand) which as actually offered to her at that time. But she flatly refused to accept it and demanded more than what was agreed upon in flagrant violation of the aforesaid deed of agreement. Hence the plaintiff was constrained to institute Title Suit No. 135 of 1985 before the learned Subordinate Judge, Dhaka, for Specific Performance of Contract by directing the defendant No. 1 to execute and register a deed of sale in respect of the suit property in favour of the plaintiff.

2. The respondent No. 2 Mrs. Mariyam Iqramullah Khan, filed a written statement stating, inter alia, that the plaintiff agreed to pay a sum of Tk.10, 000/- (Taka Ten thousand) more than the amount mentioned in the agreement on account of increase of price but the plaintiff in violation of his own word refused to pay more than Tk. 3,000/- (Taka Three thousand) and as such it was the plaintiff who was at fault and not the defendant No. 1 as alleged.

3. The respondent No. 3, Dhaka Improvement Trust, filed a written statement denying the material allegations contained in the plaint and stating, inter alia, that DIT does not recognize any agreement to transfer DIT lands without prior permission and without paying the transfer fee as per mandatory provisions stipulated in the lease deed.

4. The defendants No. 3 Ministry of Public Works and Urban Development filed a written statement denying the material allegations contained in the plaint and stating, inter alia, that at the time of promulgation of President's Order No. 16 of 1972 the original owner of the house was not in Bangladesh. The respondent No. 2 also lost possession and control of the house and the house was vested in the Government as an abandoned property. Immediately after independence the suit house was taken under the control of the police department and used as police outpost and is still continuing to be under the control of the police department. However, the suit property was not included in the gazette under Ordinance LIV of 1985 due to a mistake.

5. The learned Subordinate Judge after hearing the parties arrived at the findings that the claim of physical possession of the suit property by the plaintiff is not a fact, the suit is barred by limitation and bainapatra, Ext.1 is not a genuine document. Upon these findings he dismissed the suit by his judgment and order dated 5.1.1990. Against that judgment the plaintiff filed first Appeal No. 52 of 1990 before the High Court Division and the High Court Division after hearing the parties and discussing the oral and documentary evidence adduced by the parties, allowed the appeal reversing the judgment of the Court below. It compared the signatures of the respondent No. 2 in Exts. 1 and 2 and came to the conclusion that they are identical and of the respondent No. 2.

6. It further came to the conclusion that since the signatures on the agreement, Ext. 1 and part payment of consideration money were proved by the witnesses of the plaintiff, the exhibit is a genuine document. It also found that handing over all the original documents of the property as well as possession of the property by the respondent No. 2 to the respondent No.1 are the important elements of part performance of the contract by the respondent No. 2.

7. It further found that the defendant appellants failed to produce any papers before the court to show that police outpost had been set up by the Government or that the suit house was listed as an abandoned property and the possession of it was taken over by the Government.

8. On the other hand according to the High Court Division PWs have proved the presence of defendant respondent in this country in 1775, 1979 and 1982. Therefore, it concluded that the question of treating the case property as an abandoned property is absurd.

9. Being aggrieved the defendant appellants moved Civil Petition for leave to appeal No. 78 of 1994 before this Division against the judgment and order dated 3.8.1993 and leave was granted on 19.6.1994 to consider the following grounds-

"Mr. B Hossain, learned Deputy Attorney General appearing for the Government defendant appellants submits first, that clause 22 and 23 of the registered lease deed in respect of the suit house, if read together, imply that prior written permission of DIT is necessary in execution of a bainapatra for sale and the High Court Division fell into an error of law in overlooking the said provision and holding that the stage for obtaining permission has not yet reached."

He next contends that the High Court Division was wholly wrong in allowing the appeal and decreeing the suit for Specific Performance of Contract although the plaintiff, who claimed possession in the suit land in part performance of the contract dated 11.7.1970 by filing suit on 30.9.1984 utterly failed to prove his possession.

Lastly, he submitted that the alleged agreement was executed on 11.7.1970 and the suit was filed on 30.9.1984 the learned Subordinate Judge found the suit to be barred by limitation and the High Court Division erred in law in allowing the appeal after holding that the suit is not barred by limitation. He also submits that several other material findings of the trial court have not been reversed by the High Court Division."

10. Mr. Abdur Razaque Khan, the learned Additional Attorney General appearing for the appellants as an introductory remark submits that the leave granting order has kept almost every question relating to the suit property open to be decided by this Division.

11. Mr. Mahmudul Islam, the learned Counsel appearing for the respondents at the very initial stage argues that the High Court Division, being the last court of finding of fact, should not go into the consideration of adequacy or inadequacy of evidence unless the appellants can show misreading of evidence or failure to take into consideration material facts resulting in error of law.

12. Mr. Abdur Razaque Khan, the learned Additional Attorney General, argues that if clauses 22 and 23 of the lease deed in respect of the suit house are read together then they will imply that prior written permission of DIT is necessary in Execution of an agreement for sale and the High Court Division failed to consider these provisions. A reading of clauses 22 and 23 of the lease agreement will further show that thirty days notice to DIT for transfer of the lease property is necessary.

13. In reply, the learned counsels for the respondents have submitted that the transfer has not yet been completed. Therefore, the question of not taking permission from the DIT for transfer does not arise. Permission of DIT can yet be taken. It appears to us that if the transfer was completed the title suit for specific performance would not have been filed by the plaintiff respondents. The question of violation of clauses 22 and 23 of the lease will arise only in a case where transfer of DIT land is completed.

14. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the plaintiff respondents failed to prove their possession in the suit house though they claimed possession in part performance of the contract. He submits that it is not supported by evidence that the respondent No. 2 after executing the bainapatra put the plaintiff respondents into possession. No one has seen the plaintiff respondents in possession for a day, nor is it ever established that the defendant respondent was in possession at the time of liberation. On the other hand there is a police outpost on the suit house which was found to be an abandoned property. It is further argued on behalf the appellants that except the Bainapatra and oral evidence no other evidence like WASA receipt, municipality tax, sewerage receipt etc. which are generally produced before the court in such cases were produced in this case in support of the plaintiff respondents claim of possession.

15. It appears from the record that the plaintiffs' claim, of a police outpost in the suit property is not supported by any documentary evidence police Regulations 335, 355, 373, 375 and 1251 require different type of registers, like inspection register, record of land etc to be kept in the police post and the police station. But no such register was produced before the court. Moreover, the High Court Division being the last court of facts have come to a definite finding as to the possession of the plaintiff respondent. This court will not interfere with such finding of facts unless it can be shown that there is misconstruction of document and evidence. As we said before, this Court will not go into consideration of adequacy and inadequacy of evidence.

16. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the High Court Division erred in law, in allowing the appeal, by not comparing the signatures of the vendor respondent No. 2 on Exts. 1 and 2 by expert, especially when the trial court held that the signatures of the vendor on the two documents did not tally. It appears from the judgment of the High Court Division that the Judges of the High Court Division themselves compared the signatures of the respondent No. 2 on Exts. 1 and 2 and came to the conclusion that the signatures were identical. However in view of the above submission we examined the signatures of the respondent No.2 on the aforementioned two documents and other documents. It is true that we found discrepancy in the signatures on the two documents in how they are spelt but we also found similar discrepancy in the signatures of the respondent No. 2 on the same document. It appears to us that the lady was in the habit of using different spelling in her signatures. Therefore the discrepancy in the signatures in our view does not affect the genuineness of the signatures of the vendor respondent No. 2 on the documents.

17. It is stated by the defendant No. 3, Ministry of public works and Urban Development, that by mistake the suit property was not included in the list of abandoned properties under Ordinance 54 of 1985. It is also argued before us that since the Title Suit No. 135 of 1985 for specific performance was pending the suit property was not included in the list of the abandoned properties. This argument is not acceptable to us as the suit was for specific performance, not challenging the abandoned nature of the suit property. A suit for specific performance is regarding controversy between the two parties whereby one of the parties pray for execution of necessary documents in his favour. Therefore pending of such a suit cannot be pleaded as a bar to the inclusion of the suit property in the list of the abandoned properties under ordinance 54 of 85. In view of the above a suit for specific performance of contract can not be a suit in contemplation under proviso A of Section 5 of the Ordinance. The suit property was never included in the abandoned property list though the time for inclusion of new properties in the list was extended till 1988.

18. The learned Additional Attorney General argues that the trial court conclusively found the suit property to be an abandoned property. He also argues that the abandoned nature of the property is very much apparent from various facts. In this connection he has referred to a survey report. The survey report is not regarding that particular house but regarding many other houses all over the county, then again the survey was not conducted in presence of the plaintiff respondents. Therefore the survey report cannot be relied upon since no evidence is produced by the appellants before us to show that the suit building was ever included in the list of abandoned properties the defendant appellants are stopped by law from claiming it to be an abandoned property.

19. Mr. Abdur Razaque Khan, the learned Additional Attorney General then argues that the trial court found the suit is barred by limitation but the High Court Division erred in law in deciding that the suit is not barred by limitation overlooking the fact that the agreement for alleged sale deed is dated 11.7.1970 whereas the suit was filed 14 years thereafter on 30.9.1984.

20. He argues that under Article 113 of the Limitation Act the period within which a suit shall have to be filed is three years. By referring to the bainapatra he submits that Tk. 50,000/- is alleged to have been paid to the vendor at the time of its singing on 11.7.1970, next payment of Tk. 20,000/- was made in the year 1975, Tk. 15,000/-was paid in the year 1979 and Tk. 2,000/-in the year 1982. One of the conditions of the bainapatra was that the vendor will get the income tax clearance certificate and permission from DIT for the execution of the sale deed. But no application has yet been made for getting the income tax clearance and permission from DIT. He argues that under section 46 of the contract Act this suit should have been filed within a reasonable time in reference to getting certificate from the Income Tax authority and permission from DIT for the transfer of the suit property and according to him, the reasonable time cannot extend up to 14 years. Therefore, the suit is barred by limitation and the High Court Division was wrong in holding that the suit is not barred by limitation under Article 113.

21. According to the Article the limitation begins to run from "the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused". It appears that the bainapatra does not give any specific time for the payment of the rest of the amount. Therefore the time limitation will start from the date of refusal expressly or by conduct when there is no express refusal. In this case there is no such conduct which might be interpreted as refusal. On the other hand the respondent No. 2 continued to take money from time to time and payment was made till 1982. Moreover, Article 113 of the Limitation Act is to be strictly applied. It has nothing to do with reasonable time, Reasonable time for performance of contract under section 46 of the Contract Act, as referred to by the Additional Attorney General, is an alien conception to the limitation prescribed in the limitation Act which does not contemplate any reasonable time, therefore, in our view the suit is lot barred by limitation.

In consideration of the above discussion we lo not fined any substance for allowing the appeal.

The appeal is dismissed without any order of costs

Ed.

Secretary, National Sports Council Vs. Yousuf Jamil & ors., (Syed Mahmud Hossain,J)

Case No: CIVIL APPEAL No. 82-83 of 2013

Judge: Surendra Kumar Sinha, CJ Syed Mahmud Hossain, J Mirza Hussain Haider, J

Court: Appellate Division ,

Advocate: Mr. Mahbubey Alam, Senior Advocate (Mr. Shah Monjurul Hoque, Advocate with him), instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record. ,

Citation: 2018(2) LNJ (AD)

Case Year: 2017

Appellant: Secretary, National Sports Council

Respondent: Bangladesh Cricket Board and another.

Subject: General Clauses Act

Delivery Date: 2019-12-02

APPELLATE DIVISION

(CIVIL)

Surendra Kumar Sinha, CJ

Syed Mahmud Hossain, J

Mirza Hussain Haider, J

Judgment on

26.07.2017

}

Secretary, National Sports Council.

. . .

Bangladesh Cricket Board and another.

. . .

=Versus=

Yousuf Jamil Banu and others.

. . .

General Clauses Act (X of 1897)

Section 21

National Sports Council Act (XLVII of 1974)

Section 20A(a)

Under section 21 of the General Clauses Act while the power to add, to amend, vary or rescind notifications, orders, rules or bye-laws are available such power does not include the authority to take away validly acquired rights. Under section 21 of the General Clauses Act, the power conferred on NSC is not plenary power so as to make the power of BCB nugatory so far the amendment of the constitution is concerned unless such power is expressly conferred by the parent statute. The power conferred under Article 11.1 read with Article 26 of the Constitution is derived from the Act of 1974 and NSC had delegated the power to BCB to amend its constitution. By the memo dated 21.01.2012 NSC gave direction to BCB to include the proposed provisions in the Constitution of BCB and pursuant thereto BCB included those proposals of NSC and sent two copies of its constitutions to NSC for approval. NSC cannot do so in exercise of power under section 21 of the General Clauses Act ignoring the procedure for amendment of the constitution as contained in Articles 11.1 and 26. NSC, in fact, has usurped the power of BCB to amend its Constitution. Therefore, the High Court Division was justified in making the Rule absolute. Having considered all aspects of the case, we are of the view that the BCB is at liberty to amend its Constitution at any time as per provision of Article 11.1 and Article 26 of its Constitution so that the requirements of International Cricket Council is met subject to the approval of NSC. . . . (23 to 26)

: Mr. Mahbubey Alam, Senior Advocate (Mr. Shah Monjurul Hoque, Advocate with him), instructed by Mrs. Madhumalati Chowdhury Barua, Advocate-on-Record.

: Mr. Rokanuddin Mahmud, Senior Advocate (with Mr. Sheikh Fazle-Noor-Taposh, Advocate), instructed by Mvi. Md. Wahidullah, Advocate-on-Record.

: Mr. A. M. Aminuddin, Senior Advocate (Mr. Mahbub Shafiq, Advocate with him), instructed by Mrs. Shirin Afroz, Advocate-on-Record.

JUDGMENT

Syed Mahmud Hossain, J: Both the appeals by leave are directed against the judgment and order dated 27.01.2013 passed by a Division Bench of the High Court Division in Writ Petition No. 16831 of 2012 making the Rule absolute.

2. The facts, relevant for the purpose of disposal of both the appeals, in a nutshell, are:

On 23.01.2012, the Executive Committee of the Bangladesh Cricket Board (BCB) called an Extra-Ordinary General Meeting (EGM) on 1^st March, 2012 for considering amendment of its constitution. In the said EGM, the members present approved the amendment of the constitution of BCB. Accordingly as per provisions of Article 11.1 of the Articles of Association, the BCB by letter dated 28^th August, 2012 sent the proposed amendment to the National Sports Council (NSC) and sought final approval. The NSC upon detailed study of the proposed amendment, by the letter dated 21^st October, 2012 and 22^nd November, 2012 incorporated certain amendments to the proposed constitution of BCB and directed BCB to include the said amendments in its constitution and thereafter, to forward two copies of the amended constitution to the NSC for approval. As per direction of the NSC, BCB inserted the said amendment in its constitution and forwarded the same to NSC. Thereafter, NSC by Memo No. GbGm/wm/120/3/‡Rm/3324 dated 29^th November, 2012 approved the proposed amendment to the constitution of BCB.

3. Challenging the impugned amendment and the final approval of the Constitution (NWea¿») of the BCB so made by writ-respondent No.4 vide memo No. GbGm/wm/120/3/‡Rm/3324 dated 29.11.2012 (Annexure-H), the writ-petitioners filed an application under Article 102 of the Constitution of Bangladesh and obtained Rule Nisi in Writ Petition No. 16831 of 2012.

4. Writ-respondent Nos.3 and 5 contested the Rule by filing an affidavit-in-opposition controverting the material statements made in the writ-petition. Their case, in short, is that the BCB being an affiliated body of the NSC, NSC is legally authorized under section 20A(a) of the National Sports Council Act, 1974 (in short, Act of 1974) to frame “model constitution” for all or any of the organizations affiliated to it. It has further been stated that in compliance with the provision of Article 26 of the constitution of BCB, the impugned amendment has been made and as such, allegation of non-compliance with the aforesaid provision does not arise at all. It has also been stated that the amended constitution has been made as per instructions and standard model of the International Cricket Council and that the present ad-hoc committee of BCB is discharging its functions accordingly as per amended Constitution of the BCB. In other words, the said impugned amendment has already been acted upon.

5. The learned Judges of the High Court Division upon hearing the parties by the judgment and order dated 27.01.2013 made the Rule absolute and declared the impugned amendment of BCB approved by Annexure-H to have been made without lawful authority.

6. Feeling aggrieved by and dissatisfied with impugned judgment and order passed by the High Court Division, writ-respondent Nos.5, Secretary, NSC as the leave-petitioner filed Civil Petition for Leave to Appeal No.573 of 2013 and writ-respondent No.6, BCB and another filed Civil Petition for Leave to Appeal No.431 of 2013 before this Division and obtained leave in both the civil petitions on 25.07.2013, resulting in Civil Appeal No.82 and 83 of 2013.

7. Mr. Mahbubey Alam, learned Senior Advocate, appearing on behalf of the appellant (NSC) of Civil Appeal Nos.82 of 2013, submits that BCB is an affiliated body of NSC and as per provision of section 20A(a) of the Act of 1974, the authority can frame model constitution for all or any of the organizations affiliated to it and as such there is no illegality in amending the constitution of the BCB but the High Court Division without considering the same made the Rule absolute and as such, the impugned judgment should be set aside. He further submits that the High Court Division failed to appreciate that a mere Article of the Articles of the Association of BCB, namely, Article 26 cannot curtail the power of National Sports Council (NSC) under the Act of 1974 and as such, the impugned judgment is not sustainable in law. He then submits that the High Court Division erred in law in failing to appreciate that section 20A(a) of the Act of 1974 read with section 21 of the General Clauses Act and Article 11(1) of the Constitution of BCB has empowered the NSC to frame and also amend the constitution of BCB and as such the impugned judgment is not sustainable in law.

8. Mr. Rokanuddin Mahmud, learned Senior Advocate, appearing on behalf of the appellant (BCB) of Civil Appeal No.83 of 2013, submits that the amendment of the constitution has been made as per instruction of the NSC and the present ad-hoc committee of BCB is discharging its function as per amended constitution of BCB.

9. Mr. A.M. Aminuddin, learned Senior Advocate, appearing on behalf of the writ-petitioner-respondents of both the appeals, supports the impugned judgment delivered by the High Court Division.

10. We have considered the submissions of the learned Senior Advocates of both the sides, perused the impugned judgment and the materials on record.

11. NSC is an autonomous body constituted under National Sports Council Act, 1974 (Act No. XLVII of 1974) (in short, the Act of 1974). The Bangladesh Cricket Board (in short, the BCB) is a recognized national sports organization and an affiliated body of the NSC having its own Constitution under the name and style “h¡wm¡cn ¢H²LV ®h¡XÑ NWea¿» (2008 pe fkÑ¿¹ pwn¡¢da)” (Annexure-A) being approved by NSC. According to Article 11.1 of the Constitution, BCB has the authority to amend its constitution subject to the approval of NSC.

12. Article 26 of the constitution of BCB prescribed the procedures for amendment of its constitution. Article 26 runs as under:

“(L) HC NWea¿»l ®L¡e pwn¡de£ fËÙ¹¡h f¢lQ¡me¡ f¢loc Bm¡¢Qa Hhw Ef¢ÙÛa pwMÉ¡N¢lù pcpÉl ®i¡V mycvwikK…Z qCa qChz

(M) pwn¡de£ fËÙ¹¡h f¢lQ¡me¡ f¢locl Ae¤j¡cel fl a¡q¡ ®e¡¢Vn BL¡l p¡d¡le f¢locl pi¡l 30 (¢Hn) ¢ce f§hÑ pLm L¡E¢¾pmll ¢eLV ®fËle L¢la qChz

(N) ®k¡¢J²L L¡le b¡L¡ pZ¡I ®L¡e pwn¡de£ fËÙ¹¡h f¢lQ¡me¡ f¢loc Bm¡Qe¡l SeÉ Ef¢ÙÛa e¡ qCm Abh¡ f¢loc a¡q¡ Ae¤j¡ce e¡ L¢lm ®pC ®rœ p¡d¡le f¢locl HL-a«a£u¡wn pcpÉl ü¡rl fËÙ¹¡h¢V p¡d¡le f¢locl pi¡u E›¡fe Ll¡ k¡Chz

(O) p¡d¡le f¢locl ¢hno, amh£ Abh¡ j¤mah£ pi¡u Ef¢ÙÛa pcpÉcl c¤C-a«a£u¡wn pcpÉl pÇj¢aH²j NWea¿» pwn¡de£ Nªq£a qChz”

13. According to the aforesaid provision, the Executive Committee of BCB convened several meetings and ultimately at its 34^th Extra-Ordinary General Meeting held on 01.03.2012, the proposed amendment (Annexure-C-1) had been adopted and ultimately, it was forwarded to the Secretary, NSC for final approval. In response to such amendment, NSC sent a counter proposal by the letter dated 21.10.2012 (Annexure-E) to BCB with a request to incorporate certain provisions as enumerated in the attached index “f¢l¢nø” of the proposed amendment to the constitution of BCB and to send back two copies of the same for its approval. The contents of the office letter dated 21.10.2012 (Annexure-E) is quoted below:

“EfkÑ¤J² ¢hou J p§œl ®fË¢ra jq¡cul pcu AhN¢al SeÉ S¡e¡e¡ k¡µR ®k, h¡wm¡cn ¢H²LV ®h¡XÑ ®bL ®fË¢la h¡wm¡cn ¢H²LV ®h¡XÑl fËÙ¹¡¢ha NWea¿» (2012) S¡a£u H²£s¡ f¢loc La«ÑL ¢e¢hsi¡h fkÑ¡m¡Qe¡ Ll¡ quRz fkÑ¡m¡Qe¡¿¹ LuL¢V …l²aÄf§ZÑ ¢hou f¢lm¢ra quR k¡ f¢l¢nø BL¡l ®cM¡e¡ qm¡z f¢l¢nøa Eõ¢Ma pwn¡de£ pj§q fËÙ¹¡¢ha NWea¿» A¿¹iÑ§J² Ll pwn¡¢da NWea¿»l 02(c¤C) fËÙÛ S¡a£u H²£s¡ f¢loc ®fËlel SeÉ ¢ecÑnH²j Ae¤l¡d Ll¡ qm¡z”

14. BCB incorporated those recommendations as mentioned in the “f¢l¢nø” and had sent two copies of the amended constitution to NSC by letter dated 26.11.2012 (Annexure-F).

15. What is important to mention here is that NSC accorded final approval to the amendment which was imposed by it. The contents of the approval as contained in Annexure-H to the writ-petition are extracted below:

S¡a£u H²£s¡ f¢loc

62/3, f¤l¡e¡ fÒVe, Y¡L¡-1000z

ew HeHp¢p/120/3/®Se/3324 a¡¢lM-29/11/2012Cwz

‡cÖiK: mwPe

RvZxq µxov cwil`, XvKv|

cÖvcK: mfvcwZ

‡k‡i evsjv RvZxq †ówWqvg

wgicyi|

m~Î: bs wewmwe/cÖkvmb/2012/591 ZvwiL 26/11/2012 Lªx:

ewY©Z wel‡q my‡Îv³ c‡Îi gva¨‡g †cÖwiZ evsjv‡`k wµ‡KU †ev‡W©i cÖ¯—vweZ MVbZš¿ AvswkK ms‡kvwaZvKv‡i cwil‡`i gvbbxq †Pqvig¨vb Pyovš— fv‡e Aby‡gv`b K‡i‡Qb| D³ Aby‡gvw`Z MVbZ†š¿i GK cÖ¯’ GZ` m‡½ †cÖib KiZ: h_vh_ fv‡e Kvh©Ki Kivi Rb¨ wb‡`©kµ‡g Avcbv‡K webxZ Aby‡iva Kiv n‡jv|

mshyw³: cÎg‡Z|

¯^v/-

29/11/2012

(†gv: kwdK Av‡bvqvi)

mwPe

RvZxq µxov cwil`

16. Now it is to be resolved whether NSC can amend the Constitution of the BCB of its own accord without the amendment being approved by BCB as per Article 26 of the Constitution.

17. Section 10 of the Act of 1974 deals with the function of NSC constituted under section 3(1) of the Act of 1974. Clause (b) of section 10 of the Act of 1974 provides that NSC shall have the power to grant recognition and the affiliation to the sports organizations. Section 12(2)(f) of the Act of 1974 provides that the Executive Committee of NSC shall have the power to issue such directives as it may deem necessary in the interest of promotion of the sports.

18. Section 20A of the Act of 1974, in particular, in clause (a) provides that NSC shall have power to frame model constitution for all or any of the organizations so affiliated to it. The relevant provision of section 20A of the Act of 1974 is quoted below:

“20A. Notwithstanding anything contained in any other law for the time being in force, or in any agreement, contract, memorandum or articles of association or any other legal instrument, the Council shall have power-

(a) to frame model constitution for all or any of the organisations affiliated to it;

(b) ....................................

(c) ....................................

(d) ...................................

As regards the amendment of the Constitution, BCB has its authority to do so as per Article 26 of the Constitution as stated earlier.

19. In this connection, it is to be mentioned here that Article 11 of the Constitution of BCB provides the power of General Body (p¡d¡le f¢loc)z Article 11.1 states as under:

""Ae¤µRc-11 x p¡d¡lZ f¢locl c¡¢uaÄx p¡d¡lZ f¢locl c¡¢uaÄ J L¡kÑf¢l¢d ¢ejÀl²f qChx

11|1 ¢h¢p¢hl NWea¿» fËZue J fËu¡Se pwn¡dez k¡q¡ flha£Ña S¡a£u H²£s¡ f¢loc La«ÑL Ae¤j¡¢ca qCa qChz

11.2 ------------------------------------------------

11.3-----------------------------------------------''

20. There is no gainsaying the fact that NSC is the controlling authority of all sports organizations of the country including BCB. As per section 20A of the Act of 1974, the NSC has framed the Constitution of BCB or has approved the constitution as framed by BCB.

21. According to Article 11.1 read with Article 26 of the Constitution of BCB, the power to amend the constitution has been given to BCB subject to the approval of NSC. By section 20A of the Act of 1974, the legislator has given the power to NSC to frame constitution and pursuant to that power the constitution has been duly framed and NSC by doing so delegated the power of amendment of the Constitution to BCB with its approval. Record reveals that BCB in exercise of the power of amendment has effected amendments to its constitution on previous occasions with the approval of NSC. Pursuant to the provisions of Articles 11.1 and 26 of the constitution, a right has accrued to BCB to amend its constitution which cannot be curtailed by NSC. It is of course correct that NSC has the power to accord approval to any amendment to the constitution of BCB but NSC cannot impose any amendment on BCB. If such a practice is allowed then the provisions of Articles 11.1 and 26 of the Constitution of BCB will become meaningless. Moreover, BCB should be allowed to work freely in respect of amendments of its constitution without any direct interference by NSC which, of course, has the power to accord approval to such amendment.

22. It is contended that section 20A(a) of the Act of 1974 read with section 21 of the General Clauses Act, 1897 authorities NSC to amend the Constitution of BCB.

Section 21 of the General Clauses Act, 1897 provides as under:

“Power to make to include power to add to, amend, vary or rescind, orders, rules or bye-laws-Where, by any Act of Parliament or Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.”

23. Under section 21 while the power to add, to amend, vary or rescind notifications, orders, rules or bye-laws are available such power does not include the authority to take away validly acquired rights. Under section 21 of the General Clauses Act, the power conferred on NSC is not plenary power so as to make the power of BCB nugatory so far the amendment of the constitution is concerned unless such power is expressly conferred by the parent statute.

24. The power conferred under Article 11.1 read with Article 26 of the Constitution is derived from the Act of 1974 and NSC had delegated the power to BCB to amend its constitution. By the memo dated 21.01.2012 (Annexure-E) NSC gave direction to BCB to include the proposed provisions in the Constitution of BCB and pursuant thereto BCB included those proposals of NSC and sent two copies of its constitutions to NSC for approval. NSC cannot do so in exercise of power under section 21 of the General Clauses Act ignoring the procedure for amendment of the constitution as contained in Articles 11.1 and 26. NSC, in fact, has usurped the power of BCB to amend its Constitution.

25. Therefore, the High Court Division was justified in making the Rule absolute.

26. Having considered all aspects of the case, we are of the view that the BCB is at liberty to amend its Constitution at any time as per provision of Article 11.1 and Article 26 of its Constitution so that the requirements of International Cricket Council is met subject to the approval of NSC.

1) Accordingly, both the appeals are disposed of with the observations made in the body of the judgment.

Ed.

CIVIL APPEAL No. 82-83 of 2013.

(From the judgment and order dated 27.01.2013 passed by the High Court Division in Writ Petition No. 16831 of 2012)

Secretary of Aircraft Engineers of Bangladesh Vs. Registrar of Trade Union, 45 DLR (AD) (1993) 122

Case No: Civil Appeal Nos. 14-18 of 1993

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. A. F. Hassan Ariff,Syed Amirul Islam,Mr. Rafique-ul-Huq,Mr. Asrarul Hossain,Mr. Amir Hossain Khondker,,

Citation: 45 DLR (AD) (1993) 122

Case Year: 1993

Appellant: Secretary of Aircraft Engineers of Bangladesh

Respondent: Registrar of Trade Union

Subject: Labour Law,

Delivery Date: 1993-8-18

Supreme Court
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed CJ
M H Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J

Secretary of Aircraft Engineers of Bangladesh
……………Appellants
Vs.
Registrar of Trade Unions and ors
.........................Respondents [In CA No.14 of 1993]
Aircraft Workshop Technical Workers Union
……….………Appellants
Vs.
Registrar of Trade Unions and ors
...........................Respondents [In CA No.15 of 1993]
Bangladesh Biman Flying Service Association of Cabin Crew
..................Appellant
Vs.
Bangladesh Biman Sramik Union and ors
…………….Respondents [In CA No. 16 of 1993]
Bangladesh Airlines Pilots Association and another
…………….Appellants
Vs.
Registrar of Trade Unions and ors
…......................Respondents [In CA No. 17 of 1993]
Flight Engineers and Navigators Association and anr
………………Appellants
Vs.
Registrar of Trade Unions and ors
.........................Respondents [In CA No. 18. of 1993]

Judgment
August 18th, 1993.

Industrial Relations (Amendment) Act (XXII of 1990)
Sections 7(2) & 10
Trade Unions have to be organized “establishment-wise” and there cannot be at any given point of time more than 3 registered trade unions in an establishment. The registration may even be cancelled if membership of the union falls short of thirty percent. The purpose is not to restrict the right to form unions but give trade unions a shape and to chart out a well-ordered territory for their operation. …. (11)

Case Referred to-
Asaduzzarnan Vs. Bangladesh 42 DLR (AD) 144;

Lawyers Involved:
Rafique-ul-Huq, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Appellants. (In CA No.14 of 1993).
Shamsul Hoque Siddique, Advocate-on-Record-For the Respondent No. 1 (In CA No. 14 of 1993).
Hassan Arif, Deputy Attorney-General, (B Hussain, Deputy Attorney‑General with him), instructed by Shamsul Haque Siddique, Advocate-on-Record-For Respondent No. 2 (In CA No. 14 of 1993).
Amir Hossain Khondker, Advocate (appeared with leave of the Court) (M A Tarek, Advocate with him), instructed by Sharifudclin Chaklader, Advocate-on-Record-For Respondent No. 3 (In CA No. 14 of 1993).
Syed Amirul Islam, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellant. (In CA No. 15 of 1993).
Hassan Arif, Deputy Attorney-General, instructed by B Hossain, Advocate-on-Record-For Respondent Nos. 1 and 2. (In CA No. 15 of 1993).
Amir Hossain Khandker, Advocate (appeared with leave of the court) (M A Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record-For Respondent No. 3. (In CA No. 15 of 1993).
Asrarul Hossain, Senior Advocate instructed by Faruque Ahmed, Advocate-on-Record-For the Appellant. (In CA No. 16 of 1993).
Shafique Ahmed, Advocate instructed by Aftab Hossain, Advocate‑on‑Record‑For Respondent No.1 (In CA No. 16 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (MA Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record-For Respondent No. 5 (In CA No.16 of 1993).
Respondent Nos. 24 and 6-Not represented. (In CA No.17 of 1993).
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record -For the Appellants. (In CA No.17 of 1993).
Hassan Arif, Deputy Attorney-General (B Hossain, Deputy Attorney‑General with him), instructed by AW Mallik, Advocate-on-Record-For Respondent Nos. 1 and 2. (In CA No.17 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (M A Tarek, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record-For Respond No. 3 (In CA No. 17 of 1993).
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record -For the Appellants. (In CA No. 18 of 1993).
Hassan Arif, Deputy Attorney-General (B Hossain, Deputy Attorney-General with him), instructed by Zinnur Ahmed, Advocate-on-Record-For Respondent Nos. 1 and 2. (In CA No. 18 of 1993).
Amir Hossain Khondkar, Advocate (appeared with leave of the Court) (MA Tarek, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record-For Respondent No. 3. (In CA No. 18 of 1993).

Civil Appeal Nos. 14‑18 of 1993.
(From the Judgment and order dated 14.7.92 passed by the High Court Division in Writ Petition Nos. 1311,1923, 1924 and 2648 of 1990 and Writ Petition No. 133 of 1991).

JUDGMENT

Mustafa Kamal J.

1. One registered trade union, namely, Bangladesh Biman Sramik Union and four existing Collective Bargaining Agents of the Bangladesh Biman Corporation, in brief, the Biman, namely, Bangladesh Airlines Pilots Association, Flight Engineers and Navigators Association, Aircraft Workshop Technical Workers Union and Society of Aircraft Engineers of Bangladesh Biman along with their respective Presidents obtained separate Rules Nisi respectively in Writ Petition Nos. 1311, 1923, 1924, 2648 of 1990 and 133 of 1991 in order of filing. By a common Judgment and order dated 14.7.92 a Division Bench of the High Court Division made the Rule absolute in Writ Petition No. 1311 of 1990 and made the Rule partly absolute in the other writ petitions. The last-named four Collective Bargaining Agents of the Biman preferred CA Nos. 17, 18, 15 and 14 of 1993 respectively and Bangladesh Biman Flying Service Association of Cabin Crew, which added itself as respondent No. 6 in Writ Petition No. 1311 of 1990, preferred CA No. 16 of 1993 from the said Judgment and order of the High Court Division. These appeals by leave have been heard together and will be disposed of by this common Judgment.

2. The background of the dispute involved in these appeals is that the Registrar of Trade Union, in brief, the Registrar registered the five writ petitioners as well as two other Unions as Trade Unions of the Biman under section 8 of the Industrial Relations Ordinance, 1969 (Ordinance XXIII of 1969), shortly the Ordinance, 1969. Only the five appellants were determined as the Collective Bargaining Agents of the Biman under section 22.

3. The Ordinance, 1969 was amended by the Industrial Relations (Amendment) Act, 1990, shortly, the Amendment Act, 1990. By section 2 thereof two provisions were added to sub‑section (2), of section 7 of the Ordinance, 1969 so that the entire sub‑section (2) of section 7 now reads as follows:

"7(2) A trade union of workers shall not be entitled to registration under this Ordinance unless it has a minimum membership of thirty per cent of the total number of workers employed in the establishment or group of establishment in which it is formed:
Provided that more than one establishment under the same employer, which are allied to and connected with one "another for the purpose of carrying on the same industry irrespective of their place of situation, shall be deemed to be one establishment for the purpose of this sub-section:
Provided further that where any doubt or dispute arises as to whether any two of more establishments are under the same employer or whether they are allied to or connected with one another for the purpose of carrying on the industry, the decision of the Registrar shall be final."

4. By Section 5 of the Amendment Act. 1990 a special provision was made as follows: ‑

“5. Bishesh bidhan- 1. Ukto Ordinance ba apatato: balobat onno kono aine ja kichui thakuk na keno, ei ain dara sangshodhito ukto Ordinance er Section 7(2) er bidhan sammoto noy emon sakol biddoman Trade union er nam, proyojonio tadonter por Trade Union samuher Registrar sarkari gazette proggapon dara prokash koriben.
(2) Upa-dhara (1) er odhin proggapon jarir tarikh hoite nobboi din otibahito hoibar por proggapone ullekhito trade unioner registration, upa-dhara (3) er bidhan sapekkhe batil hoibe.
(3) Upa-dhara (1) er odhin prokashito kono trade unioner nam gezzete prokash karar biruddhe apotti thakile uhar je kono karmokarta uktorup batiler purbe trade unionsamuher registrarer nikot ukto apotti lipibaddho koria abedon dakhil korite pariben ebong je trade unioner bapare eirup abedon dakhil kara hoibe sei trade union, upa-dhara (2) er bidhan satteo, bahal thakibe.
(4) Upa-dhara (3) er odhin abedon praptir nobboi diner moddhe trade union samuher registrar abedonkari o shagshisto onnano pokkhoke shunanir sujog dia bishoytir upor tahar siddhanto prodan koriben ebong ukto siddhanto motabek jodi shagshisto trade unionti upori-ukto Section 7(2) er bidhan sammoto noy bolia sabbasto hoy taha hoile siddhanto prodaner tarikh hoite trade unionti batil hoibe.”

5. The existing seven registered trade unions of the Biman including the writ petitioners were served with an order of the Registrar embodied in Memo No. RTU/CBA(3)/78/C‑40 dated 2.5.90 stating therein that in pursuance of an enquiry made under section 2 of the Amendment Act, 1990 it had been found that none of the seven existing trade unions was constituted in accordance with the newly‑introduced provisos to sub‑section (2) of section 7 of the Ordinance, 1969. The Registrar ordered that henceforth there will be two establishments in the Biman taking into account its running along commercial lines and in keeping with the characteristics of services rendered by its employees, namely, (i) Bangladesh Biman Ground Services and (ii) Bangladesh Biman Flying Services. He asked the seven registered trade unions of the Biman to submit their documents to his office for obtaining proper registration certificate. The Resistrar then caused a Notification to be published in the Bangladesh Gazette on 17.5.90 under section 5(1) of the Amendment Act, 1990 listing therein the names of the existing seven registered trade unions of the Biman, including the five writ petitioner‑unions, whose registration were liable to be cancelled.

6. The writ petitioners submitted objections in accordance with section 5(3) of the Amendment Act, 1990. However during pendency of the proceeding before the Registrar under section 5(4) of the Amendment Act, 1990 the writ petitioners four of which were Collective Bargaining Agents and one of which was a registered trade union of the Biman commonly challenged the Registrar's order dated 2.5.90. Except in Writ Petition No. 1311 of 1990, the other writ petitioners also challenged the Notification of the Registrar dated 17.5.90 as also the vires of the two provisos to sub‑section (2) of section 7 and section 5 of the Amendment Act, 1990 on the ground that the amended legislation is violative of the fundamental right guaranteed by Article 38 of the Constitution.

7. The five writ petitioners had their own separate stories to tell, but the High Court Division, concentrating on their common cause, held that the common impugned order of the Registrar dated 2.5.90 was passed without lawful a6thority as it had not been mentioned anywhere in the said order that there was any doubt or dispute which necessitated the passing of the said order. The Registrar was not given any power, it held, to divide or unite any establishment for the purpose of registration of trade unions on the basis of the characteristics of services rendered by the employees of the Biman or for the purpose of its commercial management. It was not necessary in its opinion to decide the constitutionality of the two provisos added to sub‑section (2) of section 7 of the Ordinance, 1969. Section 5 of the Amendment Act, 1990 was held not to be violative of Article 38 of the Constitution as it had not curtailed the right of any worker to form a trade union or to become a member of a trade union. The Rule Nisi issued in Writ Petition No. 1311 of 1990 was made absolute and the Rules Nisi issued in the other writ petitions were made absolute in part as already noticed. The impugned order of the Registrar dated 2.5.90 was declared to have been made without lawful authority, but the impugned Notification dated 17.5.90 was not interfered with as the proceedings were still pending with the Registrar under section 5(4) of the Amendment Act. 1990.

8. Since the High Court Division did not decide upon the constitutionality of the two provisos and held that section 5 of the Amendment Act, 1990 was not violative of Article 38 of the Constitution, all the writ petitioners, except the appellant in CA No. 16 of 1993, have obtained leave to appeal from this Court and have urged a fresh consideration of these issues. The appellant in CA No. 16 of 1993 has supported the Registrar's order dated 2.5.90 and is aggrieved by its cancellation by the High Court Division.

9. Article 38 of the Constitution guarantees the right of freedom of association in the following manner:

"38. Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order."

10. There can be no doubt that the right to form an association or union not only embraces the right to form a trade union but also that "the word 'form' in Article 38 does not limit the exercise of that right to the formation of an association. The right to form an association must of necessity imply the right to continue and carry on the activities of the association as well". Asaduzzaman Vs. Bangladesh, 42 DLR (AD) 144. The right is subject only to reasonable restrictions in the interests of morality or public order. The "restrictions", if any, must be relatable to "the right to form associations or unions". But so long as this right is not restricted, except on the ground of morality or public order, a statute may provide for the manner of organisation of associations or unions (including trade unions), the nature of its composition, required minimum strength, requirements and conditions of registration, cancellation of registration, supervision over the activities of an association or union (including trade union) and so on. These legislative exercises, so long as they do not restrict "the right to form associations or unions", may provide for an orderly and rational basis for their functioning. The legislative provisions can be set at naught only if it is found that they restrict die right of association or union without the restraint having any nexus with morality or public order or that they have the effect of rendering nugatory the effective exercise of the said right.

11. The Ordinance, 1969 is a piece of legislation of that sort. It provides for the manner and method of organisation of trade unions in an industry (as defined therein). Affirming the right to form an association or union, section 3 provides that, "subject to the provisions of the Ordinance, workers as well as employers, without distinction whatsoever shall have the right to establish and, subject only to the rules of the organisation concerned, to join associations of their choosing without previous authorisation” (Underlines are mine). This section has its source Article 2 of Convention No. 87 adopted by the International Labour Organisation in 1948 and ratified by (former) Pakistan. But the Ordinance, 1969 follows its own method of organisation of trade unions, which may or may not be the same in other parts of the world. Trade unions have to be organised "establishment‑ wise". Establishment, “means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry" (section 2(iv) and industry "means any business, trade, manufacture, calling, service, employment or occupation". (Section 2(xiv). If a trade union, t1tus constituted "establishment‑wise", seeks registration, then it is not entitled to registration, meaning to say that it has no right of registration under section 7(2), unless it has a minimum of membership of thirty percent of the total number of workers employed in the establishment or group of establishments in which it is formed. Plainly speaking section 7(2) implies that there cannot be at any given point of time, more than 3 registered trade unions in an establishment. The registration of a trade union may even be cancelled, under section 10, if, inter alia, its membership has fallen short of the said thirty percent. The whole purpose of the legislative exercise is not to restrict the right to form associations or unions, but to give the trade union shape and to chart out a well‑ordered territory for their operation.

12. The appellants have not in any manner challenged any provisions of section 7(1) and section 7(2) (unamended) or section 10 as violative of fundamental rights. The burden of submissions or Dr. Kamal Hossain, Mr. Rafique-ul-Huq and Mr. Syed Amirul Islam, learned Counsels for the appellant-unions, is that the impugned legislation has the inevitable effect of bringing to an end an extinguishing the appellant-unions, particularly in view of section 11A of the Ordinance, 1969 which is as follows:

"11A. (1). No trade union which is unregistered or whose registration has been cancelled shall function as a trade union.
(2) No person shall collect any subscription for any fund of a trade union mentioned in sub‑section (1)."

They argued that the right to form an association or union, guaranteed by Article 38 of the Constitution, includes the right to its continuance which is now being denied by the impugned legislation. The threatened cancellation of registration is tantamount to negating the effective existence of the fundamental right and as such it is violative of the constitutional guarantee which cannot be extinguished by law and on which reasonable restrictions may be imposed only in the interest of public order or morality.

13. It is the common cause of the appellant-‑unions that their respective trade unions are separate and distinct from the other registered trade unions in that their respective members are rendering distinct and separate species of services to the Biman. They are special categories of professionals owing to their qualifications, mode of recruitment, conditions of service and rights and obligations. They are governed by special agreements between the Biman and the said appellants. The members of these appellants' trade unions cannot be equated with any other class of employees of the Biman. Each of them is affiliated to and recognised by separate international organisations. They are the local components of global professional groups and if they lose their registration they lose their international affiliations and thereby lose their capacity to serve the Biman.

14. It is clear that the specialised professional groups of the Biman organised their trade unions along professional lines and what is more, obtained registration from the Registrar and have been acting as Collective Bargaining Agents for a long period. There may well be very good pragmatic reasons for allowing them to do so, but was their registration fully in accord with the provisions of the Ordinance, 1969? Were they, each of them individually, an "establishment" within the meaning of section 2(iv)? We had no satisfactory answer from the learned Counsel for the appellants on this score. Before any group can claim to be an "establishment" it must first be "an office, firm, industrial unit, undertaking, shop or premises" and it is obvious that none of these groups except the appellant in CA No. 15 of 1993 answers any of the above descriptions. The plain fact is that those appellant unions did not establish themselves "establishment‑wise" as is required under the Ordinance, 1969.

15. Contrast the provisions of the Trade Unions Act, 1926, a predecessor to the Ordinance, 1969. Any seven or more persons actually engaged or employed in an "industry" could form a trade union and apply for registration under the said Act. 'Industry', under the said Act, "means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial or agricultural occupation or avocation of workman". This definition of "Industry" in the Trade Unions Act, 1926 is the same as in the Industrial Disputes Act, 1947 (of India) and the Indian Supreme Court in the case of Secretary, Madras Gymkhana Club Employees' Union Vs. Management of the Gymkhana Club, 1968 AIR (SC) 554 held in respect of the two parts of this definition, "If the activity can be described as an industry with reference to the occupations of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part". It is not difficult to see that in the organisational structure of trade unions under the Trade Unions Act, 1926, trade unions formed by the specialised professionals of an industry perfectly fitted in with the statutory pattern, which is not the case in their application to the Ordinance, 1969. Under the latter, a trade union's registration is contingent upon its constitution 'establishment‑wise', and there, except for the appellant in CA No. 15 of 1993, the other four professional groups fail the test. The said appellant‑unions' right of continuance does not stand on the same footing as in the case of Hindi Sahitya Sammelan Vs. Jagdish Swarup, 1971 AIR (SC) 966 and their reliance upon this case is misconceived.

16. The original organisational scheme of the Ordinance, 1969 was that there could be at least three registered trade unions in each establishment of an industry. If an employer had more than one establishment under the unamended Ordinance, 1969, the workers, without any distinction whatsoever, had the right to form trade unions in each establishment, however inconvenient it may have been for the employers. The submission on behalf of the Biman‑respondent that the Biman was "one establishment" all throughout, is not correct. The Biman employees may have had one employer all throughout, but at least three registered trade unions were permissible in each establishment of the Biman, provide the trade union was established in an "establishment" within the meaning of section 2(iv). The newly-introduced provisos to sub‑section (2) of section 7, recognises the organisational structure of trade unions and provided that if an employer has more than one establishment, allied to and connected with one another for the purpose of carrying on the same industry, irrespective of their place of situation, then all these establishments shall be deemed to be one establishment for the purpose of sub‑section (2) of section 7. This new legislation contains no restriction upon the workers' right to form a trade union and consequently there is no necessity to show that there is a nexus between the new legislation and public order or morality. It is necessary to show the nexus only when a restriction is imposed. The workers of more than one establishment under the same employer are free to form trade unions, as before. No doubt the existing trade unions lose their registrations in the process and are unable to continue in their old form, but as we said earlier, the organisational structure of trade unions is a legitimate domain of legislative exercise and no worker has a fundamental right to a particular form of organisational set-up. To hold otherwise will be tantamount to holding that once trade unions are formed along a particular organisation pattern and registration given, there can be no further changes in the organisational set-up and that the Trade Union structure will remain frozen as long as fundamental rights exist, howsoever desirable or necessary it may be for a change to meet the changing needs of changing times or situations.

17. Invoking section 11A of the Ordinance, 1969 (quoted earlier), the learned Counsels for the appellant-unions have argued that once the appellants lose their registration, they cease to exist altogether and cannot function as a trade union. Hence their right to registration is not the same as in the case of M/s. Raghubar Dayal Vs. Union of India, 1962 AIR (SC) 263, in which it has been held that the right to obtain recognition from the Government is not a fundamental right, but in Raghubar Dayal's case, an association could exist as an association, though not as a "recognized association". In the present cases, they cannot exist at all. The appellants have relied upon the case of Eastern Railway Employees Congress Vs. General Manager, Eastern Railway, 1965 AIR (Cal) 3, in which it has been held that recognition of the Government may attain constitutional importance, where without such recognition the fundamental right to form an association would be illusory. In that case recognition of a trade union was withdrawn on two charges, the first of which was found to be without basis, and the second charge was found to have been accepted without affording the trade union concerned an opportunity to show cause. It is in this connection that the nature of the right which is liable to be affected by the withdrawal of the recognition was considered. The present cases are not cases of withdrawal of recognition after framing charges, as in section 10 of the Ordinance, 1969, but a loss of registration owing to change in the organisational set‑up of trade unions. The basic right involved in these appeals is not so much a right of registration, but a right to a particular form of organisational set‑up of trade unions. If the appellant trade unions had organised themselves along the lines indicated in the amended legislation and has wanted to survive as a trade union simpliciter, without being registered, then perhaps the validity of section 11A of the Ordinance, 1969 could be considered. But that is not their case. Nor is section 11A under challenge in these appeals.

18. What has been sought to be achieved by the amended legislation is that it aims to put an end to the concept of “as many trade unions as establishments" and introduce a scheme of "one employer, one establishment". The erstwhile registered trade unions can claim a fundamental right to their continuance only if they can establish that they have a fundamental right to the continuation of the old concept of organisational set-up. The changed concept is applicable to all employers and all then allied and connected establishments, without any distinction whatsoever, Neither is this concept I totally new one nor a radical departure from the past. This changed concept has its origin in section 28B of the Trade Unions Act, 1926. This Act contained no provision for determination of collective bargaining agent as in the Ordinance, 1969. After registration, there was a further need of recognition by the employer. And the employer was to follow the concept of "same or allied industries, one trade union". Section 28‑B of the Trade Unions Act, 1926 was as follows:

"28B.- (1) An employer shall recognise a Trade Union if it fulfils the following conditions, namely:
(a) that it is a registered Trade Union and has complied with all the provisions of this Act;
(b) that all its ordinary members are workmen employed in the same industry or in industries allied to or connected with one another;
(c) that, where there are more than one Trade Union, the number of its members is not less than ten per cent of the total number of workmen employed in such industry or industries, and exceeds that number of members of every other Trade Union in such industry or industries;
(Other conditions are omitted).

19. Note clause (b) above. It is only when a trade union was recognised by an employer that it acquired the right to negotiate with the employer in respect of trade union matters, a right given to collective bargaining agents under section 22(12) of the Ordinance, 1969. The point to notice is that to meet the requirement of recognition of an employer under the Trade Unions Act, 1926, members of a trade union had to be employed in the same industry or in industries allied to or connected with one another and also had to have not less than ten percent of the total number of workmen employed in such industry or industries and also had to exceed the number of members of every other trade union in such industry or industries. What was sought to be achieved at the employees level (after registration) under the Trade Unions Act, 1926 is now sought to be achieved at the Registrar's level under the newly‑amended Ordinance, 1969, because recognition by the employer is no longer necessary and a collective bargaining agent is determined either by operation of law (section 22(1) or by the Registrar in secret ballot (section 22(2) to 22(10). The amended legislation has thus nothing to do with restrictions on the right of association or union or restrictions on its continuance. It is a re-organisational statute and no one has a fundamental right to a particular form of trade union. The appellant‑union in CA No. 15 of 1993, Aircraft Workshop Technical Workers Union, was no doubt an "establishment" within the meaning of section 2 (iv) of the Ordinance, 1969, because its members were drawn up from an aircraft workshop of the Biman, but its apprehended loss of registration is similarly due to an organisational re-structuring and not due either to any restrictions on its members' right to association or union or to any restrictions on its continuance. The re‑structuring is not arbitrary or fanciful or even innvovative. It is applicable to all industries with one employer. It was there previously, only resuscitated anew.

20. As for the argument that the appellant-unions will lose their international affiliations if they lose registration, the short answer will be that the consequence, if any, will no doubt be unfortunate but the right to constitute a separate trade union for workers with international affiliations is simply not provided for, either in the unamended Ordinance, 1969 or in the Amendment Act, 1990. The amended legislation cannot be said to be violative of the fundamental right guaranteed under Article 38 of the Constitution on the ground of loss of international affiliation.

21. Mr. Rafique-ul-Huq, learned Counsel for the appellants in CA No. 14 of 1993, additionally submits that the added second proviso to sub‑section (2) of section 7 and section 5 of the Amendment Act, 1990 are also violative of Article 27 of the Constitution as they give an arbitrary, unchartered, unfettered and unguided discretion to the Registrar to cancel the registration of an existing trade union. It is also discriminatory in nature, in that it allows the Registrar a non‑appealable "final" power to cancel the registration of a trade union whereas the registration of an existing trade union can be cancelled under section 10 of the Ordinance, 1969 on certain grounds upon submission by the Registrar of an application to the Labour Court which the Labour Court may or may not grant after hearing the affected trade union and an appeal also lies to the Labour Appellate Tribunal against an order of cancellation by the Registrar, The less advantageous procedure provided in the impugned legislation is thus ex facie discriminatory. Mr. Rafique ul‑Huq also submits that section 5 of the Amendment Act, 1990 is, furthermore, capable of being exercised discriminatorily and the power given to the Registrar may also be abused.

22. Under the newly‑introduced first proviso to sub‑section (2) of section 7, the Registrar has to consider the cases of more than one establishment under the same employer, which are allied to and connected with one another for the purpose of carrying on the same industry, irrespective of their place of situation. Under section 28‑B of the Trade Unions Act, 1926, an employer had to consider about the same, if not fully the same, while according recognition to a registered trade union. The guideline is provided in the first proviso itself and it cannot be said that the Registrar has been given an arbitrary, unguided and unfettered power in an unchartered territory. Nor is the submission regarding discrimination between the more advantageous procedure provided in section 10 and the less advantageous procedure provided in section 5 (of the Amendment Act, 1990) is valid, because section 10 is a continuous power maintained in the Ordinance, 1969 whereas section 5 of the Amendment Act, 1990 a power which is to be exercised only once after which it exhausts itself and that is why section 5 has been given a heading "special provisions" and has not been incorporated in the Ordinance, 1969. The‑two types of power given to the Registrar under section 10 and section 5 (of the Amendment Act, 1990) are dissimilar in their operation and field of application and therefore there can be no parity of application of the two sections. Article 27 of the Constitution has not been violated at all.

23. The High Court Division has struck down the Registrar's Order dated 2.5.90 on the ground that in the Order, it did not appear that there was any doubt or dispute as to whether any two or more establishments of the Biman are under the same employer or whether they are allied to or connected with one another for the purpose of carrying on the industry. It has not noticed the affidavits‑in-opposition of the Biman‑respondent. Consequent upon the passage of the Amendment Act, 1990 the management of the Biman itself wrote to the Registrar stating that it was one establishment and asking the Registrar to determine its collective bargaining agent. The order dated 2.5.90 was the result of a correspondence between the Biman and the Registrar, interspersed unfortunately with some unseemly interference by the administrative ministry which is uncalled for in the scheme of the Ordinance, 1969. But the Registrar's Order dated 2.5.90 is plainly illegal not because there dispute, but because he had no jurisdiction, under the amended legislation, to consider the commercial management of the Biman and the characteristics of the services of its employees in determining how many "establishments" it will have. The learned Counsel for the Biman‑respondent has rightly pointed out that under section 8 of the Bangladesh Biman Corporation Ordinance, 1977(Ordinance No. XIX of 1977) all the employees of the Biman are under the control of one authority and that all its employees have only one employer and as such the Biman is one establishment under the Amendment Act, 1990. The Registrar's Order dated 2.5.90 is unsustainable on merit and the appellants contention in CA No. 16 of 1993 has no merit either.

24. Before we part, however, we wish to observe that if it is found desirable by the authority that in view of the special nature of services rendered by its employees the organisational set up of trade unions of the Biman or any other organisation containing similar professional groups should receive special consideration so as to meet their special situations, then the authority may consider whether, consistent with the constitutional provisions and the statute, their special needs in respect of trade union matters can be met by an appropriate legislation. In the meanwhile, all existing agreements between any of the appellant‑Unions and the Biman shall remain operative for, the duration of the respective agreements.

In the result all the appeals are dismissed without costs. However, this Judgment will not affect the existing Agreements, if any, between any of the appellants and the Biman.

Ed.

Secretary, Parliament Secretariat, Dhaka Vs. Khandker Delwar Hossain and others, 19 BLD (AD) (1999) 276

Case No: Civil Appeal No. 22 of 1999

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mahmudul Islam,,

Citation: 19 BLD (AD)(1999) 276

Case Year: 1999

Appellant: Secretary, Parliament Secretariat, Dhaka

Respondent: Khandker Delwar Hossain

Subject: Constitutional Law,

Delivery Date: 1999-7-29

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Mustafa Kamal CJ
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AM Mahmudur Rahman J
Mahmudul Amin Choudhury J

The Secretary, Parliament Secretariat, Dhaka
……………………….Appellant
Vs.
Mr. Khandker Delwar Hossain and others
……………………….others Respondents

Judgment
July 29, 1999.

Constitution of Bangladesh, 1972
Article 102
The subject matter of Article 70 is within the exclusive domain of the Election Commission and the Speaker has neither any constitutional authority to thwart a decision by the Election Commission by including the subject matter in a parliamentary proceeding and by pre-empting any decision under the cover of a ruling which will be a usurpation of the constitutional power of the Election Commission.

Cases Referred to-
Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan, PLD 1969 Lahore 602; Fazlul Chowdhury Vs. Muhammad Abdul Haque, PLD 1963 SC 486.

Lawyers Involved:
Mahmudul Islam, Attorney General, instructed by B. Hossain, Advocate-on-Record-For the Appellant.
Moudud Ahmed, Senior Advocate (M.A. Aziz, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent Nos. 1 and 2.
Not represented-Respondent No. 3.

Civil Appeal No. 22 of 1999
(From the judgment and order dated 27.8.98 passed by a Division Bench of the High Court Division in Writ Petition No. 1163 of 1998)

JUDGMENT

Mustafa Kamal CJ.

1. This appeal by leave by the Secretary, Parliament Secretariat, Sangshad Bhaban, Dhaka, respondent No. 2 in Writ Petition No. 1163 of 1998, is from the judgment and order dated 27.8.98 passed by a Division Bench of the High Court Division in the said writ petition Making the Rule Nisi absolute and directing respondent No.1, Speaker, Bangladesh Jatiyo Sangshad (respondent No. 3 herein) to forward the dispute as raised by the writ-petitioners, the Chief Whip and the Deputy Leader of the opposition in their letters to the Speaker (Annexure-A and Al) regarding two BNP members of Parliament to the Election Commission within 30 days of receipt of the order.

2. The events that led to the filing of the writ petition as described by respondent Nos. 1 and 2, the writ petitioners, are that Mr. Hasibur Rahman Shawpon and Dr. Md. Alauddin were elected as members of Parliament in the general election held on 12 June, 1996 from national constituency No. 67, Sirajganj-7 and national constituency No. 56, Rajshahi-5 respectively as candidates of Bangladesh National Party (BNP) and both of them were members of the parliamentary party of BNP. On being allured and induced by the ruling party the said members of Parliament changed their allegiance and joined the Treasury Bench. Ignoring parliamentary rules and practices and knowing very well that BNP is the principal opposition party in the Parliament and is opposed to the Government, the aforesaid members of Parliament took oath of office as Ministers of the present Government of Awami League on 9.2.98 and 17.2.98 in violation of the discipline of the party. In pursuance of a decision taken by the Standing Committee of BNP presided over by the Chairperson of BNP and Leader of the Opposition, Begum Khaleda Zia, Writ-Petitioner No. 1 (respondent No. 1 herein), Chief Whip of the Opposition in Parliament, addressed a letter to the Speaker on 11.2.98 (Annexure-A) with regard to the seat of Md. Hasibur Rahman Shawpon, now a Deputy Minster and writ-petitioner No. 2 (respondent No. 2 herein), Deputy leader of the Opposition in Parliament, addressed another letter to the Speaker on 18.2.98 (Annexure-Al) with regard to the seat of Dr. Md. Alauddin, now a State Minister, the contents of which are more or less the same. In these letters it has been alleged that the said members of Parliament being the members of BNP and knowing full well that their own political party BNP is not a partner/supporter of the Hon’ble Prime Minister's so-called "consensus Government" have taken oath as Deputy Minister/State Minister of the Government ignoring parliamentary rules and practices and violating party discipline. These Acts of theirs shall be deemed to be resignation from their own political parties under Article 70(1) of the Constitution and therefore their seats have fallen vacant under Article 67(1)(e) of the Constitution. They requested the Speaker to publish notifications in the Bangladesh Gazette to the above effect. Besides writing the aforesaid letters, the writ-petitioners and BNP took a public stand both in and out of Parliament that the said Ministers could not longer continue as members of Parliament. The concerned members tried to defend their position by claiming that Article 70 of the Constitution was not violated by them nor their seats have fallen vacant. None of them has resigned from the BNP. Besides, the leaders of the ruling party claim that the concerned members had joined the so-called "consensus Government" by way of representing the BNP. All the major newspapers of the country covered these issues extensively for several weeks.

3. The Speaker, respondent No. 1 in the writ-petition, told the members of the press that it will take time for him to give a decision on the issue. A national debate started in the media over the dispute. There were continuous hartals and incidence of violence in the constituencies of the concerned members in protest of their joining the Government.

4. In the meantime, the Speaker reallocated the seats of the aforesaid members. Mr. Hasibur Rahman Shawpon whose seat No. was 299 in the Opposition bench was allotted seat No. 264 in the Treasury Bench. Mr. Md. Alauddin whose seat No. was 186 in the Opposition Bench was allotted seat No. 262 in the Treasury Bench. This was a confirmation that the said members had left the Opposition (BNP) and joined the Government (Awami League) byway of crossing the floor which could not have been done unless they had resigned from BNP and ceased to be members of that party. The Speaker reallocated the seats without Consultation with the respective Chief Whips of the ruling party and the opposition. Writ-petitioner No. 1 (Respondent No. 1 herein) addressed a further letter to the Speaker on 22.3.98 requesting him to inform whether the seats allocated earlier to the aforesaid members will be considered to have been vacated or not. The Spesker did not reply. A delegation comprising the writ-petitioners and some other members of Parliament belonging to the BNP called on the Speaker on 19.3.98 and 4.4.98 and emphasised on the dispute raised by them in there aforesaid letters dated 11.2.98 and 18.2.98 and urged upon the Speaker to refer this dispute to the Election Commission. They were assured that the Speaker would soon resolve this matter. At last after more than two months the Speaker stated in the Parliament on 21.4.98 that the seats of the aforesaid members had not fallen vacant since they had neither resigned nor voted in the Parliament against their party (BNP). Each of the writ-petitioner than sent a demand justice notice upon on the speaker and thereafter field the writ petition raising various issues of law.

5. The Speaker, who was respondent No. 1 in the writ petition, did not appear and file any affidavit-in-opposition Respondent No. 2, the present appellant, filed an affidavit-in-opposition and the main thrust of his defence was that unless any member of Parliament either resigns from the party on whose nomination he was elected or votes in Parliament against that party Article 70 of the Constitution is no attracted. The concerned members neither resigned from the BNP nor voted in Parliament against BNP. Therefore, there cannot be any reason to consider the point raised by the writ petitioners as a dispute within the meaning of Article 66(4) of the Constitution. It was the additional defence of the present appellant that two members of Parliament raised two substantive points of order in the Parliament as regards the membership of the concerned members. After considering the facts and circumstances of the said points of order, the provisions of the Constitution and the Rules of Procedure of Parliament the Speaker disposed of the points of order by giving his ruling in Parliament on 21.4.98. The Speaker thus acted within his jurisdiction and the ruling delivered by him is very much a part of the proceeding of Parliament which cannot be questioned in any Court of law as per Article 78 of the Constitution. It was also contended that Article 70 of the Constitution is a restriction on freedom of conscience and on the rights of the members of Parliament and its reach cannot be extended beyond the literal meaning of the language used and therefore Article 70 is to be strictly construed.

6. The writ-petitioners filed an affidavit-in-reply.

7. What the High Court Division basically held is that there is a dispute within the meaning of Article 70 of the Constitution as to whether the concerned members should vacate their seats in terms of Article 70 and that it is not for the Speaker to come to the conclusion that a dispute has not arisen. It is the Election Commission which will proceed to investigate the dispute before giving its opinion. The Constitution does not require the Speaker to give a strict interpretation to the word "resign". He is only to see whether there is a prima facie dispute that a seat should be vacated by a member of Parliament within the meaning of Article 66(4) of the Constitution and then refer it to the Election Commission.

8. The High Court Division found that the Speaker's ruling on two points of order raised by two BNP leaders was not placed before it. The writ-petitioners, it held, were not challenging the ruling of the Speaker but were challenging the Speaker's refusal to refer to the Election Commission the dispute raised by the Chief Whip and the Deputy Leader of the Opposition in their letters addressed to him. It is not the contention of the present appellant, the High Court Division held, that a ruling has been given by the Speaker on the two letters written to the speaker by the two writ-petitioners but it was the appellant's submission that a ruling was given on the points of order raised by two other BMP members. The dispute raised by the writ-petitioners could not have been settled through a Parliamentary proceeding simply because Parliament is not the forum envisaged by the Constitution to address such a dispute, the High Court Division held.

9. Leave was granted to consider the submission of the appellant that no allegations having been made in the two letters addressed to the Speaker that the concerned members of Parliament have resigned from the membership of BNP, there was no prima facie dispute regarding application of the provisions of Article 70 of the Constitution and hence the Speaker was not required to refer the matter to the Election Commission in terms of Article 66(4) and that the High Court Division was wrong in holding otherwise upon an erroneous construction of the expression 'resign" appearing in Article 70 of the Constitution. Leave was also granted to consider the further submission that a certain act or conduct does not qualify as "resignation" unless it is a formal renouncement of an office accompanied by an act of relinquishment, that an act or conduct which cannot even be said to be a voluntary giving up or abandonment of an office does not amount to resignation and that in the facts and circumstances of the case there having been no allegation of resignation made in the letters, the Speaker was not required to act in terms of Article 66(4) of the Constitution and that the High Court Division was wrong in holding otherwise.

10. Leave was also sought for on the ground that the question of resignation from membership of BNP by the concerned members of Parliament having been raised in the floor of Parliament by way of points of order and the Speaker having given his ruling on the question, it became a part of the proceedings of Parliament which is immune from challenge in Court under Article 78 of the Constitution and the High Court Division was wrong in rejecting the said contention.

11. At the time of granting leave we held in the leave granting order that the learned Attorney General failed to point out from the records of the case as to what were actually the points of order raised in the Parliament and what was the precise ruling given by the Speaker so as to claim protection under Article 78 of the Constitution. We held that there have been vague assertions both in the writ petition and in the affidavit-in-opposition as to the points of order and the ruling but in the absence of any authentic materials we did not think that a plea of bar under Article 78 could be raised successfully. We therefore did not grant leave on this last point.

12. Before we advert to the respective submissions of the two parties it will be necessary to quote certain provisions of the Constitution and some statutory provisions to understand the questions at issue.

13. We will quote Article 70 of the Constitution in full as follows:

70. (1) A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party or votes in Parliament against that party.
Explanation-if a member of Parliament-
(a) being present in Parliament abstains from voting, or
(b) absents himself from any sitting of Parliament, ignoring the direction of the party which nominated him at the election as a candidate not to do so, he shall be deemed to have voted against that party.
(2) If, at any time, any question as to the leadership of the Parliament party of a political party arises, the Speaker shall, within seven days of being informed of its in writing by a person claiming the leadership of the majority of the members of the party in Parliament, convene a meeting of all members of Parliament of that party in accordance with the Rules of Procedure of Parliament and determine its Parliamentary leadership by the votes of the majority through division and if, in the matter of voting in Parliament, any member does not comply with the direction of the leadership so determined, he shall be deemed to have voted against that party under clause (1) and shall vacate his seat in the Parliament.
(3) If a person, after being elected a member of Parliament as an independent candidate, joins any political party, he shall, for the purpose of this article, be deemed to have been elected as a nominee of that Party.
We will next quote Article 66(4) and (5) which are as follows:

66. (4) if any dispute arises as to whether a member of Parliament has, after his election, become subject to any of the disqualification's mentioned in clause (2) or as to whether a member of Parliament should vacate his seat pursuant to Article 70, the dispute shall be referred to the Election Commission to hear and determine it and the decision of the Commission on such reference shall be final.
(5) Parliament may, by law, make such provision as it deems necessary for empowering the Election Commission to give full effect to the provisions of clause (4).

14. It will be noticed that in Article 70 a member of Parliament vacates his seat in the eventuality of two occasions happening, namely, (1) if he resigns from the party which nominated him as a candidate at the election, or (2) if he votes in Parliament against that party. In the original Constitution, dating back from 1972, there were the following words, "but shall not thereby be disqualified for subsequent election as a member of Parliament". Article 70 was substituted by the 4th Amendment of the Constitution. By the Constitution (Twelfth Amendment) Act, 1991 (Act XXVII of 1991) the said Article stands further substituted as quoted above with effect from 18.9.91. The Explanation gives a wider application to the act of voting in Parliament against the party, but does not extend or curtail the width and breadth of the word "resign". This latest amendment prompts the learned Attorney General, appearing on behalf of the appellant, to argue that while voting in Parliament against the party has been given an extended and fictional meaning by using the words "deemed to have voted", the word "resign" has not been given any wider meaning so as to include any fiction of law by which a member is "deemed to have resigned". It is not the case of the respondents, he submits, that the two members concerned had resigned from their party but it is their contention that they will be "deemed to have resigned" according the their party constitution. The relevant provisions of the Constitution of BNP provide as follows:

৫। সদস্য পদ
(ক)..............................
(খ)..............................
(গ)..............................
(ঘ) সদস্য পদ থেকে প্রদত্যাগ:
(১) দলের যে কোন সদস্য দলের চেয়ারম্যানের কাছে লিখিত চিঠির মাধ্যমে পদত্যাগ করতে পারবেন।
(২) দল কতৃক মনোনীত কোন সংসদ সদস্য যদি সংসদে দলের সংসদীয় দলের নেতা/নেত্রীর সম্মতি ছাড়া নিজের নির্দিষ্ট আসন পরিবর্তন করেন অন্য দলের সাথে জোট বাঁধেন বা ফ্লোরক্রস করেন বা সংসদের দলীয় অবস্হানের পরিপন্থী কোন কাজ করেন কাহলে উপরোক্ত যে কোন কার্যের কারনে সেই সংসদ সদস্য এই দল থেকে তাৎক্ষণিকভাবে পদত্যাগ করেছেন বলে গণ্য হবেন।

15. The learned Attorney General submits, as he submitted before the High Court Division, that in the absence of a wider or a fictional meaning assigned to the word "resign", the word “resign” used in Article 70 must be given an ordinary or strict meaning. He refers to Black's Law dictionary at page 1310 where “resignation” has been defined as “formal renouncement or relinquishment of an office" i.e., a written resignation and submits that is what Article 70 meant by resignation.

16. On the other hand, Mr. Moudud Ahmed, learned Counsel for the respondents, submits that the words "political party" used in Article 70 has been given an inclusive definition in Article 152 of the Constitution as follows:

"Political party” includes a group or combination of persons who operate within or Parliament under a distinctive name and who hold themselves out for the purpose of propagating a political opinion or engaging in any other political activity.

17. He submits that by recognizing political party as a constitutional entity the Constitution also recognized that a political party may have a constitution of its own to which all its members must subscribe and to which all its members must owe allegiance. A member, if he has to belong to BNP, a political party, is not only bound by the provisions in the constitution of BNP providing for a formal written resignation but is also bound by the other situations mentioned in the party constitution which bring his membership in the party to close. Article 70 provides that a member shall vacate his seat if he “resigns from the party" which nominated him as a candidate in an election. He resigns from the party and therefore his resignation must be addressed to the person who is competent to receive his resignation under the party’s constitution. He argues that Article 70 recognises the existence of a constitution of a political party and also recognises that a political party may prescribe methods other than formal resignation which will be equally a resignation from that political party. It is not a question of strict or liberal Constitution of Article 70, he submits. It is a question of the constitution accepting and recognizing the existence of a political party, its constitution and consequently its various methods and manners by which a resignation is effected. Replying to the learned Attorney General he submits that in Black's Law Dictionary "resignation" has been defined as "formal renouncement or relinquishment of an office". Membership of a political party is not an office and therefore the definition given by Black is inapplicable in the case of a mere member resigning from his political party. Mr. Moudud Ahmed submits that Article 70 need not give afresh a fictional meaning to the word "resign" as has been done in the case of voting in Parliament against the political party of a member by adding the explanation. It is the scheme of the Constitution which will determine whether the word "resignation" should cover the constitution of a political party or not. He submits that there is a historical background behind the introduction of Article 70 in the original Constitution of 1972 and the amendments thereof upto the Twelfth Amendment, 1991. The people had bitter experience during the Pakistan period when the country enjoyed a parliamentary politics for a short period in fits and starts. Crossing of floor and horse-trading to make and break Government became a matter of concern for all. When the makers of the Constitution were drafting the 1972 Constitution they wanted to ensure stability and continuity of Government and also to ensure discipline among the members of the political parties so that corruption and instability can be removed from national politics. Article 70 was introduced to achieve this objective. The spirit was that members elected to the Parliament should continue to maintain their allegiance to the party by which they have been nominated and to uphold the manifesto and programme of that party in national politics. It was designed to ensure that the party which forms the Government can continue to govern the country and not be distabilised and dethroned by floor crossing and horse trading being allured by the other side and vice versa. This provision was deliberately inserted in view of the prevailing political culture of the country. Political party has been recognised as a constitutional entity for the first time in the Constitution of Bangladesh and indirectly in Article 70 the constitution of a political party is also recognised by use of the words "resigns from the party".

18. The learned Attorney General draws our attention to Article 50(3) (the President may resign his office by writing under his hand addressed to the Speaker), Article 57(1) (a) (the resignation of the Prime Minister "by placing his resignation in the hands of the President"), Article 58(1)(a) (resignation of a Minister "by placing his resignation in the hands of the Prime Minister for submission to President"), Article 67(2) (resignation of a member of Parliament "by writing under his hand addressed to the Speaker"), Article 74(2)(d) (resignation of the Speaker or Deputy Speaker “by writing under his hand the delivered to the President), Article 96(8) (resignation of a Judge “by writing under his hand addressed to the President”), Article 129(3) (resignation of the Auditor-General "by writing under his hand addressed to the President”) and Article 139(3) (resignation of a Chairman or other Member of a Public Service Commission “by writing under his hand addressed to the President").

19. From all those provisions of the Constitution the learned Attorney General submits that resignation from a party will mean the same thing and will be attended with the same formality as resignation of different kinds of Constitutional offices mentioned in other parts of the Constitution. Resignation has a different meaning from voluntary abandonment of an office. By resigning from the party a member loses his membership of Parliament, a Constitutional office. Therefor, a resignation from the party is akin to resignation of other holders of constitutional offices and must be formal in nature.

20. Mr. Moudud Ahmed on the other hand contends that by not prescribing in what manner or method a member of Parliament shall resign from his political party, the Constitution intended that this resignation will not be as formal as the holder of a constitutional post is required to observe when he submits his resignation. He argues that the absence of any specification of the manner of resignation in Article 70 as distinguished from the resignation of the holders of constitutional offices in other provisions of the Constitution clearly emphasises the informal nature of resignation of a member Parliament from his political party. It is only when he resigns from the membership of the Parliament that he has to observe a certain formality under Article 67(2) of the Constitution.

21. After we have summarised the relative contentions of both the parties we are left with no doubt whatsoever that there is not only a dispute but also a highly contentious dispute between the leaders of BNP and the concerned members as to whether the latter should vacate their seats pursuant to Article 70. The matter cannot be brushed aside by taking a position that no dispute exists.

22. We have earlier quoted Article 66(4) of the Constitution. Clause (4) merely provides that the dispute shall be referred to the Election Commission, but does not say who will refer the dispute. Clause (5) of Article 66 provides that Parliament may, by law, make such provision, as it deems necessary for empowering the Election Commission to give full effect to the provisions of clause (4).

23. Parliament has in fact acted by enacting members of Parliament (Determination of Dispute) Act, 1980 (Act No. 1 of 1991). The preamble of the said Act provides that it is "an act to make provision for empowering the Election Commission to give full effect to the provision of clause (4) of Article 66 of the Constitution". Section 3 of Act 1 of 1981 provides as follows:

3. Reference of dispute under article 66(4)—The Speaker shall within thirty days after the facts relating to the dispute, the name and address of the member of Parliament in respect of whom or in respect of whose seat the dispute has arisen and the name and address of the person who has raised the dispute, hereinafter referred to as the parties to the dispute, and send the statement to the Election Commission to hear and determine the dispute.

24. The point to note here which has been missed by the learned Counsels of both parties as well as the High Court Division is that the Speaker in section 3 of Act No. 1 of 1981 is not a constitutional functionary when he refers the dispute to the Election Commission. He is a statutory functionary discharging a constitutional obligation. Being creature of a statute, i.e., a subordinate legislation, he is very much amenable to the writ jurisdiction of the High Court Division. The function which the Speaker discharges under section 3 of Act No. 1 of 1981 is not a function assigned to him by or under the Constitution but by or under a statute. His act of referring the dispute or not referring the dispute is a statutory Act or omission. His authority as a spokesman of the Parliament under the Constitution is not involved. The Speaker discharging a constitutional obligation in exercise of a constitutional power wears the hat of a constitutional authority. The Speaker exercising or refusing to exercise his function under section 3 of Act No. 1 of 1981 wears the hat of a statutory authority.

25. The subject matter of Article 70 is within the exclusive domain of the Election Commission and the Speaker has neither any constitutional authority nor any statutory authority to thwart a decision by the Election Commission by including the subject matter in a parliamentary proceeding and by pre-empting any decision under the cover of a ruling which will be a usurpation of the constitutional power of the Election Commission. We therefore do not attach any importance to an unedited copy of the proceedings of the Jatiya Sangshad held on 21.4.98 produced for our perusal by the learned Attorney General.

26. Defending the Speaker's exercise the learned Attorney General takes exception to the observation of the High Court Division that the Speaker is merely a post office in this regard. In assailing this observation he places his reliance on the case of Ghulam Muhammad Mustafa Khar Vs. Chief Election Commissioner of Pakistan, PLD 1969 Lahore 602, wherein it has been held with regard to Article 104(2) of the Constitution of Pakistan, 1962 that when a matter is brought to the notice of the Speaker with reference to the disqualification of a member he would have to apply his mind to the question contemplated in Article 104(2). Article 104(2) was as follows:

104. (2)—If any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member.

27. In the same decision it has been held, however, with which we agree, that the Speaker’s function under Article 104(2) "is clearly of a very limited character. That had to be so, because in so far as the decision with regard to the disqualification lay with the Chief Election commissioner, he (Speaker) might be accused of bad faith if he refused to make a reference and thus stifle an inquiry by the Chief Election Commissioner, which is a matter which lies within his jurisdiction and not that of the Speaker."

28. In the present case, the Speaker has taken the position that no resignation has taken place within the meaning of Article 70 of the Constitution and that is a decision which the Constitution does not require the S to give. It is the Election Commission which will decide the meaning of resignation in its totality raking account of the various languages concerning resignation employed in the Constitution, reallocation of seats made by the Speaker and other attendant facts and circumstances including the arguments advanced before the Commission. It must be said, flowing the decision cited and relied uopn by the learned Attorney General, that the Speaker is merely performing an administrative function in referring the dispute to the Election Commission. It has been clearly held in the case of Fazlul Chowdhury Vs. Muhammad Abdul Haque, PLD 1963 SC 486, that in a proper case the Speaker might be Directed by the higher Court to make a reference where he has refused to do so if a petition for that relief was brought.

29. We are aware that since our Constitution was framed in 1972 and Article 70 was substituted by the Twelfth amendment a lot of changes has taken place in the concept regarding independence of parliamentarians. A Joint Colloquium on "Parliamentary Supremacy and Judicial Independence ………. Towards a Commonwealth Model” was held at Latimer House in the United Kingdom, from 15-19 June, 1998. Over 60 participants attended representing 20 Commonwealth countries and 3 overseas territories. The Colloquium was sponsored by the Commonwealth Lawyers’ Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates' and Judges' Association and the Commonwealth Parliamentary Association. On 19 June, 1998 Latimer House Guidelines for the Commonwealth was proclaimed by the Colloquium. Item III contains the Guidelines on preserving the independence of Parliamentarians and it provides as follows:

III. Preserving the Independence of Parliamentarians
1. Article 9 of the Bill of Rights 1688 is re-affirmed. This article provides:
"That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament.
2. Security of members during their parliamentary term is fundamental to parliamentary independence and therefore:
(a) the expulsion of members from parliament as a penalty for leaving their parties (floor-crossing) should be viewed as a possible infringement of members independence; anti-defection measures may be necessary in some jurisdictions to deal with corrupted practices;
(b) laws allowing for the recall of members during their elected term should be viewed with caution, as a potential threat to the independence of members;
(c) the cessation of membership of a member's seat.

30. However, the above-quoted provisions are merely guidelines and are intended not to be binding on the interpretation of a particular Commonwealth Constitution. These are goals to be achieved by stages. If at any time our country, because of maturity in Parliamentary practices, achieves a position which penders the application of Article 70 unnecessary or rare, than perhaps the guidelines given above can even be applied to the interpretation of our Constitution. But as our democracy is a nascent one we cannot afford to ignore the mandate of the Constitution provided in Article 70 read with Article 66(4) of the Constitution.

31. As the Constitution is very emphatic that any dispute as to whether a member of Parliament should vacate his seat pursuant to 70 shall be decided by the Election Commission it was neither appropriate for the Speaker to preempt the decision by putting his own interpretation on the word "resignation" nor will it be appropriate for us to give our mind away as to what we think about the language of Article 70. We shall serve the Constitution better by refraining from expressing our opinion in the matter and if the High Court Division or this Division in our respective judgments have passed any opinion on any of the matters dispute exists the Election Commission shall ignore the same and come to its decision independently.

32. For the purpose of this appeal, we have only decided that a dispute exists and that the Speaker ought to have referred the dispute to the Election Commission in exercise of his statutory authority.

33. In the result, the appeal is dismissed without any order as to costs. Respondent No. 3, Speaker, House of the Nation, is directed to refer the dispute as to whether Md. Hashibur Rahman Swapan and Dr. Md. Alauddin, members of Parliament, should vacate their seats pursuant to Article 70 of the Constitution to the Election Commission within 7 (seven) days from receipt of this order.

Ed.

Secretary, Rahmat-E-Alam Islam Mission & Etim Khana Vs. Md. Shafiqul Huq

Case No: Civil Petition for Leave to Appeal Nos. 949 & 951 of 2005

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Fazlul Haque,,

Citation: V ADC (2008) 569

Case Year: 2008

Appellant: Secretary, Rahmat-E-Alam Islam Mission & Etim Khana

Respondent: Md. Shafiqul Huq

Subject: Property Law,

Delivery Date: 2006-08-31

Secretary, Rahmat-E-Alam Islam Mission & Etim Khana Vs. Md. Shafiqul Huq
V ADC (2008) 569

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J

Secretary, Rahmat-E-Alam Islam Mission & Etim Khana, No.1, Rail Gate, Tejgaon, Dhaka...............Petitioner (In Civil Petition No. 949 of 2005)
Additional Deputy Commissioner, Dhaka.........Petitioner (In Civil Petition No. 951 of 2005)
Vs.
Md. Shafiqul Huq, being dead his heirs: Captain Salauddin & others......... Respondents (In both the cases)

Judgment
August 31, 2006.

The High Court Division held that there is nothing on record to indicate that any vested property case was started in respect of the suit land but from the evidence on record it was found that the Title Suit No.346 of 1977 was decreed ex parte on 05.06.1980. The High Court Division held that this will be sometimes after 1980 as the ex parte decree was passed on 05.06.1980 and the law on enemy property itself died with the repeal of Ordinance 1 of 1969 with effect from 23.03.1974 and no further vested property case could be started thereafter. Accordingly, the High Court Division held that the plaintiff having failed to prove that the S.A. recorded tenants left for India in 1965 and the suit land became enemy property, he has no locus standi to challenge the decree passed in Title Suit No.346 of 1977. The High Court Division further observed that P.W.1 admitted that the summons of Title Suit No.346 of 1977 was served upon the Deputy Commissioner, Dhaka. There is no evidence of any fraud practised upon the party or upon the court in obtaining the decree in Title Suit No. 346 of 1977. Non-inclusion of Additional Deputy Commissioner (Revenue) in charge of vested property is not a fraudulent act to turn down the earlier decree on the ground of fraud are rightly held by the lower appellate court that non-joinder of a party may not defeat the suit is all cases. .. (6)

Case Referred to-
Munsur Ali Mallik Vs. Md. Nurul Haque Mallik and others, BCR 1986 (AD) 56.

Lawyers Involved:
Fazlul Haque, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioners (In both the cases)
Abdul Wadud Bhuiyan, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For Respondent Nos.1-10 (In both the cases).
Not represented-For Respondent Nos. 11-31(In both the cases).

Civil Petition for Leave to Appeal Nos. 949 & 951 of 2005
(From the judgment and order dated 23.02.2005 passed by the High Court Division in Civil Revision Nos. 3992 & 2974 of 1999).

Judgment

M.M. Ruhul Amin J. -These two petitions for leave to appeal are directed against the common judgment and order dated 23.02.2005 passed by a Single Bench of the High Court Division in Civil Revision Nos. 3992 & 2974 of 1999 discharging both the Rules.

2. Short facts are that the plaintiff instituted Title Suit No. 66 of 1991 in the Court of the Subordinate Judge (now Joint District Judge), Additional Court, Dhaka for declaration that the judgment and decree dated 05.06.1980 passed in Title Suit No. 346 of 1977 by the 1st Court of Subordinate Judge(now Joint District Judge), Dhaka is illegal, void and not binding upon the plaintiff stating, inter alia, that the suit land originally belonged to Priaya Nath Basak, Nagendra Nath Basak, Bhupendra Nath Basak and Digendra Nath Basak who were owners of the suit land to the extent of 4 annas share each and their names were correctly recorded in the S.A. Khatian and that during 1965 war between India and Pakistan the aforesaid S.A. recorded owners left the country for India and the suit land was declared and treated as enemy property (now vested property). The suit land was leased out to one Abdul Baten in E.P. Case No.210 of 1967 and subsequently lease was granted to Rahmat-E-Alam Islam Mission who also paid lease money up 1385 B.S. The further allegation is that the defendant obtained an ex parte decree in Title Suit No.346 of 1977 on 06.05.1980 declaring that the suit land is not vested and non-resident property and it was their purchased land from Rathindra Nath Basak who was the adopted son of Debendra Nath Basak by registered kabala dated 21.07.1977. The Deputy Commissioner, Dhaka was impleaded as a party in the said suit land but the Assistant Custodian of the vested and non-resident property was not impleaded in the suit as a party in Title Suit No. 346 of 1977 and thus ex parte decree dated 05.06.1980 is, illegal, void and not binding upon the plaintiff.

3. The defendant No.1 contested the suit by filing a written statement contending, inter alia, that the suit land originally belonged to Debendra Nath Basak, Lal Mohan Basak and Promotha Nath Basak and by an amicable partition, the suit land fell in the saham of Debendra Nath Basak, one of the sons of Modon Mohan Basak who got 4 annas share in the suit land. Debendra Nath Basak died issueless leaving behind only a widow who adopted a son named Rathindra Nath Basak and the suit land was recorded in the name of Rathindra Nath Basak on mutation in the S.A. Khatian and the defendants purchased the suit land from Rathindra Nath Basak by two separate registered kabalas on 21.07.1977 and got their names mutated in the Khatian. The defendant was compelled to file Title Suit No.346 of 1977 against the present plaintiff and others. The summons was duly served upon the plaintiff and others but none appeared to contest the suit and the suit was ultimately decreed ex parte on 05.06.1980. The defendants then filed an application for correction of the S.A. record before the Circle Officer (Revenue) on the basis of the decree passed in Title Suit No. 346 of 1977 and when the matter was, placed before the Circle Officer he refused the proposal for correction on the ground that the suit land was declared vested and non-vested property. It was further alleged that the suit land was leased out to one Monir Hossain and others and subsequently to defendant No.12 who was put in possession in respect of 13.70 acres of land and has been possessing the same. The further allegation is that the defendant Nos.1-11 of Title Suit No.346 of 1977 obtained an ex parte decree though they were not owners of the suit land. It was further alleged that adoption Rathindra Nath Basak was illegal and invalid.

4. The trial court decreed the suit in favour of the plaintiff. The defendants then preferred Title Suit No.357 of 1992. The appellate court allowed the appeal and dismissed the plaintiff’s suit. Being aggrieved thereby the plaintiff being the Additional Deputy Commissioner (Revenue) in charge of the vested and non-resident property, Dhaka moved the High Court Division in revisional jurisdiction and obtained the Rules. The defendant No. 12, Secretary, Rahmat-E-Alam Islam Mission and Etimkhana as petitioner has obtained another Rule being Civil Revision No.2974 of 1999. Since both the Rules arising out of self-same judgment of the appellate court, were heard together and disposed of by the impugned judgment. The High Court Division upon hearing the parties discharging the Rules as noticed earlier.

5. We have heard Mr. Fazlul Haque, the learned Advocate for the petitioner in both the cases and Mr. Abdul Wadud Bhuiyan, the learned Counsel for respondent Nos. 1-10 in both the cases and perused the judgment of the High Court Division and other connected papers.

6. The High Court Division held that there is nothing on record to indicate that any vested property case was started in respect of the suit land but from the evidence on record it was found that the Title Suit No.346 of 1977 was decreed ex parte on 05.06.1980. The High Court Division held that this will be sometimes after 1980 as the ex parte decree was passed on 05.06.1980 and the law on enemy property itself died with the repeal of Ordinance 1 of 1969 with effect from 23.03.1974 and no further vested property case could be started thereafter. Accordingly, the High Court Division held that the plaintiff having failed to prove that the S.A. recorded tenants left for India in 1965 and the suit land became enemy property, he has no locus standi to challenge the decree passed in Title Suit No.346 of 1977. The High Court Division further observed that P.W.1 admitted that the summons of Title Suit No.346 of 1977 was served upon the Deputy Commissioner, Dhaka. There is no evidence of any fraud practised upon the party or upon the court in obtaining the decree in Title Suit No. 346 of 1977. Non-inclusion of Additional Deputy Commissioner (Revenue) in charge of vested property is not a fraudulent act to turn down the earlier decree on the ground of fraud are rightly held by the lower appellate court that non-joinder of a party may not defeat the suit is all cases. The High Court Division further held, "I have examined the documentary evidence and the oral evidence but I could not find out any materials indicating that any fraud was practiced upon the party or the court in obtaining the decree in Title Suit No. 346 of 1977. The learned Advocate for the petitioners could not point out any evidence indicating fraud committed by the plaintiffs of the earlier suit in obtaining the earlier ex parte decree, I do not therefore, find any error of law committed by the lower appellate court in dismissing the plaintiffs suit. The trial court made a totally wrong approach to the pleading of the parties and the evidence on record." The High Court Division further held that non-inclusion of a party cannot be construed as a fraud.

7. The learned Advocate for the petitioner submits that the Additional Deputy Commissioner (Revenue), Dhaka who was in charge of vested and non-resident property was not a party in Title Suit No.346 of 1977 and as such the decree is not binding on him. Therefore, the decree is liable to be set aside. In this connection it may be stated that since the petitioner was not party to the decree, the same is not automatically binding on him. A void decree needs to be avoided by a decree of a competent court but a voidable decree need be avoided by a decree of the court of competent jurisdiction. Therefore no suit is maintainable at the instance of such a party for declaration that the decree passed in such a suit is not binding on him.

8. In the case of Munsur Ali Mallik Vs. Md. Nurul Haque Mallik and others reported in BCR 1986 (AD) 56 the plaintiff challenged the decree obtained in Title Suit No.69 of 1961 by one Lakshman Chandra Dhupi, predecessor of the defendant. In the suit, the plaintiff was not a party. In the second appeal, the High Court Division considered the submission exhaustively and it was noticed that in the suit of Lakshman Chandra Dhupi, the plaintiff, was not a party. Hence the suit for declaration that the decree passed in Title Suit No.69 of 1961 at the instance of Lakshman Chandra Dhupi could not be entertained. In this view of the matter, the appeal was dismissed.

9. In the facts and circumstances of the case and in view of the discussions made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the impugned judgment.
Both the civil petitions accordingly are dismissed.
Ed.

Secretary, Zilla Parishad & Others Vs. Md. Ali Ashraf Khan & others

Case No: Civil Petition for Leave to Appeal No.1092 of 2004.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Muhammad Samsul Hoque ,,

Citation: 16 BLT (AD) (2008) 159

Case Year: 2008

Appellant: Secretary, Zilla Parishad & Others

Respondent: Md. Ali Ashraf Khan & others

Subject: Property Law,

Delivery Date: 2007-05-23

Secretary, Zilla Parishad & Others Vs. Md. Ali Ashraf Khan & others
16 BLT (AD) (2008) 159

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J

Secretary, Zilla Parishad & Ors……………………………..Petitioners
Vs.
Md. Ali Ashraf Khan & ors……………………………………..Respondents

Judgment
May 23, 2007.

Code of Civil Procedure, 1908
Order 26, Rule 9

It appears that the plaintiff filed the suit praying for a decree for permanent injunction in respect of the suit land asserting his exclusive possession in the suit land but the defendant contested the suit filing written statement stating the suit land as vague and uncertain. Under the circumstances the plaintiff filed a prayer for local inspection of the suit land for ascertaining the question of structure standing thereon. The defendant as well filed an application under order 26 of rule 9 of the Code of Civil Procedure for holding local investigation of the suit land in order to ascertain the suit plot and its boundary through an Advocate Commissioner. By order dated 15.10.1998 the learned Assistant Judge allowed both the prayers but the plaintiff being aggrieved by the order allowing local investigation on application of the defendant moved the High Court Division and the High Court Division discharged the Rule holding, inter alia, that the defendant raised the prayer of identity of the suit land and sought for a local investigation to ascertain the same in order to resolve the issue involved in the suit. …. (7)

Lawyers Involved:
Muhammad Samsul Hoque, Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Petitioners.
Mahbubey Alam, Senior Advocate, instructed by Firoj Shah, Advocate-on-Record- For Respondent No. 1.
Not represented- Respondent Nos. 2-5.

Civil Petition for Leave to Appeal No.1092 of 2004.
(From the judgment and order dated 27.04.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 5047 of 1998).

Judgment

Mohammad Fazlul Karim J. -This petition for Leave to Appeal is directed against the judgment and order dated 27.04.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 5047 of 1998, discharging the Rule upholding the order No.34 dated 15.10.1990 passed by the Additional Assistant Judge, 1st Court, Gazipur Sadar, in Title Suit No.7 of 1998 allowing the petition for local investigation filed by the defendant respondent No.1.

2. The petitioners as plaintiffs instituted Title Suit No.7 of 1998 impleading the respondent No.1 as principal defendant and respondent Nos.2-4 as pro forma defendants praying for decree for permanent injunction in respect of the suit land alleging, inter alia, that they are owners in possession of C.S. Plot No.167 which has been correctly recorded in the names of the plaintiffs and that the plaintiffs are in exclusive possession of the said plot. It is further stated that the land measuring 633 square feet has been leased out by the plaintiff No.1 in favour of the plaintiff Nos.2-10 as per Rules of the Zilla Parishad and the plaintiffs Nos.2-10 are in exclusive possession by carrying on business upon constructing tin shed shops on the suit land but the defendants were threatening the plaintiffs with dispossession and hence the suit.

3. The defendant No.1 as the respondent No.1 has been contesting the suit by filing a written statement denying the allegations and contending amongst others that the suit land is vague and uncertain.

4. Mr. Muhammad Samsul Hoque, learned Advocate, appearing for the petitioner submits that the prayer for local investigation is seemingly innocent as observed in the impugned order but most dangerous as in effect it is designed to grab the Government land as it is founded on a claim, made by the defendants-respondents in the written statement and written objection and referred to in their application for local investigation filed in Title Suit No. 7 of 1998, which is barred by the Emergency Requisition of Property Act, 1948 and also barred by Res judicata as the claim was settled against the predecessor of the respondents in Title Suit No.45 of 1996 and Title Appeal No. 131 of 1997 and further the claim is subjudice in view of pendency of Title Appeal No.173 of 2003 and Demarcation Case No. 59 of 2003 elaborately stated in paragraph No.4 of the instant civil petition for leave to appeal to show how the respondents have made to grab the Government land; that the respondents have practiced fraud in their evil design to grab the Government land requisition vide Dacca Gazette dated 15.10.1953 and 21.07.1955 in the background stated in paragraph No.4 of the present civil petition for leave to appeal which could not be made clear before the High Court Division as the learned Advocate for the petitioners having missed the cause list was not present at the time of disposal of the Civil Revision No.5047 of 1998 while he was instructed by the petitioners to file a supplementary affidavit to furnish necessary particulars and thus material points having not been considered by the High Court Division there has occasioned failure of justice; that the defendant-respondents in the written statement filed in Title Suit No.7 of 1998 and written objection against the plaintiffs' petition for injunction claimed that Haji Abdul Jalil Khan got possession of the land appertaining to C.S. Plot No. 166 on 28.05.1953 while the requisition of the said land by the Government was published in the Dacca Gazette on 15.10.1953 and 21.07.19.55 the claim of the defendant-respondents is legally barred by the Emergency Requisition of Property Act,1948 and had this material fact been not suppressed by the defendant-respondents the trial Court would not have entertained the application for local investigation at the instance of the persons having no locus standi in the matter.

5. The learned Advocate further submits that in the Title Suit No.45 of 1996 filed by the father of the defendant-respondent No.1 the trial Court categorically observed that he has no title to the land appertaining to C.S. Plot No. 166 which is the Government requisitioned land and the fraudulent decree obtained by him in Title Suit No.4 of 1996 was set aside and Title Suit No.45 of 1996 filed by him was dismissed on contest wherefrom appeal being Title Appeal No.131 of 1997 was also dismissed and he did not further proceed and as such, the same claim by his successors in any separate proceeding is simply barred by Res-judicata and the prayer for local investigation solely based on such a claim which is not maintainable was liable to be thrown out in limini; that in the present suit for simple permanent injunction filed by the plaintiff-petitioners while their possession over the suit land has been admitted and also proven by documents.

6. The learned further submits that as per admitted documents the defendant-respondents have no title, no possession over any portion of the suit land i.e. C.S. Plot No.167 or 166. So, they have no locus standi to file an application for local investigation and further no useful purpose would be served by local investigation as in the circumstances in a suit for simple permanent injunction; no remedy is available to the defendants while as per admitted documents, the plaintiffs are in possession and locally influential defendants having threatened the plaintiffs with forcible dispossession; the order for local investigation at the instance of the defendants may create some scope for them in these days of unrest and uncontrolled law and order situation to fish in the troubled water and even blood shed is not unlikely; that the claim of the respondents to the effect that no portion of the suit land was ever been requisitioned by the Government on the face of the Dacca Gazette published on 15.10.1953 and 21.07.1955 showing requisition by the Government whether at all maintainable is required to be settled once for all to stop multiplicity of proceedings being handed by the different bodies of the Government at the cost of public money and also causing unnecessary harassment to the petitioners.
Lastly, the learned Advocate submits that only the respondent No.1 contested the suit claiming that his father executed two Heba-bil-Ewaz transferring (12+11)=23 decimals of land in his favour but the day when those two deeds were executed, Haji Abdul Jalil Khan had no right to the suit land in view of the judgment and decree passed in Title Suit No.45 of 1996 and Title Appeal No.131 of 1999 and therefore nothing was passed to the respondent No. 1 by those deeds and he fraudulently suppressed these material facts.

7. It appears that the plaintiff filed the suit praying for a decree for permanent injunction in respect of the suit land asserting his exclusive possession in the suit land but the defendant contested the suit filing written statement stating the suit land as vague and uncertain. Under the circumstances the plaintiff filed a prayer for local inspection of the suit land for ascertaining the question of structure standing thereon. The defendant as well filed an application under order 26 of rule 9 of the Code of Civil Procedure for holding local investigation of the suit land in order to ascertain the suit plot and its boundary through an Advocate Commissioner. By order dated 15.10.1998 the learned Assistant Judge allowed both the prayers but the plaintiff being aggrieved by the order allowing local investigation on application of the defendant moved the High Court Division and the High Court Division discharged the Rule holding, inter alia, that the defendant raised the prayer of identity of the suit land and sought for a local investigation to ascertain the same in order to resolve the issue involved in the suit.
In view of the above, we do not find any substance in the submissions of the learned Advocate for the petitioners.
Accordingly, this application is dismissed.
Ed.

Senior Manager, M/s. Dosta Textile Mills Ltd. and others Vs. Sudhansu B Nath, 40 DLR (AD) (1988) 45

Case No: Civil Appeal No. 97 of 1985

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,Sharifuddin Chaklader,Mr. Asrarul Hossain,,

Citation: 40 DLR (AD) (1988) 45

Case Year: 1988

Appellant: Senior Manager, M/s. Dosta Textile Mills Ltd.

Respondent: Sudhansu B Nath

Subject: Labour Law,

Delivery Date: 1987-8-3

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Senior Manager, M/s. Dosta Textile Mills Ltd., Ranirhat, Feni and others
…………….......Appellants
Vs.
Sudhansu Bikash Nath
..........................Respondent

Judgement
Aug. 3 1987.

Employment of Labour (Standing Orders) Act, 1965
Sections 17 and 25
The Specific Relief Act, 1877
Section 42
(i) Mere designation is not sufficient to indicate whether a person is a 'worker' or an 'employer', but it is the nature of the work, showing the extent of his authority, which determines whether he is a worker or employer. Even if it is taken that he has supervisory function, still mere supervisory capacity will not bring him into the category of "employer". Respondent does not exercise any functions managerial or administrative in nature. He got no power to control or to supervise the work of any other person. Nature of his work does not bring him within the category of 'employer'. It is, therefore, clear that the respondent is not an’ employer' but is a ‘worker’ under the Act. The very moment it is found that the plaintiff is a worker; he is non-suited, because his suit is not maintainable and his grievance lying in a separate forum, the Labour Court………………..(7)
(ii) The respondent was appointed by the Dosta Textile Mills as an employee in 1961 and he continued in the service of the Mills even after its nationalisation and placement under the Corporation. He has been drawing his salary from the Mills all-through and not from the Corporation and finally he has been dismissed by the Mills Authorities and not by the Corporation. Again, Service Rules of the Corporation have excluded from their ambit all 'workers', obviously because when an employee is found to be a worker, he will be governed by the Labour law. Therefore, the finding of the High Court Division that the respondent was an employee of the Corporation or that he was governed by "B.T.M.C. Service Rules" is palpably erroneous……….(10)
(iii) in view of the findings that the respondent is a worker and that he is not an employee of the Corporation whose Service Rules are not applicable to his case, the suit is not maintainable.

Cases Referred to-
Jogesh Chandra Datta v. Government of Bangladesh. 30 DLR 219, New Dhaka Industries Ltd.Vs. Quamrul Huda and others, 31 DLR(AD) 234 and Motaher Hossain Khan v. Bangladesh Jute Mills Corporation, 36 DLR(AD) 282, Mosharraf Hossain Chowdhury v. General Manger, Titas Gas Transmission & Distribution Co. Ltd. 1981 BLD (AD) 61, M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC) 365.

Lawyers Involved:
Asrarul Hossain, Senior Advocate,(Syed Amirul Islam, Advocate, with him) instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellants.
Mahmudul Islam, Advocate, instructed by Kazi Ebadul Huq, Advocate-on-Record-For the Respondent.

Civil Appeal No. 97 of 1985.
(From the Judgment and order dated 7.7.85 passed by the High Court Division, Camilla Bench, in Civil Revision No. 12 of 1984.)

JUDGMENT

Shahabuddin Ahmed J.

This is the defendant's appeal by special leave. Appellant is the Senior Manager of M/s. Dosta Textile Mills Ltd. an Enterprise of me Bangladesh Textile Mills Corporation (hereinafter referred to as "Corporation"). He is challenging the High Court Division's order dated 7 July, 1985 in Civil Revision No. 73 of 1984 refusing to interfere with a decree of the appellate court. By that decree the appellate court on reversing the decision of the trial court declared invalid the appellant's order dismissing the respondent from service under the Employment of Labour (Standing Orders) Act, 1965, (hereinafter referred to as the "Act").

2. Allegation against the plaintiff-respondent was that while he was in charge of the Mills' Store, he, along with the Store Clerk, Yar Ahmed misappropriated 138 Ring Travellers from the Store. A criminal proceeding was instituted on this allegation against him and the co-accused Yar Ahmed. Yar Ahmed was convicted but he was discharged on Final Report submitted by the Police, but he was proceeded against departmentally under section 18 of the Act and was asked to show cause why he should not be dismissed from service. He did not show any cause whereupon he was dismissed from service by the 'Employer' by an order dated 22 October 1977 under section 17 of the "Act"

3. Plaintiff filed T.S. No. 115 of 1978 in the 2nd Court of Munsif, Feni, challenging the order dismissing him from service under the Act. In his plaint he claimed that he was a member of the Management of the Mills designated as "Store-in-Charge," and contended that he was not a worker. He further claimed that he was an employee of the Bangladesh Textile Mills Corporation since, the Dosta Textile Mills was a nationalised enterprise placed under the management and control of this Corporation and as such his service was governed by the Corporation's Employees Service Rules. The order of his dismissal as a worker under the Labour law was illegal and void. In his plaint he sought for a declaration that the order of dismissal was invalid.

4. The suit was contested by the defendant, Senior Manager of the Mills, by filing a written statement. His case was that the suit was not maintainable as the plaintiff was a worker and had remedy by an application before the Labour Court under section 25 of the Act;" that the plaintiff was never an employee of the Bangladesh Textile Mills Corporation; that in spite of nationalisation of the Mills it retained its separate entity as an industrial unit under the general control and supervision of the Corporation and further that the suit was hit by section 42 of the Specific Relief Act in that no consequential relief was sought for. The trial Court, however, dismissed the suit on merit and, finding that the plaintiff deliberately avoided the departmental proceeding and did not avail of the opportunity to defend himself, dismissed the suit by judgment and decree dated 22-4-81. Plaintiff filed an appeal, Title Appeal No. 153 of 1981, which was allowed by the Subordinate Judge, Feni; the suit was decreed on a finding that the plaintiff-respondent was not a "worker" but was an employee of the Corporation and was governed by the Corporation's Service rules. The defendant came with a revisional application before the High Court Division but it was dismissed and the appellate court's order was maintained on confirmation of the finding of the appellate court that the respondent was an employee of the Corporation and was governed by its Rules; but the learned Single Judge reserved his opinion as to whether the respondent was a "worker".

5. Leave was granted by us to consider the question whether the respondent is a worker under the relevant Labour law or whether he is an employee of the Corporation, governed by its Service Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any prayer for consequential relief.

6. We have heard lengthy arguments of the, learned Advocates for both the parties- Mr. Asraruful Hossain for the appellants and Mr. Mahmudul Islam for the respondent. Mr. Asrarul Hossain has contended that the order of the respondent’s dismissal itself shows that he was treated as a worker of the Mills and was dismissed by the "Employer" under section 17 of the Act and as such his only remedy lay in a "grievance petition" before the Labour Court under section 25 of the Act. Mr. Mahmudul Islam, on the other hand, has contended that the respondent was not a worker but was an 'employee', meaning a member of the Managerial staff. There is no dispute that if he is not a worker, then the order of dismissal .is illegal, for the provisions of the Act are not applicable to a person who is not a worker within the definition of 'worker' given in the Act. The onus to prove that he is not a worker lies upon him, firstly, because he is the plaintiff of the suit, and secondly, because he has been dismissed as a worker by his Employer under section 17 of the Act. In his plaint he did not give any particulars of the nature of his work which alone can bring him out of the' definition of 'worker' given in section 2(v) of the Act. He was Store-in-Charge of the Mills and as such, he claimed that he was not a worker but belonged to the Managerial staff. Worker has been defined as follows:

"2. (v)'worker' means any person including an apprentice employed in any shop , commercial establishment or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward,

whether the terms of employment be expressed or implied, but does not include any such person-

(i) who is employed mainly in a managerial or administrative capacity; or
(ii) who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature."

7. Respondent claimed that he got supervisory power, but there is nothing on record to support his claim. There are only two persons in the Store section of the Mills, one is the Store-clerk Yar Ahmed and the other is the Store-in-charge who is the respondent himself. In the judgment of the courts below the respondent has been referred to, in several places, as the Store Keeper. Mere designation is not sufficient to indicate whether a person is a 'worker' or an 'employer', but it is the nature of the work, showing the extent of his authority, which determines whether he is a worker or employer. Even if it is taken that he has supervisory function, still mere supervisory capacity will not bring him into the category of "employer". Sub-clause (ii) of clause (v) of section 2 of the Act shows that a person, who being employed in a supervisory capacity,"exercises function mainly managerial or administrative in nature" will fall into the category of employer. Respondent does not exercise any functions managerial or administrative in nature. He got no power to control or to supervise the work of any other person. Nature of his work does not bring him within the category of 'employer' which has been defined in clause (8) of section 2 as a person who is "concerned with the management and responsible to the owner for control of the industrial establishment". It is, therefore, clear that the respondent is not an ‘employer' but is a worker under the Act. It may be mentioned that the expressions, Managerial, Manager, are included in the definition of "employer". The trial court did not go deep into the matter to determine whether the plaintiff was a worker, but the appellate court came to a clear finding that the plaintiff was not a worker. This finding was challenged in revision before the High Court Division. The learned Single Judge left this all-important question undecided and observed that "assuming that the plaintiff is a worker, the question that remains to be considered in the instant case is whether the plaintiff being an employee of Bangladesh Textile Mills Corporation can be proceeded against under the provisions of the Employment of Labour (Standing Orders) Act, instead of under the B.T.M.C. Service Rules". This assumption is itself wrong, for the very moment it is found that the plaintiff is a worker; he is non-suited, because his suit filed under the Civil Procedure Code is not maintainable, specific remedy of his grievance lying in a separate forum the Labour Court, established under the Industrial Relations Ordinance, 1969, as amended upto date.

8. Mr. Mahmudul Islam does not dispute that if the respondent is a worker, his remedy lies only in an application before the Labour Court. Mr. Asrarul Hossain has in this connection referred to a decision of the High Court Division in the case of Jogesh Chandra Datta v. Government of Bangladesh, 30 DLR 219. There the question of implied ouster of the civil court's jurisdiction by a special law namely, the Customs Act, was considered. It was held there that "where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute". The forum of Labour Court' has been created by special statutes, as distinguished from a general law, the Civil Procedure Code; as such provisions of the special statutes shall prevail over those of the general law. Respondent being a worker and dismissed from service as such under the labour law, his suit in the civil court against the order of dismissal is not maintainable.

9. Mr. Asrarul Hossain, as appears, is more worried by the High Court Division's decision that the respondent is an employee of the Corporation than by its decree that the respondent's dismissal is a nullity. Obviously so, for if a person who is not an employee of the Corporation but is foisted upon it by a court's decision, then serious consequences will follow. It is the serious contention of the appellant that the respondent is not an employee of the Corporation but is a worker of the Dosta Textile Mills which is an industrial unit under the Corporation having its separate entity and maintaining its corporate character, as distinguished from the Corporation, which is simply a Coordinating Organisation for exercising general supervision and¹ control over the Unit without any merger therewith. Both the appellate court and the learned Single Judge proceeded under the erroneous assumption that since the Dosta Textile Mills was, after nationalisation, placed under the Corporation all employees of the Mills are necessarily employees of the Corporation. The question whether an industrial unit or enterprise, placed under a Sector Corporation, has got a separate entity and maintains its corporate character, has been decided by this Court in two previous cases New Dhaka Industries Ltd. v. Quamrul Huda and others, 31 DLR (AD) 234 and Motaher Hossain Khan v. Bangladesh Jute Mills Corporation, 36 DLR(AD) 282. It has been held in those two decisions that placement of an enterprise or company under the control and supervision of a Corporation in pursuance of the provisions of the President's Order No. 27 of 1972 does not necessarily destroy its corporate character but it retains this character as a separate entity, and hence, the previous relationship between the company/enterprise and its employees continues as before. In the last mentioned case, three Jute Mills, namely, United Jute Mills Ltd., Meghna Jute Mills Ltd. and Chandpur Jute Mills Ltd., were placed under the Bangladesh Jute Mills Corporation for administrative purposes, and it was held that each of the three Jute Mills retained its separate entity and that an employee working in United Jute Mills remained an employee of that Mills even after the said Jute Mill was placed under the Bangladesh Jute Mills Corporation.

10. Mr. Mahmudul Islam has, however, referred to an observation of this Court in the case of Mosharraf Hossain Chowdhury v. General Manger, Titas Gas Transmission & Distribution Co. Ltd. 1981 BLD (AD) 61, to the effect that "the law of master and servant will not apply to the employees of a nationalised company which has lost its corporate character; such employees will be treated as employees of the Corporation". This observation is governed by the expression 'if in the sentence. It clearly shows that' if' on nationalisation, the company lost its separate entity, then it will be merged with the Corporation; but whether it lost it is to be determined by examining the provisions of P.O. 27 of 1972, along with Memorandum and Articles of Association and the actual working of the company. This observation, therefore, does not come in aid of the respondent of the instant case in any way. The respondent was appointed by the Dosta Textile Mills as an employee in 1961 and he continued in the service of the Mills even after its nationalisation and placement under the Corporation. He has been drawing his salary from the Mills all-through and not from the Corporation and finally he has been dismissed by the Mills Authorities and not by the Corporation. In his suit he claimed to be an employee of the Corporation but did not make the Corporation a party to the suit. Again, Service Rules of the Corporation have excluded from their ambit all 'workers', obviously because when an employee is found to be a worker, whether he belongs to the Corporation or to any enterprise of the Corporation, he will be governed by the Labour law, (such as the Act). These Rules came into force in 1981, whereas the respondent was dismissed in 1977, when there were no such Rules; at that time all officers and employees of the Corporation were governed by the ordinary law of master and servant. Therefore, the finding of the High Court Division that the respondent was an employee of the Corporation or that he was governed by "B.T.M.C. Service Rules" is palpably erroneous.

11. As to whether the suit is hit by section 42 of the Specific Relief Act, it is found, the relief claimed in the plaint is for a simple declaration that the order of dismissal is illegal; there is no prayer for any consequential relief, such as, he is still in service or a direction to allow him to resume his duty, etc. Mr. Asrarul Hossain has further contended that the suit is not maintainable as the respondent got no "legal character" which can be declared under Section 42. In support of this contention he has referred to a decision of the Pakistan Supreme Court in the case of M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC) 365. In that case the plaintiff was an employee of a private Bank and being removed from service he sought a declaration under section 42 that the removal was illegal, and it was held that section 42 of the Specific Relief Act was not applicable to his suit as he was governed by the law of master and servant. However, in view of our findings above that the respondent is a worker and that he is not an employee of the Corporation who’s Service Rules resume his duly etc. Mr. Asrarul Hossain has further contended that the suit is not maintainable as the respondent-got no "legal character" which can be declared under Section 42. In support of this contention he has referred to a decision of the Pakistan Supreme Court in the case of M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC), 365. In that case the plaintiff was an employee of a private Bank and being removed from service he sought a declaration under section 42 that the removal was illegal, and it was held that section 42 of the Specific Relief Act was not applicable to his suit as he was governed by the law of master and servant. However, in view of our findings above that the respondent is a worker and that he is not an employee of the Corporation whose Service Rules are not applicable to his case, the suit is not maintainable. We, therefore, need not decide this question whether the suit is also his by section 42.

12. In the result, the appeal is allowed; the impugned judgments of the High Court Division and the lower appellate court arc set aside and that of the trial court is restored, though on different grounds. No order as to costs.

Ed.

Serajul Hoque Majumder Vs. Bachchu Mia Mojumder and others

Case No: Civil Petition for leave to appeal No.630 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Shahabuddin Ahmed,,

Citation: IV ADC (2007) 967

Case Year: 2007

Appellant: Serajul Hoque Majumder

Respondent: Bachchu Mia Mojumder and others

Subject: Property Law,

Delivery Date: 2006-08-20

Serajul Hoque Majumder Vs. Bachchu Mia Mojumder and others
IV ADC (2007) 967

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Md. Tafazzul Islam J

Serajul Hoque Majumder.....Petitioner
Vs.
Bachchu Mia Mojumder and others....Respondents

Judgment
August 20, 2006.

State Acquisition and Tenancy Act, 1950
Section 96
Registration Act, 1908
Section 47

It was the case of the defendants that the suit so filed was barred by limitation and the suit as framed is not maintainable. It was also the case of the defendants that the kabalas on the basis of which defendant No.96 is claiming the land are ante-dated kabalas and the same have been brought into existence during the pendency of the pre-emption case, that defendant No.9 who contested the case did not disclose about the transfer to the plaintiffs, that plaintiffs were not necessary parties in the re-emption case, that no fraud was committed in obtaining the order in the Miscellaneous case and that the judgment and order passed in the Miscellaneous case is quite legal. ….. (3)

The trial Court decreed the suit on the finding that the plaintiffs have been able to establish their case and the suit is quite maintainable and the same is not barred by limitation. The trial Court also held that the plaintiffs are in possession of the land in suit and they have their homestead in the land in suit that defendants failed to dislodge the evidence of P.W. 2 who have deposed that the plaintiffs are in possession of the land in suit. …. (4)

Lawyers Involved:
Shahabuddin Ahmed, Senior Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record - For the Petitioner.
Md. Nawab Ali, Advocate-on-Record - Respondent Nos. 1-8.
Not Represented – Respondent Nos. 9 -73.

Civil Petition for leave to appeal No.630 of 2005
(From the judgement and order dated 13.1. 2004 passed by the High Court Division in Civil Revision No.744 of 1997).

Judgment

Md. Ruhul Amin J. - This petition for leave to appeal is against the judgment dated January 13, 2004 of a single Bench of the High Court Division in Civil Revision No. 744 of 1997 making the Rule absolute upon setting aside the judgment and decree dated July 6, 1996 of the 3rd Court of Subordinate Judge (now Joint District Judge) Comilla, in Title Appeal No. 76 of 1994 dismissing the same and thereby affirming the judgment and decree; dated February 28, 1994 of the Court of Assistant judge, Nangalkot, Comilla in Title Suit No. 24 of 1991 decreeing the same. The suit was filed seeking declaration that the judgment and order dated June 29, 1987 passed in Miscellaneous Case (pre-emption) No. 6 of 1984 of the Court of ssistant Judge, Nangalkot was fraudulent and as such liable to be set aside.

2. It was the case of the plaintiffs that certain Elahi Baksha had interest to the extent of 8 annas 6 gondas and 2 karas in the property described in the schedule 1 by inheritance from his mother and Elahi Baksha died leaving 2 daughters, by name, Syedennessa and Jobeda Khatun and 2 sons, Hasanuzzaman and Joynal Abedin and a widow by name Khatijan Bibi who died leaving 2 sons, defendant No.1 and another and 2 daughters, that Hasanuzzaman died leaving 3 sons and 3 daughters, that defendant No. 10, daughter of Ellahi Baksha transferred the schedule land to her co-sharer defendant No.9 and he is possessing the same, that defendant No. 9 transferred 26 decimals of land from the land of schedule No.1 to defendant No. 69 by the kabala dated March 4, 1984 and also transferred 12 decimals of land from the land of schedule No.1 by the kabala of the same date to the plaintiffs, that plaintiffs and the defendant No. 69 purchased 38 decimals of land and developed the same by earth; filling and constructed homestead and are possessing the same. Defendant No.1, now deceased, was aware of the purchase, development and possession of the land, that defendant No. 9 is a co-sharer by inheritance. Defendant No.1 since deceased (survived by defendant Nos. 2-8) filed Miscellaneous Case No. 6 of 1984 under Section 96 of the State Acquisition and Tenancy Act on February 26, 1984. Defendant No.9, vendor of the plaintiffs, contested the said case. The Miscellaneous Case was allowed on June 29, 1987 and as against that defendant No.9 filed Appeal being Miscellaneous Appeal No. 88 of 1987 but the defendant No. 9 withdrew the same on being influenced by the defendant Nos.2-8, that the plaintiffs after having had knowledge about the judgment of the Miscellaneous Case filed the suit seeking the relief as stated hereinbefore.

3. The suit was contested by the defendant Nos. 1-8 by filing written statement denying the material averments made in the plaint. It was the case of the defendants that the suit so filed was barred by limitation and the suit as framed is not maintainable. It was also the case of the defendants that the kabalas on the basis of which defendant No.96 is claiming the land are ante-dated kabalas and the same have been brought into existence during the pendency of the pre-emption case, that defendant No.9 who contested the case did not disclose about the transfer to the plaintiffs, that plaintiffs were not necessary parties in the re-emption case, that no fraud was committed in obtaining the order in the Miscellaneous case and that the judgment and order passed in the Miscellaneous case is quite legal.

4. The trial Court decreed the suit on the finding that the plaintiffs have been able to establish their case and the suit is quite maintainable and the same is not barred by limitation. The trial Court also held that the plaintiffs are in possession of the land in suit and they have their homestead in the land in suit that defendants failed to dislodge the evidence of P.W. 2 who have deposed that the plaintiffs are in posession of the land in suit.

5. It may be mentioned the Miscellaneous Case No. 6 of 1984 was filed on Februay 26, 1984 to pre-empt the transfer that took place on February 20, 1982 and the prayer for pre-emption was allowed on June 29, 1987.

6. The suit was filed stating that the plaintiffs came to know about the order of pre-emption initially on December 8, 1990 and that become definite about the order allowing the Miscellaneous Case on obtaining certified copy on February 5, 1991. The plaintiffs claim is based on Ext.1 i.e. the kabala executed on November 7, 1983 and registered on March 4, 1984 and also based on Ext. 2 i.e. a kabala executed on Februay 14, 1984 and registered on March 4, 1984.

7. The defendant went on appeal. The appellate Court dismissed the appeal on the finding that from the evidence on record it is seen that the plaintiffs and defendant No. 9 have title in the land of item No. 1 of schedule 1 and they are in possessing of the said land and that order of pre-emption was obtained in Miscellaneous Case No.6 of 1984 without impleading the plaintiffs and the defendant No. 69 and as such the order of pre-emption so obtained is fraudulent and liable to be set aside and that if the same is not set aside the plaintiffs and the defendant No. 69 would be prejudiced, that the suit is not barred by limitation and as such plaintiffs are entitled to the relief sought in the suit and the suit as framed is quite maintainable.

8. The defendants moved the High Court Division in revisional jurisdiction. The High Court Division in the facts of the case, particularly because of the Exts. 1 and 2 on the basis of which the plaintiffs and the defendant No. 69 claimed title, held that plaintiffs and defendant No.69 were not necessary parties in the Miscellaneous Case and as such order obtained in the Miscellaneous Case without impleading the plaintiffs and the defendant No. 69 cannot be said to have been obtained fraudulently. The High Court Division also held that plaintiffs and defendant No. 69's vendor contested the Miscellaneous case and he lost in the same and that although he filed appeal but ultimately withdrew the same. The High Court Division finally held that the courts below in mis-construction of the document Exts. 1 and 2 decreed the suit on the finding that plaintiffs were necessary parties in the miscellaneous Case and that order of the Miscellaneous Case as was obtained without impleading the plaintiffs the same was fraudulent.

9. We have heard the learned Counsel for the petitioner and perused the materials on record. The Miscellaneous Case No. 6 of 1984 (filed on February 26, 1984) was filed seeking pre-emption of the transfer for pre-emption was allowed by the order dated June 29, 1987. The plaintiffs are claiming title in the land of item No.1 of schedule 1 on the basis of their purchase by Exts.1 and 2. It is seen from the materials on record that Ext.1 was executed on November7, 1983 and was registered on March 4, 1984 and that Ext. 2 was executed on February 14, 1984 and the same was registered on March 4, 1984. It is evident that he transfer sought to be pre-empted in Miscellaneous Case No.6 of 1984 took place at a time when the plaintiffs did not acquire any interest in the land of the holding. In that view of the matter we are of the view High Court Division was not in error in dismissing the suit. The learned Counsel for the petitioner although argued that on the registration of the document on March 4, 1984 title of the plaintiffs in view of the provision of section 47 of the Registration Act become perfect on and from the date of the documents so executed and in the instant case execution of the Exts.1 and 2 being prior to the filling of the Miscellaneous case, the plaintiffs were very much necessary party in the Miscellaneous Case. The contention so made is not legally well conceived since in the Miscellaneous Case No. 6 of 1984 preemption was sought in respect of the transfer that took place on February 20, 1982 and as such the pre-emptor was required to implead in the Miscellaneous Case those who were the co-sharers on February 20, 1982 and not the person who have acquired interest in the land of the holding subsequent to the transfer sought to be pre-empted and as such the High Court Division has quite correctly held that the plaintiffs were not necessary parties in the Miscellaneous Case and consequent thereupon order of pre-emption obtained therein without impleading the plaintiffs was not a fraudulent one.

10. In the light of the discussions made hereinbefore we find no substance in the petition.
Accordingly the petition if, dismissed.
Ed.

Serajul Huq and others Vs. Bangladesh

Case No: Civil Appeal No. 247 of 2001

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Mohsin Rashid,,

Citation: 61 DLR (AD) (2009) 88

Case Year: 2009

Appellant: Serajul Huq and others

Respondent: Bangladesh

Subject: Property Law,

Delivery Date: 2007-05-24

Serajul Huq and others Vs. Bangladesh
61 DLR (AD) (2009) 88

Supreme Court
Appellate Court
(Civil)

Present:
Md. Ruhul Amin CJ
M.M.Ruhul Amin J
Md. Tafazzul Islam J
Md. Hassan Ameen J

Serajul Huq and others.........................Appellants
Vs.
Bangladesh represented by the Secretary, Ministry of Works, Bangladesh Secretariat, Dhaka and others.............Respondents.

Judgment
May 24, 2007.

Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985)
Sections 5(2) & 7
Bangladesh Abandoned Property (Control, Management & Disposal) Order (PO 16 of 1972)
Section 2 (1)

Legitimate inference as to whereabouts—The very fact that Md Hanif regularly drew pension from the Government Exchequer from 1-7-1972 till August 1981 leads to the only legitimate inference that his whereabouts were very much known to the Government and thus the appellants discharged their onus by rebutting the presumption that the above house is an abandoned house and in view of the above and on the face of the contents of Annexure D,E and E(1) along with acknowledgement receipts, and the facts of this case being different, the principle laid down in 49 DLR (AD) 26 will not be applicable in the present case.

Case referred to-
Bangladesh Vs. Md. Jalil 49 DLR (AD) 26.

Lawyers Involved:
Mohsin Rashid, Advocate, instructed by M. G. Bhuiyan, Advocate-on-Record-For the Appellants.
ASM Khalequzzaman, Advocate-on-Record- For the Respondents.

Civil Appeal No. 247 of 2001
(From the judgment and order dated 9.12.1996 passed by the High Court Division in Writ Petition No. 321 of 1989)

Judgment:

Md. Tafazzul Islam J.- This appeal, by leave, has arisen out of the judgment and order dated 9.12.1996 of the High Court Division passed in Writ Petition No. 321 of 1989 discharging the Rule obtained against the judgment and order dated 19.1.1988 of the Court of Settlement Dhaka passed in Case No.566 of 1987 dismissing the case.

2. Brief facts for disposal of this appeal are that the appellants and their predecessors filed the above Case No.566 of 1987 in the Court of Settlement Dhaka stating that their predecessor Md. Hanif migrated from India to the then East Pakistan along with his wife Aliman Khatoon and son Serajul Huq, the petitioner Nos.1 and 2 in the above case, and his other two sons Shamsul Huq and Aynul Huq, the petitioner Nos. 3 and 4 in the above case who are the appellant Nos. 2 and 3 herein, were born in Bangladesh; Md. Hanif, who was a Government servant, having retired from service in the year 1964, had been living in Bangladesh with his family as citizens thereof and while drawing, pension from the exchequer of the Government as a retired Government servant he died at Mirpur, Dhaka on 3.9.1981 leaving behind the petitioners in the above case as his successors and to that effect the above successors, Aliman Khatoon, Serajul Huq, Shamsul Huq and Aynul Huq, also obtained a certificate from the Court of District Delegate Judge, Dhaka in Succession Certificate Case No. 365 of 1985; Md. Hanif, who drew pension money from the exchequer of the Government upto 31.8.81, was the owner in possession of a house situated at Plot No. 43, Road No.2, Block-B, Section-1, Mirpur Housing Estate, Mirpur, Dhaka, which he got under a lease deed dated 1.12.1961 for a period of 99 years on payment of full cost of Tk. 2700/- to the Government; while the said Md. Hanif and his wife and sons were in peaceful possession of the said house, Bangladesh was liberated on December 16, 1971 followed by some law and order situation and in the abnormal circumstances, then prevailing, Md. Hanif and his wife and sons were dispossessed from the said house in the last week of March, 1972 by the anti-social elements who also looted their belongings and house-hold effects including the original documents of title and occupied the above house; during his life time Md. Hanif made several representations to different authorities for release of the said house from the list of abandoned properties but in vain and he died on 3.9.1981; thereafter the said house being enlisted in "Ka" List as an abandoned property the above Aliman Khatoon, Serajul Huq, Shamsul Huq and Aynul Huq filed application under section 7 of the Abandoned Buildings (Supplementary Provisions) Ordinance 1985, Ordinance No.54 of 1985, for release of the said house from Ka List which was registered as Settlement Case No. 566 of 1987 in the Court of Settlement, Dhaka and the respondents herein, who were the opposite parties in the above case, did not contest the above case and after hearing the Court of Settlement dismissed the case. As against that the above heirs of Md. Hanif moved the High Court Division and obtained Rule in Writ Petition No. 321 of 1989 and the High Court Division, after hearing, discharged the Rule holding, inter alia, that the above heirs failed to rebut the presumption regarding the abandoned character of the above house. In the meantime Alima Khatoon died.

3. Leave was granted on the submissions that the property in question was allotted to Md. Hanif, predecessor of the petitioners, who was a Government servant and he constructed a house in the said property and died in Bangladesh in the year 1981 and he withdrew his pension up to the last day of his life and in such a situation the Court of Settlement as well as the High Court Division committed error in holding that whereabouts of Md. Hanif were not known since liberation of Bangladesh in as much as this very fact of drawing pension from Government Exchequer up to 31.8.1981 is sufficient to prove that Md. Hanif was living in this country as a citizen till his death on 3.9.1981 and further the Certificate dated 30.4.85 issued by the District Accounts Officer Dhaka, and the Pension Book of Md. Hanif, which were filed before the Court of Settlement as Exts.1 and 2 and before the High Court Division as Annexures C and C(1), were most illegally and arbitrarily rejected by both the Courts and the above Pension Book and the Certificate if properly considered, will lead to the only legitimate inference that the whereabouts of Md. Hanif were very much known to the Government since liberation till 1981 as during the above period the Government admittedly paid him pension from its exchequer and in that view of the matter the Court of Settlement ought to have found that the above house is not abandoned property and further the High Court Division also committed error in observing that the writ petitioners failed to rebut the presumption of abandoned character of the property.

4. The learned counsel for the writ petitioner/appellants submitted that the High Court Division failed to consider that Md. Hanif drew his pension from the exchequer of the Government of Bangladesh from 1.7.72 to 1981 by his Pension Book which lead to the only "legitimate inference" that whereabouts of Md. Hanif were very much known to the Government for the period from 1972 till 1981 and the above admitted payment of pension by the Government from its exchequer to Md. Hanif rebuts the presumption that the above house became abandoned property and in that view of the matter the Court of Settlement and the High Court Division fell in error in not releasing the said house from Ka List.

5. The learned counsel for the respondents submitted that in support of the case of the appellants, only the appellant No. 1 deposed before the Court 5 of Settlement and no other witness corroborated him and that the appellants also failed to produce domicile certificate and also failed to prove that Md. Hanif died on 3.9.1981 and further the above house, being in exclusive possession of the Government through allotees, the inclusion of the same in the 'Ka' List is not illegal and further Md. Hanif, being out of possession from the above house since March 1972, under the provisions of section 2(1) of the Bangladesh Abandoned Properties (Control, Management and Disposal) Order, 1972, P.O. 16 of 1972, the above house came within the mischief of the abandoned property and the said house having been included in the 'Ka' List, a presumption also arises to the effect that the above house is an abandoned property and the appellants having failed to rebut the above presumption, High Court Division rightly discharged the Rule.

6. In the case of Bangladesh Vs. Md. Jalil 49 DLR (AD) 26, it has indeed been held that section 5(2) of the Ordinance clearly provides that the list published under sub-section (1)    shall be conclusive evidence of the fact that the buildings included therein are abandoned property and has vested in the Government as such, section 7 provides that a person claiming any right or interest in any such building may make an application to the Court of Settlement for exclusion of the building from such list on the ground that the   building is   not an abandoned building and has not vested in the Government under President's Order No.16 of 1972 or that his right or interest in the building has not been affected by the provisions of that Order and so the onus, therefore, is squarely on the claimant of the building to prove that the building is not an   abandoned property and the Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant.

7. But in the present case the claimant of the building discharged the onus in as much as by letter dated 30.4.2005 which has been marked as Ext. 1 in the Court of Settlement and has also been annexed as Annexure-C to the writ petition, the District Account Officer, Dhaka informed Aliman Khatoon that Md. Hanif retired from service in the year of 1964 and he drew his pension money up to 31.8.81 from the Dhaka Treasury regularly, his P.P.O number being 12492, and further the Pass Book of Md. Hanif, which has been marked as Ext.2 in the Court of Settlement and has also been annexed as Annexure C(1) to the writ petition shows that Md. Hanif drew his last pension on 31.8.81; further Annexure-D to the writ n petition also shows the Md. Hanif, by his letter dated 3.7.73, requested SDO (Sadar), South Dhaka, for handing over possession of the above house to him stating that he is a permanent resident of Dhaka and also citizen of Bangladesh and the above house, immediately alter liberation was occupied by some unauthorized people and in the said letter Md. Hanif showed his address at Murapara Camp No. 14, Mirpur Dhaka; moreover Md. Hanif, by his letter dated 27.10.1975, Annexure-D(1) to the writ petition and addressed to the Secretary, Ministry of Housing and Public Works also prayed for release of the above house; further by letter dated 15.8.83, Annexure-E to the writ petition, which was addressed to the then Chief Martial Law Administrator, Aliman Khatoon prayed for release of the above house stating that her husband Md. Hanif expired on 3.9.1981 and from the contents of acknowledged receipts of the above letter, which were also annexed in the writ petition, it also appears that the above letters were duly received by the authorities to whom those were addressed.

8. Further the contents of the letter dated 17.3.1986, Annexure-E (1) to the writ petition, shows that Mr. T.C.Chakma, the Senior Scale Section Officer of the Ministry of Works informed Aliman Khatoon to furnish necessary papers to meet the following quarries-
১।বাড়ীর মূল লীজ গ্রহীতা মালিক কি মোহাম্মদ হানিফ?
২। তিনি জীবিত অবস্থায় কোন সময়ে মালিকানা দাবী করিয়াছেন কি?
৩। ট্রেজারী সার্টিফিকেট দেখা জায় তিনি ১৯৬৪ সালে সরকারী চাকুরী হইতে অবসর গ্রহন করিয়াছিলেন
৪। স্বাধীনতার পর তিনি কোথায় কিভাবে ছিলেন?
বাংলাদেশ সরকারের অধীনে তিনি কোন চাকুরী করেন নাই।কাজেই স্বরাষ্ট্র মন্ত্রিনালয় হইতে জাতীয়তা সনদ অবশ্যই প্রয়োজন। মুল মালকের কোন দাবী নাই অথচ উত্তরাধিকারী দাবী করেন কি?

9. Then by letter dated 21.4.86, Annexure-E (1) of the writ petition, Aliman Khatoon in her reply stated that-
১। হাঁ, উক্ত বাড়ীর মালিক লীজ গ্রহীতা মোঃ হানিফ। উল্লেখিত বাড়ীর মালিক লীজ গ্রহীতা আমার মৃত স্বামী মোঃ হানিফ, পিতা মৃত শেখ নাখু মিয়া, যাহা ১৮/১২/১৯৬১ তারিখে রেজিষ্ট্রিকৃত ৭৩৭৪ নং যাহার ফটোকপি আপনার দপ্তরে পূর্বেই দাখিল কৃত, লীজ দলিলে দ্রষ্টব্য। উক্ত দলিলটি বই নং ১ ভলিউম -৭৫ এ ২৫৩ পাতা হইতে ২০৮ পাতায় লিপিবদ্ধ আছে।
মোঃ হানিফ এর মৃত্তুর পর আমি এবং আমার তিন ছেলে তাহার উত্তরাধীকারী এবং উক্ত বাড়ীর মালিক।
২। আমার স্বামী জীবিত অবস্থায় ১৯৭২ সন হইতে এস্,ডি,ও (সাউথ) ঢাকা ও বিভিন্ন কর্তৃপক্ষের নিকত তাহার বাড়ীর দখল ফিরিয়া পাইবার জন্য আবেদন করিয়াছিলেন। রেজিষ্ট্রিকৃত ডাকযোগে সচিব, পূর্তমন্ত্রনালয়কে ২৭/১০/৭৫ তারিখে আমার স্বামীর প্রেরিত দরখাস্ত দেখিবার জন্য অনুরোধ করা হইল।
৩। ট্রেজারী সার্টিফিকেট হইতে দেখা যায় যে,মৃত মোঃ হানিফ ১৯৬৭ সন হইতে ৩১/৮/৮১ তারিখ পর্যন্ত ঢাকা ট্রেজারী হইতে পেনশন গ্রহন করিয়াছেন।ইহা হইতে একথা সন্দেহাতীত ভাবে প্রমানিত হয় যে ঢাকা ট্রেজারী হইতে পেনশন গ্রহন করিয়াছেন। ইহা হইতে একথা সন্দেহাতীত ভাবে প্রমানিত হয় যে তিনি উক্ত সময়ে বাংলাদেশে স্থায়ী ভাবে বসবাস করিয়াছেন এবং সরকারী নিয়মানুযায়ী পেনশন গ্রহন করিয়াছেন,যাহাতে তাহার নাগরিকত্ত সন্দেহাতীতভাবে প্রমানিত।
৪। স্বাধীনতার পর হইতে মৃত মোঃ হানিফ তাহার স্ত্রী আবেদঙ্কারিনী আলিমুন খাতুন অ তাহার তিন পুত্র সহ ১২-ডি, ১৫/৩৪ মিরপুর ঢাকা এই বাড়ীতে অবসর প্রাপ্ত সরকারী পেনশন ভোগী হিসাবে বসবাস করিতেনে এবং তাহার স্বামীর ৩/৯/১৯৮১ তারিখে মৃত্তু বরন করার পর আমি আমার তিন পুত্র সহ উক্ত বাড়ীতে বসবাস করিতেসি।
বাংলাদেশ স্বাধীন হবার পর প্রত্যেক সরকারীজীবির ন্যয় পেনশন ভোগীদের পৃথক বসবাস ফরমে বাংলাদেশ সরকারের প্রতি আনুগত্য স্বীকার করার পরই বেতন এবং পেনশন প্রদান করা হইয়াছে। আমার স্বামী ১৯৬৪ সন হইতে তাহার মৃত্তুর আগ পর্যন্ত অর্থাৎ আগষ্ট ১৯৮১ সন পর্যন্ত নিয়মিত পেনশন গ্রহন করিয়া গিয়াছেন। বাংলাদেশ সরকারের পেনশন ভোগীরা অবসর প্রাপ্ত সরকারী কর্মচারী। তারাও বাংলাদেশের নাগরিক। সূতরাং আমার স্বামী বাংলাদেশী এবং তাহার পেনশন বই জাতীয়তার প্রমান পত্র। তিনি পেনশন ভোগ কালে মৃত্তু বরন করেন এবং তাকে মিরপুর কবরস্থানে দাফন করা হয়। কবর স্থানের সার্টিফিকেটের ফটোকপি এতদসঙ্গে দেওয়া হইল।
আমার স্বামীর মৃত্তুর পর আমি পুর্তমন্ত্রানালয়, এবং মাননীয় প্রধান সামরিক আইন প্রশাসকের নিকত আমার মৃত স্বামীর বাড়ীটি ফেরয় পাওয়ার আবেদন জানাই এবং আপনার দপ্তরে ব্যক্তিগতভাবে স্বাক্ষাতকার দেই এবং প্রয়োজনীয় কাগগপত্র/প্রমান পত্র দাখিল করি। কিন্তু অদ্যাবধি উক্ত বিষয়ে কোন বাস্তব কার্যকরী পদক্ষেপ গ্রহনের অভাবে আমি অতি কষ্টে দিনাতিপাত করিতেছি।
উল্লেখিত বিবরনের আলোকে আমার স্বামীর বাড়ী (উল্লেখিত বাড়ীটি) তাহার উত্তরাধিকারীনি হিসাবে আমাকে ফেরত দিবার প্রয়োজনীয় ব্রবস্থা হিসাবে বাড়ীটি পরিত্যক্ত সম্পত্তি নহে ঘোষনা করিয়া বাড়ীর খালি দখল আমাকে বুঝাইয়া দিয়া বাধিত করিবেন”।

10.The very fact that Md. Hanif regularly drew pension from the Government Exchequer from 1.7.72 till August 1981 leads to the only legitimate inference that his whereabouts were very much known to-the Government and thus the appellants discharged   their onus by rebutting the presumption that the above house is an abandoned house and in view of the above and on the face of the contents of Annexure D, E and E(1) along with acknowledgement receipts, and, the facts of this case being different, the principle laid down in 49 DLR(AD) 26 will not be applicable in the present case. Accordingly in the facts and circumstances of the present case the High Court Division erred in law in observing that after liberation the whereabouts of Md. Hanif were not known and the owner of the above house failed to manage and supervise the property.

11. Accordingly the above judgment and order of the High Court Division, being not sustainable, is set aside. It is declared that the enlistment of above house situated at Plot No. 43, Road No.2, Block-B, Section-1 Mirpur Housing Estate, Dhaka in the "Ka" List of the abandoned properties is without lawful authority and is of no legal effect and it is directed that the said property be released from Ka List of abandoned properties and the possession   thereof be delivered to the appellants.

12. The appeal is allowed without any order as to costs.
Ed.

Serajul Islam (Md) Vs. The Director General of Food, 42 DLR (AD) (1990) 199

Case No: Civil Petition for Leave to Appeal No. 64 of 1990

Judge: Shahabuddin Ahmed ,

Citation: 42 DLR (AD) (1990) 199

Case Year: 1990

Appellant: Serajul Islam (Md)

Respondent: The Director General of Food

Subject: Constitutional Law,

Delivery Date: 1990-3-27

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J

Serajul Islam (Md)
…………..............Petitioner
Vs.
The Director General of Food
…………………...Respondent

Judgment
March 27, 1990

The Constitution of Bangladesh, 1972,
Articles 35, 102, 117
Bar to conviction and punishment more than once for the same offence as referred to in Article 35 relates to criminal prosecutions. 'Double jeopardy', which has been defined in Black's Law Dictionary, means danger of being convicted and punished more than once on same facts constituting offence in a criminal proceeding only. It is to be seen whether this principle may be extended to punishment of a public servant in a departmental proceeding which is also governed by law. Before that, it is to be determined whether a fresh departmental proceeding is at all barred after conclusion of an earlier proceeding on the same facts. If the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to fundamental rights and the Tribunal is competent to enforce the statute. The matter, arising from a departmental proceeding relating to terms and conditions of service of the petitioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitution. …………… (4)

Lawyers Involved:
Abdur Rab Chowdhury, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Petitioner.
Not represented— The Respondent.

Civil Petition for Leave to Appeal No. 64 of 1990
(From judgment and order dated 18.2.90 passed by the High Court Division, Dhaka, in Writ Petition No. 309 of 1990.

JUDGMENT

Shahabuddin Ahmed CJ.

1. Petitioner, a Government servant, is seeking leave to appeal from an order of the High Court Division dated 18 February, 1990 summarily dismissing his writ petition (No. 309 of 1990). By the said writ petition he had challenged an order of the Director General of Food drawing up a departmental proceeding against him.

2. Petitioner was Inspector of Food and In-charge of Sylhet LSD at the relevant time. On the allegation of gross neglect of duty i.e. his failure to take action for recovery of loss on account of Railway transit shortage amounting to Tk. 47.9 lacs a charge-sheet was submitted against him on 1 February 1987 by the Regional Controller of Food, who, however, cancelled that charge-sheet and issued a fresh charge-sheet on 6 June 1987 asking him to show cause why he would not be dismissed from service or otherwise punished for gross neglect of duty. On submission of his explanation the matter was enquired into by an Inquiry Officer and the Director, Food, on consideration of the report, let him off with a warning by an order dated 3 December 1987. The Director General of Food ignoring this order issued a fresh charge-sheet on 30 January 1990 on the same allegation. It is this charge-sheet which the petitioner challenged in his writ petition on the ground of violation of his fundamental rights under Articles 27, 31 and 35 of the Constitution particularly the latter, which prohibits conviction and punishment of a person twice on the same offence. The learned Judges of the High Court Division held that the principle of 'double jeopardy' as embodied in Article 35 of the Constitution is not applicable to a departmental proceeding against a Government Servant and that the matter being within the exclusive jurisdiction of the Administrative Tribunal established under Article 117 of the Constitution, the High Court Division has got no jurisdiction.

3. Mr. Abdur Rab Chowdhury, learned Advocate for the petitioner, contends that the matter does not relate to terms and conditions of service of the petitioner but it relates to fundamental rights guaranteed under the Constitution and it is the High Court Division alone which is competent to enforce fundamental rights under Article 44, read with Article 102 of the Constitution. The learned Advocate contends that the principle of 'double jeopardy' under Article 35 of the Constitution is applicable by analogy to punishment of Government Servants in a departmental proceedings as well. Learned counsel further contends that Article 31 of the Constitution which prohibits any action detrimental to life, liberty, reputation or property of any person except in accordance with law has been violated by the impugned proceeding.

4. We are not impressed by the arguments advanced by the learned Advocate. Protection in respect of trial and punishment, that is, bar to conviction and punishment more than once for the same offence as referred to in Article 35 relates to criminal prosecutions. 'Double jeopardy', which has been defined in Black's Law Dictionary, means danger of being convicted and punished more than once on same facts constituting offence in a criminal proceeding only. It is to be seen whether this principle may be extended to punishment of a public servant in a departmental proceeding which is also governed by law. Before that, it is to be determined whether a fresh departmental proceeding is at all barred after conclusion of an earlier proceeding on the same facts. In this case the earlier proceeding, drawn up on 6 June, 1987 against the petitioner, was disposed of by the Director of Food, whereas the impugned proceeding dated 30 January 1990 has been drawn up by the Director General, Food who is a higher authority than the Director. The learned counsel contends that even if these questions are determined in favour of the petitioner and the principle of double jeopardy is found applicable to a departmental proceeding, still the Administrative Tribunal has got no jurisdiction to give necessary relief by enforcing any fundamental right under the Constitution. We do not think so, for, if the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to Fundamental Rights and the Tribunal is competent to enforce the statute. The matter arising from a departmental proceeding relating to terms and conditions of service of the petitioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitution.

The petition is dismissed.

Ed.

Serajul Islam Vs. Bangladesh Consumer's Supply Company Ltd. and another, 45 DLR (AD) (1993) 100

Case No: Civil Petition for Leave to Appeal No. 355 of 1989

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Syed Amirul Islam,,

Citation: 45 DLR (AD) (1993) 100

Case Year: 1993

Appellant: Serajul Islam

Respondent: Bangladesh Consumer's Supply Company Ltd.

Subject: Labour Law,

Delivery Date: 1990-8-16

Supreme Court
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Latifur Rahman, J.

Serajul Islam
.................................Petitioner
Vs.
Bangladesh Consumer's Supply Company Ltd. and another
…………….............Respondents

Judgment
August 16th, 1990

Employment of Labour (Standing Orders) Act (VIII of 1965)
Section 18(6)
It is purely a matter of discretion of the employer to take into consideration previous good services of an employee before awarding him punishment.…. (3)

Lawyers Involved:
Syed Ameerul Islam, Advocate, Supreme Court, instructed by Sharifuddin Chaklader, Advocate-on- Record - For the Petitioner
Not Represented –The Respondents

Civil Petition for Leave to Appeal No. 355 of 1989
(From the Judgment and order dated 6.6.89 passed by the High Court Division, Dhaka, in Writ Petition No. 113 of 1987).

JUDGMENT

Shahabuddin Ahmed CJ.

Petitioner, dismissed employee of the respondent- Bangladesh Consumers Supply Co. Ltd. is challenging an order of the High Court Division dated 6 June 1989 reversing, in a writ petition, Labour Court's order for his reinstatement upon setting aside the employees order for dismissal.

2. He was a salesman under the respondent in their Dhanmondi shop. On the basis of an audit report he was suspended from his service and a regular charge-sheet was submitted to him asking him to show cause why he should not be dismissed for defalcation of Tk. 42,215/19. He denied the allegation saying that the audit report was wrong in that the handling shortage as permissible by two circular orders were not considered and further that he deposited the spoiled goods worth Tk. 8850.00. Being not satisfied with his explanation the defendant constituted a Committee of Enquiry. The petitioner appeared before the Committee and gave the same explanation, but the Committee submitted a report holding him guilty of misappropriation of the amount. The respondent, employer, deducted the value of the spoiled goods Tk. 8885/50 and held him guilty of defalcation of the balance of Tk. 33,329.89 and by an order dated 20.5.86 dismissed him from service. He challenged the dismissal by filing a complaint case before the 2nd Labour Court, Dhaka, which, after hearing the parties, set aside the order of dismissal and directed his reinstatement holding that in calculating the shortage the two circular orders, Ext. 11 and 12, were not considered. Respondent challenged the order of Labour Court by Writ Petition No. 113 of 1987; and the learned Judges of the High Court Division allowed the petition and reversed the Labour Court's order observing that the Labour Court exceeded its jurisdiction by sitting over the domestic tribunal's order as a court of appeal.

3. Mr. Syed Ameerul Islam, learned Advocate for the petitioner, has contended that the two circular orders, Ext. 11 and 12, allowed certain percentage of shortage and had these two circulars been taken into consideration there would have been no shortage at all. The learned Judges of the High Court Division took into consideration this very question and found that the report of enquiry itself shows that the two circulars as to permissible shortage were taken into consideration. The next contention of the learned Advocate is that the respondent while awarding the punishment disregarded the provision of section 18 (6) of the Standing Orders Act, 1965. The learned Judges found that this section gave discretion to the employer to take into consideration previous good service of an employee before awarding him punishment and observed that it was purely a matter of discretion of the employer. We, therefore, find no violation of any provision of law in High Court Division's order restoring the petitioner's dismissal from service. The petition is dismissed.

Ed.

Serina Begum and another Vs. Mofizul Islam and others

Case No: Civil Appeal No. 124 of 1984.

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. M Nurullah,Shah Md. Sharif,,

Citation: 42 DLR (AD) (1990) 77

Case Year: 1990

Appellant: Serina Begum and another

Respondent: Mofizul Islam and others

Subject: Property Law,

Delivery Date: 1989-03-12

Serina Begum and another Vs. Mofizul Islam and others
42 DLR (AD) (1990) 77

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Serina Begum and anr...............................................Appellant
Vs.
Mofizul Islam and ors............................................Respondents

Judgment
March 12, 1989.

The State Acquisition and Tenancy Act (XXVIII of 1951)
Section 96(3)(b)

The pre-emptor respondent prayed for leave to deposit the balance consideration money with statutory compensation which the appellants opposed and such conduct of the appellants signifies their intention to achieve something indirectly, that is frustrating the very pre-emption proceeding. The learned Munsif rightly granted the prayer and the High Court Division holding the same view. …………..(5)

Lawyers Involved:
M. Nurullah, Senior Advocate, instructed by Syed Sukhawat Ali, Advocate-on-Record—For the Appellants.
Shah Md. Sharif, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record—For the Respondent No.1.
Not represented. — Respondent Nos. 2-6 & 8-14.
Dead. Substitution exempted vide order dated 28.1.86. —Respondent Nos. 7 & 15.

Civil Appeal No. 124 of 1984.
(From the judgment and order dated 8.4.84 passed by the High Court Division, Dhaka in Civil Revision No. 438 of 1983).

Judgment

Badrul Haider Chowdhury J.-This appeal by special leave is directed against the judgment and order of the High Court Division in Civil Revision No. 438 of 1983.

2. It is a pre-emption case. Pre-emption Miscellaneous Case No. 160 of 1974 was instituted under section 96 of the State Acquisition and Tenancy Act in the Court of Munsif, 1st Court, Dhaka. Later it was transferred to the Court of Munsif, Gazipur and it was renumbered as Pre-emption Miscellaneous Case No. 109 of 1983. Pre-emption was sought with regard to .70 acres of land out of 3.22 acres and the pre-emptor deposited Taka 4000/- with compensation at the rate of 10% while filing the preemption case. The pre-emptees contended that the proportionate value of the pre-empted land would come to Tk. 8,680/- and since the deposit is short the application for pre-emption must fail.

3. It appears that on 16.11.83 the pre-emptor made an application before the trial Court for leave to deposit the balance consideration money with statutory compensation. This was objected to by the pre-emptees. The learned Munsif, however, allowed the application. Being aggrieved by this order the pre-emptee filed a Civil Revision and obtained the rule. It was contended that the application for preemption was filed with short deposit and as such it was an incompetent application. Facts may be noted Kabala under pre-emption is dated 8.4.74. Pre-emption case was filed on 2.5.74. Written objection was filed on 30.11.74. It was contended that the pre-emptor opposite party No. 1 had no opportunity in deposit the balance consideration with statutory compensation within four months of the dale of sale, because the petitioners themselves filed their written objection much later. It was contended before the learned Judge that the trial Court did not give the petitioners an opportunity of being heard nor did hold any enquiry as to the actual amount of the consideration money. The learned Single Judge considered section 96(3)(b) of the State Acquisition and Tenancy Act and noticed the circumstances when the Court may hold an enquiry after giving all the parties an opportunity of being heard for direction to deposit further sum if necessary within specified period. The learned Judge then observed:
"In the present case the pre-emptee petitioners cannot really complain of not gelling an opportunity of being heard and of not holding any enquiry, because the pre-emptor opposite party No. 1 and the Court accepted the proportionate valuation of the land under pre-emption as objected to by the petitioners themselves and if an enquiry was made, the proportionate value could not have been raised beyond the amount slated by the petitioners in their written objection. Surely the petitioners cannot assail the impugned order as without jurisdiction. It was passed very much within jurisdiction. The absence of any opportunity to the petitioners to show cause and the absence of any enquiry have not prejudiced the petitioners at all because both the pre-emptor and the Court have accepted the amount as given in the petitioners' written objection."

4. Leave was granted to consider the question whether a prayer for deposit of balance consideration beyond four months was accepted illegally.

5. Mr. M. Nurullah, the learned counsel appearing for the appellants, canvassed that, it was a statutory obligation on the part of the pre-emptor to deposit the balance consideration within the period and since he failed to do so the prayer was illegally granted. This point has no substance. The learned Single Judge of the High Court Division noticed that the present Miscellaneous Case No. 109 of 1983 was stayed at the instance of the opposite party No. 1 till the disposal of another Civil Revision case although the parties in that civil revision were different and that civil revision case was disposed of by the High Court Division on 24.5.81. Then when the pre-emptor respondent prayed for leave to deposit the balance consideration money with statutory compensation the appellants opposed that application. That clearly shows that the appellants were trying to achieve something indirectly namely, frustrating the very pre-emption proceeding. The learned Munsif rightly granted the prayer. The High Court Division was correct in taking the view.
In the result, this appeal is dismissed without any order as to cost.
Ed.

Shadharan Bima Corporation Vs. The First Court of Settlement and other

Case No: Civil Petition for Leave to Appeal Nos. 751-52 of 2004.

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Tufailur Rahman ,,

Citation: 13 MLR (AD) (2008) 241

Case Year: 2008

Appellant: Shadharan Bima Corporation

Respondent: The First Court of Settlement and other

Subject: Property Law,

Delivery Date: 2006-01-26

Shadharan Bima Corporation Vs. The First Court of Settlement and other
13 MLR (AD) 2008, 241

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Shadharan Bima Corporation...........................Petitioners (In both the cases)
Vs.
The First Court of Settlement and other................Respondents (In both the cases)

Judgment
January 26, 2006.

Abandoned Property (Management, Control and Disposal) Order 1972 (P.O. No. 16 of 197)
Section 5
The list of abandoned building prepared and published in the official Gazette has the presumption of correctness unless such presumption is rebutted by showing the contrary.

Appellate Division held that the petitioner is a bonafide purchaser for value without notice of any defects in title may be given preferential treatment while disposing of the said property by the Government and meanwhile directed the respondents not to disturb the possession of the petitioner in the disputed plot.

The High Court Division found that in the instant cases neither the original owner nor the original leasee were present before Court of Settlement and that the Court of Settlement, having considered all the materials placed before it, came to a positive finding that the above plot No.4 has been legally enlisted in the list of abandoned properties and that the Court of Settlement has given cogent reasons in support of its finding. …. (8)

However the fact remains that the petitioner, a statutory corporation, complied with all the necessary formalities before purchasing of the above plot and the acts and omissions of the government agencies as well as of RAJUK, the lessor of the above plot No.4, led the petitioner to treat the above plot as free from all encumbrances and any legal defect as to the title and further RAJUK after mutating the name of the respondent No.4 the original leasee also gave him permission to transfer the above plot in favour of the petitioner and after transfer RAJUK also mutated the name of the petitioner. Further, no apparent steps were also taken by the concerned authorities in respect of the above plot within the span of 10 years after the coming into force of the. laws relating to abandoned properties and the petitioner, a statutory corporation, had also no knowledge about the contents of the files referred to in the judgment of the Court of Settlement and is also not a party to the alleged irregularities as shown in the files and the petitioner is also a bonafide purchaser for value without notice and accordingly the petitioner deserves sympathetic and preferential treatment from the concerned authority and so in case of transfer of the above Plot No. 4, the authority concerned should give the petitioner preferable treatment and in the meantime the possession of the petitioner in the above plot No.4, through their tenant, should not also be disturbed till transfer of the same. .(9)

Cases Referred To-
48 DLR (AD) 1, Rasheda Begum Vs. Government of Bangladesh and another, 2 BLC (AD) 158; Rahima Begum and others Vs. Court of Settlement, 2 BLC (AD) 108.

Lawyers Involved:
Tufailur Rahman, Senior Advocate, instructed by S.R. Khoshnabi, Advocate-on-Record- For the petitioners (In both the cases).
Not represented- Respondents (In both the cases).

Civil Petition for Leave to Appeal Nos. 751-52 of 2004.
(From the judgment and order dated 13.3.2004 passed by the High Court Division in Writ Petition Nos.2996 and 2997 of 2001).

Judgment

Md. Tafazzul Islam J. - Both the civil petitions for leave to appeal arise out of the common judgment and order dated 13-3-2004 passed by the High Court Division discharging both the Rules obtained in Writ Petition Nos.2996 and 2997 of 2001 calling in question the common judgment and order dated 24.11.2004 passed by the First Court of Settlement in Case Nos.251 and 252 of 1995 dismissing both the cases.

2. The petitioner filed the above cases before the First Court of Settlement contending, inter alia, that the RAJUK, the respondent No.3, by allotment letter dated 12.2.1962 allotted Plot No.4 situated at Block No. SE(B), Gulshan Model Town, Dhaka, measuring 17 Khathas 13 Chattaks of land in favour of Mohammad Abdus Sattar, the respondent No.4, and then on 15.10.1963 ; RAJUK duly executed lease deed for 99 years in his favour which was duly registered on 16.10.1963; then the respondent No. 4 duly paid the premium and after getting the building plan approved constructed a two storied residential building on the eastern side of the above plot; in terms of an agreement for sale between him and the petitioner, the respondent No. 4, in the month of December 1981, handed over the vacant possession of the first floor of the aforesaid two storied residential building situated at the eastern side to the petitioner; then on obtaining necessary permission from the respondent No. 3 the respondent No.4 transferred the above Plot No.4 to the petitioner by a registered sale deed executed and registered on 30.4.1982 at a consideration of the Tk.38,00,000.00 and on 3.5.1982 also delivered vacant possession of the entire premises to the petitioner then the respondent No.3 vide Memo No.DIT/Ed/1933-1 dated 15.6.1982 mutated the name of the petitioner in the said plot; the petitioner then on getting the building plan approved constructed a new independent two storied building on the western side of the above plot which is used as the residence of the Managing Director of the petitioner; the old building situated on the eastern side of the plot is used for the residence of two General Managers of the petitioner, one in the ground floor and the other in the first floor; while the petitioner was thus in lawful possession of the above plot as well as the buildings, Notification dated 28.4.1986 containing "Ka" and "Kha" list were published and at page No.6840 of Kha list both the buildings of the above Plot No.4 belonging to the petitioner were listed as abandoned properties at serial Nos.15 and 16 and hence the cases. The First Court of Settlement, Dhaka, after hearing, dismissed the above cases. Being aggrieved the petitioner filed the above writ petition and the High Court Division, after hearing, discharged the Rules.

3. The learned Counsel for the petitioner submits that the petitioner, a statutory corporation, complied with all the necessary formalities before purchase of the above Plot No.4 and there being no laches on their part it would be unjust and inequitable if they are deprived of their lawful right, title and interest in the said plot; RAJUK having mutated the name of the respondent No.4 in the above plot and having given him the permission to transfer the above plot in favour of the petitioner and then RAJUK also having mutated the name of this petitioner, there was no scope at all for the petitioner to know that the above plot was an abandoned property; the acts and omissions of the government agencies as well as that of RAJUK led the petitioner to purchase the property treating the same as free from all encumbrances and legal defects as to the title and no apparent steps having been taken by the concerned authorities within the span of 10 years after the coining into force of the laws relating to abandoned properties, the petitioner, a statutory corporation having no knowledge about the contents of the files referred to in the judgments under consideration and being not a party to the alleged irregularities and being a bonafide purchaser for value without notice, cannot be denied of their title and interest in the above plot.

4. As it appears the Court of Settlement found that neither of the parties adduced any evidence in support of their claims but the files of the Ministry of Works, which were made available to the court, showed that notice was issued upon the occupant of the above plot to ascertain the basis of their occupation and then the respondent No.4, having claimed to be the allottee/owner of the plot, was asked to submit the original papers of title to the Ministry of Works and also to produce Income Tax payment certificate but he failed to submit those; the file of RAJUK which were made available to the Court, showed certain anomalies in the page numbering; the files of the Government, which were also made available to the court, also showed that there are 8 letters in the file from 25.9.1973 to 17.11.1975 asking the occupants of the above plot No.4 to submit original papers and in a letter dated 4 February 1975 the respondent No.4 enclosed attested copy of the lease deed, copy of the municipal tax bill and a copy of the urban property tax demand notice but none of those were the originals and particularly the lease deed was also not the original one; there was no further correspondence from 17.11.1975 to 22.5.2000; there are also some interpolations in the numbering of the pages following from page 20 in the file which raised the suspicion that some pages have been inserted and in all likelihood some pages have been removed from the file. Considering the above the Court of Settlement dismissed the cases. The High Court Division taking the above facts into consideration particularly the fact that correspondence after 17.1.11.1975 is missing and that the records having been tampered with and noticing that the signatures of the original allottee appearing in the record up to 1969 are different from those appearing since 1974 which is clearly visible in the naked eyes and some difference is also apparent when the signature of M. A. Sattar the respondent No.4, appearing in Annexure-A of the writ petitions is compared with his signature appearing in Annexure-B of the writ petition became satisfied that in the course of their official duties the concerned officers of the Ministry of Works duly issued notices to the then occupiers of the above plot No.4 and before enlisting the said plot in the 'Kha' list of the abandoned property.

5. The High Court Division in its judgment referring to the decision reported in 48 DLR (AD) 1 took the view that the duty is upon the person, who claims that the property is not abandoned, to show that at the relevant time, i.e. when President's Order 16 of 1972 came into force, the owner of the property was in Bangladesh and was in possession of the property.

6.The High Court Division, also referred to the case of Rasheda Begum Vs. Government of Bangladesh and another, reported in 2 BLC (AD) 158 where the Appellate Division held as follows:-
Thus it is clear that the Settlement Court, irrespective of the enlistment of any property either in 'Ka' and 'Kha' list contemplated in section 5 of the Ordinance, is to adjudicate whether the building is an abandoned property and same has vested in the Government as such or that the petitioners purchase of the property has not been affected by the provision of Presidents Order No.16 of 1972.
Admittedly, the property has been listed as an abandoned property. Thus onus lies upon the petitioner to rebut the presumption, provided in subs-section (2) of section 5 that the same was not an abandoned property. No oral evidence has been adduced before the Settlement Court to prove that on 22.2.1972 when President's Order No. 16 of 1972 was promulgated the original lessee, Naimuddin had been present in Bangladesh or his whereabouts were known or that he did not cease to occupy, supervise or manage in person the house in question."

7. The High Court Division also referred to the case of Rahima Begum and others Vs. Court of Settlement reported in 2 BLC (AD) 108 where the Appellate Division held as follows:-
"Once a building is included in either list of abandoned properties it is conclusive evidence that the building in questions is an abandoned property which means that the original owner was either not preset in Bangladesh or his whereabouts were not known or he ceased to manage or occupy the property in question at the time President's Order No.16 of 1972 was promulgated that is on 16.2.1972. This is a rebuttal presumption attached to the publication in the Gazette and it is for the claimant who files an application for releasing the property from the list of abandoned property to show that the original owner was present in Bangladesh or his whereabouts were known or he did not cease to occupy or manage the property in question at the time President's Order No.16 of 1972 was promulgated. If the building in question carries a presumption of being an abandoned property it is exempt from any legal process. Be it an auction sale by the Government itself or through court. The petitioners carried the onus to prove the presence or whereabouts or management of the building in question by the original non-Bengali owner when President's Order No.16 of 1972 was promulgated and this burden of proof having not been discharged by them before the Court of Settlement, no case for releasing the holding in question from the list of abandoned property has been made out and the High Court Division rightly discharged the Rule."

8. The High Court Division found that in the instant cases neither the original owner nor the original leasee were present before Court of Settlement and that the Court of Settlement, having considered all the materials placed before it, came to a positive finding that the above plot No.4 has been legally enlisted in the list of abandoned properties and that the Court of Settlement has given cogent reasons in support of its finding.

9. However the fact remains that the petitioner, a statutory corporation, complied with all the necessary formalities before purchasing of the above plot and the acts and omissions of the government agencies as well as of RAJUK, the lessor of the above plot No.4, led the petitioner to treat the above plot as free from all encumbrances and any legal defect as to the title and further RAJUK after mutating the name of the respondent No.4 the original leasee also gave him permission to transfer the above plot in favour of the petitioner and after transfer RAJUK also mutated the name of the petitioner. Further, no apparent steps were also taken by the concerned authorities in respect of the above plot within the span of 10 years after the coming into force of the. laws relating to abandoned properties and the petitioner, a statutory corporation, had also no knowledge about the contents of the files referred to in the judgment of the Court of Settlement and is also not a party to the alleged irregularities as shown in the files and the petitioner is also a bonafide purchaser for value without notice and accordingly the petitioner deserves sympathetic and preferential treatment from the concerned authority and so in case of transfer of the above Plot No. 4, the authority concerned should give the petitioner preferable treatment and in the meantime the possession of the petitioner in the above plot No.4, through their tenant, should not also be disturbed till transfer of the same.

With the above observations both the petitions are dismissed.
Ed.

Shafi A Choudhury Vs. Government of Bangladesh and others, 2016(1) LNJ 295

Case No: Writ Petition No. 9147 of 2008

Judge: Md. Ashfaqul Islam,

Court: High Court Division,,

Advocate: Mr. Rafique-ul-Huq,Mr. Muhammad Saifullah Mamun,Mr. Syed Hasan Zobair,Mr. Md. Mamunur Rashid,,

Citation: 2016(1) LNJ 295

Case Year: 2016

Appellant: Shafi A Choudhury

Respondent: Government of Bangladesh

Subject: Banking,

Delivery Date: 2014-4-3

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Md. Ashfaqul Islam, J
And
Md. Ashraful Kamal, J

Judgment on
03.04.2014

Shafi A Choudhury

. . . Petitioner

-Versus-

Government of Bangladesh and others

. . . Respondents

Banking Companies Act (XIV of 1991)
Sections 5 GaGa and 27 KaKa
Bangladesh Bank Order (PO 127 of 1972)
Article 42
The process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act, 1991 and also read with Article 42 of Bangladesh Bank Order, 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less. The petitioner herein is indeed a defaulter borrower within section 5 GaGa read with section 27 KaKa of the Bank Company Act and Article 42 of Bangladesh Bank Order 1972. . . . (18 and 19)

Belal Hossain Vs. Kazi Jane Alam and others, 13 MLR (AD) 74 ref.

Mr. Rafique-Ul- Hoque, Senior Advocate with
Mr. Muhammad Saifullah Mamun, Advocate

... For the petitioner.

Mr. Md. Mamunur Rashid, Advocate

… For the respondent No.4.

Mr. Syed Hasan Zobair, Advocate.

… For respondent No.2.

Writ Petition No. 9147 of 2008

JUDGMENT

Md. Ashfaqul Islam, J:

1. At the instance of the petitioner, Shafi A. Choudhury, this Rule Nisi was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why report of Credit Information Bureau (CIB) Bangladesh Bank classifying the petitioner as a defaulter borrower under borrower Code No.913 and serial No. 323 in respect of a Loan granted by the Respondent Pubali Bank Ltd. in favour of the Pro-forma Respondent No.5 [M/S Albert Davit (Bangladesh Ltd] should not be declared to have been made without lawful authority and is a nullity. At the time of issuing Rule an order of injunction was passed restraining the Respondent No.3 from reporting through the Credit Information Bureau showing a defaulter borrower under borrower Code No.913 and serial No. 323 in respect of a Loan granted by the Respondent Rupali Bank Ltd. in favour of the Pro-forma Respondent No.5 [M/S Albert Davit (Bangladesh Ltd] should the be declared to have been made without lawful authority and is a nullity.”

2. The fact leading to the Rule, in short, is that Respondent No.5 [M/S Albert Davit (Bangladesh Ltd] is a private limited company established on 21.10.1950. By President Order No.27 the said company was declared as an abandoned property by the government and vested upon Bangladesh Chemical Industries Corporation (BCIC). On 05.11.1971 the Eastern Mercantile Bank (presently Respondent Pubali Bank Ltd.) granted a credit facility under CC (Pledge) and CC (Hypo) for the amount of Tk.65 lac and 5 lac respectively in favour of the said company. In the year 1984 Government under its “Disinvestment Policy” decided to hand over the said Company to the private sector. Accordingly, the Government published tender notice to sell the said Company. The petitioner as a businessman, along with six other family members participated in a tender floated by the Ministry of Industries for the purchase of shares of the said Company. The said tender was awarded to the petitioner and his family members at Tk.13.77 crores. An agreement for sale was executed on 07.04.1984 between the Ministry of Industries for transfer of shares in the said Company subject to joint audit and verification of all assets including liability to the Respondent No.3 and 4 (hereinafter referred to as the Pubali Bank). The shares of the said Company were never transferred to the petitioner and his family members. As such the petitioner and his family members do not hold any shares in the said Company.

3. On 31.10.1992 the petitioner sent a letter to the Pubali Bank for holding necessary audit to determine the actual liability of the said Company. The respondent Pubali Bank, on the other hand, by several letters asked the petitioner to clear up the outstanding dues and requested the respondent – Bangladesh Bank to write off amount of Tk. 53,79,627.00 from the interest account and Tk. 39,92,742.00 from the interest suspended account.

4. The Pubali Bank vide its letter No. 7893 dated 05.09.1995 informed the company that the liability of said company stood at Tk. 1,15,03,916.25 and the same amount is payable in two year installments. This liability was determined by the management of the Pubali Bank and approved by its Board of Directors. The respondent Pubali Bank stated in its letter dated 05.09.1995 that for waiver of interest the permission of Bangladesh Bank would be required since the petitioner was a director of Pubali Bank Limited. The Pubali Bank failed to realize that the petitioner merely acted as an authorized representative/agent of the said company. He had no shares in the said company nor was a director of the same. The respondent wrongly associated the petitioner with the debts and liabilities of the said company. So the petitioner is not a defaulter.

5. Thereafter several years have gone passed but no solution could be reached between the petitioner and writ respondents for different reasons. In paragraph 35 to 37 regard have been taken on several decisions of the Appellate Division and this Division to highlight that the petitioner company is a artificial person and the loan was taken by an artificial person and in the event of default by such artificial person in repayment of the loan, such default of the company would not ipso facto render any member or director of such artificial person a defaulter. Under the said circumstances the petitioner being aggrieved by the enlistment of his name in the CIB list moved this Division and obtained the present Rule and order of injunction as aforesaid.

6. Mr. Rafique-Ul Hoque, the learned Senior Advocate appearing with Mr. Muhammad Saifullah Mamun, the learned Advocate for the petitioner after taking us with the petition and the relevant Annexures thereto mainly contends that although the petitioner has been acting as ex-officio Chairman and Managing Director of the Albert Davit (BD) Ltd. but without holding any share of the said company he cannot be held personally liable to pay dues of the Company since he did not give any personal guarantee or undertaking to pay the said liability. The shares of the said company have not yet been transferred in the name of the petitioner. The petitioner has just been acting as the designated Chairman and Managing Director of the said Company for mere management purpose and he is not the proprietor or owner of the same as mentioned above. The shares of the said Company are still lying with the Ministry of Industries. In such situation, the debts and liability of the said Company cannot legally be attributed to the petitioner and hence he is not a defaulter borrower. He further argued that the Company paid Tk.115,03,916.25 to the Pubali Bank as full and final settlement of liability of the company according to the decision taken in the 252nd and 683rd Board of Directors Meeting of Pubali Bank.

7. Mr. Hoque further submits that enlistment of the name of the petitioner in CIB report showing him as defaulter borrower cannot be sustained in that the elementary principle of Company law is that the company is a legal person and the director is not liable for any debt of the company. Therefore, the learned Senior Counsel concludes that for the aforesaid reasons the petitioner’s name appearing in the list of CIB showing him as a defaulter borrower should be declared to have been done illegally having no legal effect.

8. Mr. Md. Mamunur Rashid, the learned Advocate, on the other hand, by filing affidavit-in- opposition on behalf of respondent No.4 Pubali Bank Ltd. opposes the Rule. Mr. Syed Hasan Zobair, the learned counsel by filing affidavit-in-opposition also opposes the Rule appearing on behalf of respondent No.2-Bangladesh Bank. In supplementary affidavit filed by the respondent – Pubali Bank the other version of the case has been depicted in that admittedly the petitioner took loan over the company Albert David (Bangladesh) Ltd. from the Government along with its assets and liabilities vide agreement dated 07.04.1984. Since inception of taking over the company, it had loan liability with the respondent bank. After execution of agreement the petitioner took over the company vide Ref: No.ADL/GM/83-84 dated 07.04.1984. The petitioner after taking over the company applied to the respondent bank on 21.01.1985 for renewal and enhancement of L/C limit of the company pursuant to which loan was renewed and enhanced vide sanction letter dated 09.04.1985. Subsequently the loan was renewed and enhanced/reduced on several times. As security against the loan the petitioner executed various charge documents such as D.P. Note, Letter of continuity, Stock delivery letter, Stock ownership declaration etc. The petitioner also executed personal guarantee as security against the loan.

9. The Ref: No.ADL/GM/83-84 dated 07.04.1984, application dated 20.01.1985 for renewal and enhancement of loan, renewal of loan vide sanction letter dated 09.04.1985, charge documents and personal guarantee have been annexed to the petition and marked as Annexure- 3, 3(a), 3(b), 3(c), 3(d), 3(e), 3(f) and 3(g).

10. It has been submitted that on application of the petitioner the liabilities of the company was rescheduled vide HO/CD/5614/2001 dated 28.08.2001 which was communicated to the petitioner vide respondent bank’s letter No.PBL/HO/CD/6034/2001 dated 12.09.2001. The petitioner having accepted the reschedulement submitted a cheque for Tk.1,03,53,524.62. Regarding the cheque respondent bank wrote a letter to the petitioner on 27.08.2001 informing him that his cheque would have been accepted by the bank had he given an undertaking in writing that the cheque amount was for down payment against its total liabilities of Tk. 4,69,54,072.62 as on 31.03.2001. Thereafter the petitioner confirmed that cheque for Tk.1,03,53,524.62 was made as down payment of liabilities of Albert David (Bangladesh) Ltd.

11. The learned counsel further submits that existence of the company could not be imagined of without the petitioner. The petitioner was all in all of the Albert Davit (Bangladesh) Ltd. He took over the company being a successful bidder along with its assets and liabilities. After taking over the company its loan was renewed, enhanced and rescheduled on his application. He deposited the down payment after reschedulement. All the loan amount used to be drawn by cheque under his own signature. So he is wholly & solely responsible for the defaulted loan liabilities of the company. In law a company is an artificial juristic person. If it is so, then Albert Davit (Bangladesh) Ltd. may be considered as a body of which the petitioner Mr. Shafi A. Choudhury is its heart/soul. The respondent bank filed Artha Rin Suit No.45/2003 in the Artha Rin Court, No.3, Dhaka against the company Albert Davit (Bangladesh) Ltd. impleading the petitioner as its sole responsible person. The suit has been decreed on 25.04.2012 against the petitioner. As such it has been established by the Court’s verdict that the petitioner is the only person wholly and solely responsible for repayment of liabilities of the company.

12. Therefore, on the basis of above submissions the learned counsel for the respondent–Pubali Bank as well as Bangladesh Bank by summing up their arguments unequivocally submit that according to Article 43 and 44 of Chapter IV of the Bangladesh Bank Order 1972, Bangladesh Bank is empowered to collect credit information from banks and financial institutions. On the basis of the credit information provided by the concerned Bank or financial Institution, Bangladesh Bank prepares the CIB report of the concerned persons and organizations in good faith in order to discharge its statutory obligations. However, exact information supplied by the Banks/Financial Institutions is contained in the CIB database without any amendment or alternation in terms of the statute. In the instant petition, the issue whether the writ petitioner was a defaulter or not, whether he was guarantor or not, whether he was a director or not can be determined only through evaluation of the facts and circumstances of the case which is best known to the lender Bank who is the relevant party in the petition. As per the statute Bangladesh Bank is empowered to discharge its duty which they did in the present case and there is no illegality in that respect on the part of Bangladesh Bank and as such the instant Rule is liable to be discharged so far as it relates to the Bangladesh Bank.

13. We have heard the learned counsel of both sides and considered their submissions carefully. We have gone through the entire Annexures of the petition and affidavit-in-oppositions filed by the respondents with precision. At the outset we want to refer to the agreement for sale entered into between the Government of Bangladesh the 1st party and M/S. Albert Davit (Bangladesh) Ltd. as the 2nd party. In the said agreement the petitioner Shafi A. Choudhury put his signature on behalf of the 2^nd party i.e. the Company. Let us refer to a pertinent portion of the said agreement dated 07.04.1984, which is as under:

“NOW, THEREFORE, this indenture witnesseth as follows : - 1. THE FIRST PARTY agrees to sell and the shareholders and the highest bidder of the SECOND PARTY agree to purchase of the demised enterprise on “AS IS Where Is Basis” on the 7th April, 1984 on the terms and conditions set out in the following paragraph.”

14. Admittedly the petitioner himself on behalf of the company has taken loan from respondent– Pubali Bank by executing all the charge documents of the bank. The petitioner does not also dispute the fact of taking loan and other issues which are long standing unsettled matters mainly related to the payment of loan taken by him of course on behalf of the company. There is no denying that the elementary principle of company law is that the company is a legal entity distinct from of its members. We distinctly observe that though the Company Law governs its field with all the trappings of its own but at the same time the Banking Companies Act is also an independent Special law that rules with authority altogether the different aspect related with the banking matter and stands absolutely on a different footing. By inducting the above elementary principle of company law the cause of action which has arisen under the Banking law cannot be given a go by. This sort of exercise should not be approved in any manner being beyond the scope of jurisprudence. Therefore, we hold that the inference since the petitioner is the Chairman and Managing Director of the Company which is an artificial person and for that reason he is absolved from the clutches of taking loan from the respondent-bank has no backup of law and no legs to stand.

15. Banking Companies Act has an epitome of its own. When the provisions of the banking Companies Act will be in derogation to other provisions of other laws, then the provisions specifically provided in the Act shall have to be followed only. In the case of Belal Hossain –Vs- Kazi Jane Alam and others, 13 MLR (AD) 74 our Appellate Division have held that section 2 of the Act, 1991 provides that provision of said Act shall not affect the provisions of any other law for the time being in force and also not in addition to the provision of any other existing law. (All underlings are mine)

16. Under the backdrop of the discussion as made above let us now go through the laws in the amended Bank Companies Act 1991 since it is the next approach to appreciate the cardinal issue before us. Firstly let us glean the law that governs the method of enlistment of the names of the defaulter persons and also স্বার্থ সংশিষ্টস্ন প্রতিষ্ঠান in the CIB list. Law is very much clear and unambiguous. An elaboration and expansion of the law has been perfected by the amendment in the year 2013 (By Act No.27). The life line of the law in the context of the case in hand is section 5 GaGa which has categorized a defaulter borrower or so to say has given the definition of defaulter borrower. Amended section 5 GaGa runs as follows:-

৫(গগ) খেলাপী ঋণ গ্রহীতা অর্থ কোন দে নাদার ব্যক্তি বা প্রতিষ্ঠান যাহার নিজের বা স্বার্থ সংশিষ্টস্ন প্রতিষ্ঠানের অনুকুলে প্রদত্ত অগ্রীম ঋণ, বা উহার অংশ বা উহার উপর অর্জিত সুদ বাংলাদে শ ব্যাংক কর্তৃক জারীকৃত সংজ্ঞা অনুযায়ী মেয়াদোত্তীর্ণ হও য়ার ৬ (ছয়) মাস অতিবাহিত হইয়াছে :
তবে শর্ত থাবে যে, খেলাপী গ্রহীতা কোন পাবলি ক লি মিটেড কোমপানীর পরি চাল ক না হইলে অথবা উক্ত কোম্পানীতে তাহার বা উহার শেয়ারে র অংশ ২৫% এর অধিক না হইলে , উক্ত পাবলি ক লি মিটেড কোম্পানী স্বার্থ সংশিষ্টস্ন প্রতিষ্ঠান বলি য়া গণ্য হইবে না ।

17. The legislature in the said amended law inserted the word “দেনাদার” and cleared the ambiguity whatsoever or at all in respect of definition and scope of defaulter borrower. Further in section 5 (Chha) of the Banking Companies Act definition of “দেনাদার‘‘ has been given in the following manner : -
৫(ছ) দেনাদার অর্থ লাভ ক্ষতির ভাগাভাগি, খরিদ বা ইজারার ভিত্তিতে বা অন্য কোন ভাবে আর্থিক সুযোগ সুবিধা গ্রহণকারী ব্যক্তি কোম্পানী বা প্রতিষ্ঠান এবং কোন জামিনদার ও ইহার অমত্মর্ভূক্ত হইবে।

Section 27 KaKa stands as it is:

২৭কক। খেলাপী ঋণ গ্রহীতার তালি কা- ইত্যাদি । (১) প্রত্যেক ব্যাংক কোম্পানী বা আর্থিক প্রতিষ্ঠান , সময় সময়, উহার খেলাপী ঋণ গ্রহীতার তালিকা বাংলাদেশ ব্যাংকে প্রেরণ করিবে।
(২) উপ-ধারা (১) এর অধীন প্রাপ্ত তালি কাবাংলাদেশ ব্যাংক দেশের সকল ব্যাংক কোম্পানী ও আর্থিক প্রতিষ্ঠানে প্রেরণ করিবে।
(৩) কোন খেলাপী ঋণ গ্রহীতার অনকুলে কোন ব্যাংক কোম্পানী বা আথির্ক প্রতিষ্ঠান কোনরূপ ঋণ সুবিধা প্রাদান করিবে না।
(৪) আপাতত: বলবৎ অন্য কোন আইনে যাহা কিছুই থাকুক না কেন খেলাপী ঋণ গ্রহীতার বিরম্নদ্ধে ঋণ প্রদানকারী ব্যাংক কোম্পানী বা ক্ষে ত্র মত আর্থিক প্রতিষ্ঠান প্রচলি ত আইন অনুসারে মামলা দায়ের করিবে।

18. If we evaluate all these the laws having bearing on the issue together with the factual aspect of the case it becomes clear that the agreement that was executed in the year 1984 clearly speaks that the petitioner bought the incumbent company (“AS IS Where Is Basis”) assuming all the liabilities of the same. Further we have already stated that there is no dispute that the petitioner in his individual capacity obtained the loan from the respondent-Pubali Bank after furnishing charge documents and complying with the other boundened formalities. And Banking Companies Act has pinpointed the situation that leads to enlistment of the name of any defaulter borrower (†`bv`vi) in the CIB list. In many a decision the Appellate Division and this Division finally set at rest that the process of enlistment of any defaulter name in the CIB list is a continuing process within the meaning of section 5 GaGa read with section 27 KaKa of Banking Companies Act 1991 and also read with Article 42 of Bangladesh Bank Order 1972. If all these provisions are read together one and only inference that could be made is that if any person or a company is indebted to in any manner with any financial institution and the debt remains unpaid, it is the duty of the respondent Bangladesh Bank in its turn to enlist the name of the incumbent in the CIB list nothing more nothing less. With the amendment of section 5 GaGa the definition as it could be found now contains a wider version of the category of persons to be included as defaulter borrower.

19. That being the situation we hold that the main argument of Mr. Rafique-Ul Hoque is a fallacious one under the facts and circumstances of the present case. By bringing the elementary principle of company law as it has been stated the settled provision of Banking Companies Act cannot be given a go by. The petitioner herein is indeed a defaulter borrower within section 5 GaGa read with section 27 KaKa of the Bank Company Act and Article 42 of Bangladesh Bank Order 1972.

20. On the conspectus, the irresistible result that follows that this Rule should be discharged with cost.

21. In the result, the Rule is discharged with cost. The order of stay granted earlier by this Court is hereby recalled and vacated.

22. Communicate this order at once..

Ed.

Shafiq Rehman Vs. Mohammad Hasanul Alam and another, 2 LNJ (2013) 229

Case No: Criminal Revision No. 306 of 1994

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: M Amirul Islam,Mr. Sheikh Rafiqul Islam,Mr. Md. Ensan Uddin Shaikh,,

Citation: 2 LNJ (2013) 229

Case Year: 2013

Appellant: Shafiq Rehman

Respondent: Mohammad Hasanul Alam and another

Delivery Date: 2012-08-23

HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J.
And
Ashish Ranjan Das, J.

Judgment
23.08.2012

Shafiq Rehman, Editor, “Jai Jai Din”

. . . Accused-petitioner.

-Versus-

Mohammad Hasanul Alam and another

...Opposite Parties.

Code of Criminal Procedure (V of 1898)
Sections 499 and 501
It transpires that the complainant has alleged that the subject-matter of the publication has hurt his religious feelings and he became shocked as the letter Alif is one of the letters used in the Holy Quran, and that part of the writing is obscene. The word used in the subject-matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever. Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings.

Hence, the continuation of the proceedings adopted and constituted against the petitioner in the aforesaid case is abuses of the process of the Court which is liable to be quashed.…(9, 13 and 14).

Mr. M. Amir-Ul-Islam, Senior Advcoate with
Mr. Sheik Rafiqul Islam, Advocate,

. . . For the petitioner

No one appears,

....... For the opposite party No. 1.

Mr. Md. Ensan Uddin Shaikh, A. A. G. with
Mr. Mian Md. Shamim Ahsan A. A. G.

....... For the opposite party No. 2.

Criminal Revision No. 306 of 1994

JUDGMENT

Syed Md. Ziaul Karimi, J:

By this Rule, the petitioner sought for quashing of the proceedings constituted in C.R. case no. 498 of 1993 under Sections 500, 501, 502 of the Penal Code pending in the Court of Magistrate, first Class, Court no.1, Rangpur.

The prosecution case put in a nutshell are that the opposite party No. 1 as complainant filed a petition of complaint in the Court of Magistrate, First Class, Rangpur against the accused petitioner alleging interalia that he is a regular reader of the weekly named “ Jai Jai Din” and while reading the 31^st issue of the fourth year of its publication he came across a column which is written by the petitioner as part of his regular column in the said weekly under the title “Diner Per Din“ and the end of the said column it was written:

“শেখ করিমের বিলাস বহুল এপার্টমেন্টে মিলনর প্রাককাল সিনথিয়া হতবাক হয়ে গেল। শেখ করিমের উত্থিত অঙ্গের দৈর্ঘ দেখে সিনথিয়া বিস্ময় ও প্রশংসায় মেশানো অস্ফুট স্বরে বললা, ওয়াও (WOW)!

ইট ইজ নট ওয়াও। ইট ইজ আলিফ। গর্বিত শেখ করিম বললেন।”

By reading the same the complainant herein opposite party no.1 became shocked and it has hurt his religious feelings on the ground that the letter Alif is one of the letters used in Holy Quran and that part of the writing is obscene. Thereby the petitioner the Editor of that Weekly “Jai Jai Din” committed the offence prescribed in Sections 501, 502 of the Penal Code.

On receipt of the complaint the learned Magistrate took cognizance of the offence under the aforesaid sections. Thereafter the petitioner surrendered in the Court below and enlarged on bail.

Feeling aggrieved by the aforesaid proceedings the petitioner preferred the instant application and obtained the present Rule.

The learned Advocate appearing for the petitioner supports the Rule and submits that the written word in question being subject-matter of complaint in the impugned proceedings does not disclose any offence inasmuch as those words do not by any stretch of imagination demeanour the opposite party nor they are capable of imputation of any meaning or sense purporting nor those words are written with any intent thereof. He adds that the petitioner never had any intention of hurting any feeling of anybody or person, religious or otherwise or to defame in any manner whatsoever. Those words which are objected to merely contain a reference a letter only in capable of any innuendo as has been imputed to and that the petitioner never in his wildest thought that it could ever be linked with any religious feeling. It was merely part of a joke and an imaginary story as often the jokes are so made and this is a common joke used as adult joke in many Arabs Countries. He adds that the petitioner was never aware that this was capable of hurting the feeling of any individual religion or otherwise. He adds that in taking objection to the joke on the ground as he did unreasonable as because there is no nexus between the joke and religion or the Holy Quran. Yet the petitioner having shown respect even for such unreasonable and irrational emotion as he referred to a letter in the Holy Quran, the petitioner soon published a clarification in the 34^th issue in a prominent manner further explaining that the story as was written in 31^st Issue was merely a joke and it has no innuendo whatsoever of religion and even though it was not capable of any such innuendo as alleged the petitioner’s expressed his profound and sincere regret for the same. He adds that the written words in question having not disclosed any offence, the compl-aint is unjustifiable, unreasonable and has tendency to harass the petitioner and it further has the tendency of infringing the right to free expression. He adds that it is not the petitioner who has created any innuendo or maligned anybody or person, but it is the opposite party who is putting a false innuendo and thereby maligning the petitioner with a charge which is false and most heinous and tends to address to some kind of blind irrational emotion for nothing and with any justifiable basis. He lastly submits that the continuation of the proceedings not only causes unnecessary and illegal harassment to the petitioner but also tends to create and increase false tention and emotion against the petitioner which the petitioner does not deserve.

The learned Assistant Attorney General appearing for the opposite party no. 2 opposes the Rule and submits that the allegations as made in the complaint will come within the mischief of section 501 of the Penal Code so the Court below rightly took cognizance of the offence which calls for no interference by this Court.

In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

On going to the materials on record it transpires that the complainant Mohammad Hasanul Alam alleged that the subject-matter of the publication has hurt his religious feelings and he became shocked as the letter Alif is one of the letters used in the Holy Quran, and that part of the writing is obscene.

We have carefully examined the allegations made in the petition of complaint.

For the convenience of understanding Sections 499 and 501 read as hereunder:

499- Defamation-Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the case hereinafter excepted, to defame that person.”

501- Printing or engraving matter known to be defamatory- Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

It is pertinent to point out that after publishing the same the publisher herein petitioner published a re-joinder in the following manner:

“বর্ষ ৪ সংখ্যা ৩৪ মঙ্গলবার ৩০ নভম্বর, ১৯৯৩ দামঃ পাঁচ টাকা
“যায় যায় দিন”
যায় যায় দিন এর ৯ নভেম্বর সংখ্যার দিনর পর দিন কলামের শেষে গল্পটি নিছক কৌতুহল হিসাবেই ছাপা হয়েছে। আরবি ভাষায় কেবলমাত্র মুসলমানরাই কথা বলন না - অন্য ধর্মাবলম্বীদর মধ্যও আরবি ভাষাভাষী লোকজন রয়েছেন। তাছাড়া ওই রচনাটির কোন অংশই কোনা ধর্ম সম্পর্কে কোনা ধরনর ইঙ্গিত করা হয়নি। তারপরও যদি ওই গল্পটি কারা অনুভূতিতে আঘাত দিয়ে থাকে তাহল সে জন্য আমরা আন্তরিকভাব দুঃখিত। কাউকে কোন ভাব দুঃখ দেয়াই ওই কৌতুকের উদ্দেশ্য নয়।

On plain reading of the Provisions of section 499 of the Penal Code, we find that whoever makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said to defame that person. The explanation 4 provides that no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person, in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. Moreso, in view of third exception of the above Provision, subject-matter of printing is not defamation inasmuchas the opinion or joke was expressed in good faith not to harm the reputation of any person. Therefore we hold that the word used in the subject-matter of defamation is not a matter to hurt the religious feeling of the complainant in any manner whatsoever.

Moreso, in the re-joinder the petitioner expressed his sincere regret for publishing the same stating that it has done in good faith, and he had no intention to hurt anyone of his religious feelings. Therefore we hold that the continuation of the proceedings adopted and constituted against the petitioner in the aforesaid case is abuses of the process of the Court which is liable to be quashed. Thus the Rule having merit succeeds.

In view of the foregoing narrative the Rule is made absolute. The proceedings of C.R. case no. 498 of 1993 pending in the Court of Magistrate, first Class, Rangpur is hereby quashed.

Office is directed to communicate the order at once.

Ed.

Shafiqul Islam @ Shafi Vs. The State

Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 353 OF 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,,

Appellant: Shafiqul Islam @ Shafi

Respondent: The State

Subject: Criminal breach of trust,Gift,Customs,

Delivery Date: 2014-06-16

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

Madam Justice Nazmun Ara Sultana

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali

(From the judgement and order dated 28th of Mach, 2011 passed by the High Court Division in Death Reference No. 53 of 2006 with Criminal Appeal No. 2533 of 2006 and Jail Appeal No. 553 of 2006)

J U D G E M E N T

MUHAMMAD IMMAN ALI, J:-

Reference was made under section 374 of the Code of Criminal Procedure which was registered as Death Reference No. 53 of 2006. The petitioner also filed Criminal Appeal No. 2533 of 2006 and Jail Appeal No. 553 of 2006. By the impugned judgement and order, a Division Bench of the High Court Division rejected the death reference and dismissed the criminal appeal and commuted the sentence of death to one of imprisonment for life.

Being aggrieved by and dissatisfied with the impugned judgement and order, the accused petitioner filed the instant criminal petition for leave to appeal before this Division.

Mr. Yousuf Hossain Humayun, learned Senior Advocate appearing on behalf of the petitioner submitted that there has been inordinate delay of more than 12 hours in lodging the F.I.R. and there is no satisfactory explanation for such delay which belies the whole prosecution case and creates a serious doubt and as such the petitioner is entitled to get benefit of doubt, that was not considered by the Hon’ble High Court Division. The learned Advocate further submitted that there was no motive for the accused petitioner to kill his wife. It is admitted in the F.I.R. that the accused petitioner was happy with his wife as her father stated in the FIR that "" ¢hh¡ql fl a¡q¡cl c¡ÇfaÉ S£he p¤M n¡¢¿¹a L¡¢Va¢Rmz'' Both the trial court and High Court Division failed to assess this very vital aspect of the case. As such the impugned judgement and order may be set aside by this Division for the ends of justice. He further submitted that both the Courts below erred in law in not considering that there is no eye witness in the case and the circumstantial evidence has got no strong basis for creating credibility of the allegation brought against the convict appellant for killing his wife, and in the absence of any eye witness and circumstantial evidence the impugned judgement and order of conviction and sentence is not tenable in law and is liable to be set aside. He also submitted that the prosecution hopelessly failed to prove the fact that the deceased, i.e. the wife of the accused appellant was in the exclusive custody of the convict petitioner, and hence the case does not fall in the category of the general principle of a wife killing case, and both the trial Court and High Court Division failed to assess this very vital aspect of the case and convicted the accused petitioner. The learned Advocate lastly submitted that the case has not been proved by any independent witness. All the witnesses are partisan and tutored by the prosecution as such the impugned judgement and order of conviction and sentence may be set aside for the ends of justice.

Mr. Biswajit Deb Nath, learned Deputy Attorney General appearing of behalf of the respondent made submission in support of the impugned judgement.

<span style="We have considered the submissions of the learned Advocate for the petitioner and the learned D.A.G. appearing for the State and perused the impugned judgement and other connected papers on record.

The sum and substance of the submissions made by the learned Advocate for the petitioner is that there was no eyewitness to the occurrence and there was no strong circumstantial evidence to prove the complicity of the accused petitioner in the murder of his wife. In this regard we have to say that not all crimes are committed in broad daylight and that many crimes are committed in the darkness of night, as in this case. It is also an established principle that conviction of an accused can be based on circumstantial evidence alone.

In the facts of the instant case there is clear evidence that the victim was in the house of her father along with her sister to celebrate Eid. Thereafter, the victim was taken by her husband from the house of her father and on the way the couple visited the victim’s sister’s house. According to the witnesses the victim was last seen with her husband when she was on her way to his house. On the following day the victim was found dead on the bank of the canal. Under the provisions of section 106 of the Evidence Act the husband has a special duty to explain what happened to his wife in the space of time when he was last seen with her and the time when her dead body was discovered since the victim was in his custody. It is the husband who is deemed to have special knowledge about the whereabouts of his wife and what happened to her in that interim period. The burden of proof is squarely on the husband to prove how his wife met her death.

In an attempt to discredit the evidence of P.W.9 Shahana Khatoon with regard to her last seeing the victim in the company of the accused, the defence cross-examined her to the effect that she did not tell the investigating officer that the victim visited her house on her way back from her father’s house. Such cross-examination would benefit the defence only if it could be shown from the cross-examination of the investigating officer that this witness did not say so at the earliest point in time when giving her evidence to the investigating officer. Hence, the evidence of P.W.9 that the victim and her husband were last seen together at her house stands.

The evidence of P.W. 2, mother of the victim, indicates that when she went to the house of the accused there was no one present and that there was blood on the bed and on the floor in the victim’s room. This witness also deposed to have seen the victim’s hair and broken bangle by the window. She denied the defence suggestion that she did not tell the investigating officer about the blood on the bed and on the floor and the broken bangle. Again, this cross-examination would benefit the defence only if it could be shown from the cross-examination of the investigating officer that the witness in fact did not tell the investigating officer what she is now deposing in court. From the evidence of the two investigating officers who were examined in the case, we do not find the contradiction taken from them.

Finally, the fact that the accused was not found in his house after the occurrence and did not surrender until about 11 months later is another circumstance which was held against the accused. There is a plethora of decisions of our Supreme Court that abscondence of the accused is a material circumstance indicating his guilt.

The High Court division has elaborately discussed the evidence and materials on record and affirmed the conviction under section 302 of the Penal Code, but commuted the sentence of death to one of imprisonment for life. We find no reason to interfere with the impugned judgement and accordingly the criminal petition for leave to appeal is dismissed.

Shafiqul Islam Vs. Government of Bangladesh and another

Case No: Civil Petition for Leave to Appeal No. 1097 of 2002

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Fazlul Karim,,

Citation: 57DLR (AD) 37

Case Year: 2005

Appellant: Shafiqul Islam

Respondent: Government of Bangladesh and another

Subject: Administrative Law,

Delivery Date: 2003-8-23

Shafiqul Islam

Vs.

Government of Bangladesh and another,2005.

57DLR (AD) 37

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
A S Ahammad J
MM Ruhul Amin J

Shafiqul Islam………Petitioner

Vs.

Government of Bangladesh and another……. Respondents

Judgment
August 23, 2003.

The Bangladesh Service Rules
Rule 72(a)
There was no trial of the petitioner for allegation of the offence under section 161 of the Penal Code, 1860 read with section 5 (2) of the Act XI of 1947. The trial was stopped under section 339 (c) (4) of the Code of Criminal Procedure and the petitioner was released as the trial could not be concluded within specified time. So, he is not entitled to all arrear benefits.

Lawyers involved:
Fazlul Karim, Senior Advocate instructed by M Khaled Ahmed, Advocate‑on‑Record‑ For the Petitioner
Not represented‑ Respondents.

Civil Petition for Leave to Appeal No. 1097 of 2002.
(From the judgment and order dated 29‑4‑2002 passed by the Administrative Appellate Tribunal in Administrative Appellate Tribunal Appeal No. 186 of 1999).

Judgment:
                 MM Ruhul Amin J.- This petition for leave to appeal is directed against the judgment and order dated 29‑4‑2002 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Tribunal Appeal No. 185 of 1999 dismissing the appeal and affirming the judgment and order dated 6‑9‑1999 passed by the Administrative Tribunal, Dhaka in Administrative Tribunal Case No. 120 of 1994.

2. The case of the petitioner, in brief, is that he joined in the service of the then Government of Pakistan in 1967. Subsequently, he was transferred to Dhaka. The petitioner used to pass different type sof bills of the Army personnel. One Harun‑orRashid, ex‑Army man, filed a criminal case in the Cantonment PS on 13‑11‑1983 against the petitioner out of grudge and he was arrested by the police and was placed under suspension on 7‑12‑1983 with effect from 27‑10‑1983. The case was ultimately brought before the Special Judge. Dhaka Division for holding trial for allegations of offence under section 161 of the Penal Code read with section 5(2) of Act II of 1947. As the prosecution failed to produce any witness within the specified period of time the criminal proceeding was stopped under section 339(C) (4) of the Code of Criminal Procedure and the petitioner was released. He filed an application for reinstatement in the service with all benefits. The petitioner was allowed to join in the service but he was not given benefit of the period of suspension. The petitioner preferred appeal before the opposite party No.1
who allowed 75% of the petitioner's salary during the period of suspension and considered period of suspension countable for pension vide order dated 8‑11‑1993.

3. Being aggrieved the petitioner instituted Administrative Tribunal case No. 120/94 before the Administrative Tribunal, Dhaka which was dismissed on 6‑9‑99.

4. The petitioner then filed Administrative Appellate Tribunal Appeal No. 186 of 1999 before the Administrative Appellate Tribunal but the appeal was also dismissed.

5. We have heard Mr Fazlul Karim, the learned Senior Counsel for the petitioner. He submits that under Rule 72 (a) of the Bangladesh Service Rules when a person is acquitted honorably in a criminal proceeding he is entitled to get all financial benefits during the period of suspension but the petitioner was allowed only 75 % benefit.

6. It is undisputed that in the criminal case, being Special Case No. 51 of 1984 of the Court of Special Judge, Dhaka Division, there was no trial of the petitioner and, as such, he was not acquitted in the case. The proceeding of the case was rather stopped and the petitioner was released, as trial could not be concluded within the specified period provided by law.

In the circumstances we find no substance in the petition. The petition is accordingly, dismissed.

Ed.

Shafiqul Islam and others Vs. The State, (Nozrul Islam Chowdhury, J.)

Case No: Criminal Appeal No. 2747 of 2004

Court: High Court Division,

Advocate: Mr. Md. Khurshid Alam Khan, Advocate. ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Shafiqul Islam and others

Respondent: The State

Subject: Nari-o-Shishu Nirjatan Daman Ain

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(criminal appellate jurisdiction)

Nozrul Islam Chowdhury, J

And

Md. Ataur Rahman Khan, J.

Judgment on

19.02.2008

}

Shafiqul Islam and others

. . .Accused-Appellants

-Versus-

The State

. . .Respondent

Nari-o-Shishu Nirjatan Daman Ain, 2000 (Act VIII of 2000)

Sections 7 and 30

The appellants who are appellant Nos. 2 and 3, during pendency of the appeal before this Court, they were enlarged on bail vide order dated 02.04.2006 of course for a limited period of 6 (six) months, consequently they were released from the jail. It was of course, incumbent upon the learned Counsel for the appellants to get the said order of bail extended from time to time, this was not done by the learned Counsel, may be a fault on the part of the learned Counsel. Now the question arises as to whether such a default on the part of learned counsel, can be attributed to the appellants without any notice upon them to that effect, with a view to bring them within the mischief of the term “fugitive from law” ? more particularly when we have already noticed that they have sufficiently complied with the command of the court by remaining inside the jail while filing this appeal. Therefore, we find it profitable to quote from the judgment of the Appellate Division, as we have already referred to above and reported in 40 DLR (AD) 281. “It would be less than chartable” to attribute to the appellants that they were ‘fugitive from Law”. Under these circumstances as stated above, and the position of law discussed, we find that we can safely dispose of the appeal by the appellant Nos. 2 and 3 as well as on merit and in doing so we can proceed accordingly. In the result this appeal is dismissed in respect of appellant No. 1 while the same is allowed in respect of appellant Nos. 2 and 3. . . .(48, 49 and 50)

Siraj Mal and others Vs. The State of Himachal Pardesh, AIR 1981(SC) 361; Bhagwat Prakash Vs. The State of Allahabad, AIR 1956 (All) 22; Bharwada Bhogiubhai Hirjibhai Vs. The State of Gujrat, AIR 1983 (SC) 753; Rameshwar Vs. State of Rajasthan, (1952 3 SCR 377; AIR 1952 SC 54; Saidur Rahman alias Chan Miah and others Vs. The State, 40 DLR (AD) 281; Awal Khan and another Vs. The State, PLD 1957 (WP) (Pesh) 75 and Parasuram Patel and another Vs. State of Orissa, (1994) 4 SCC 664 ref.

Mr. Md. Khurshid Alam Khan, Advocate.

. . . For the Appellants

Ms. Sarker Tahmeena Begum with

Mr. Md. Abdul Khaleque, A.A.Gs,

. . . For the State

JUDGMENT

Nozrul Islam Chowdhury, J. This appeal brought by three convicts challenging the judgment and order of their conviction and sentence dated June 13, 2004 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur in Nari-O-Shishu Nirjatan Tribunal Case No. 115/2001, convicting appellant No. 1, Shafiqul Islam under sections 7 and 9(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000 sentencing him thereunder to suffer imprisonment for life on each count and a fine of Taka 20,000/- in default to suffer R.I. for one year more with a direction to run both the sentences concurrently. While appellant Nos. 2 and 3 Sekandar Ali and Billal have been convicted under section 7 read with section 30 of the said Ain, sentencing each of them thereunder to suffer rigorous imprisonment for 14 (fourteen) years with fine of Tk. 10,000/- (ten thousand) in default to suffer rigorous imprisonment for 6(six) months more.

2. Factum matrix involved in the case, in short, is that one Sabina Yesmin @ Putul, a daughter of Abdul Jabbar aged about 13 years and a student of class VIII reading in a local school had been sleeping with her cousin sister Parvin at her father’s house in a separate room on the night following 20.5.2001. At about 12 mid night Putul went out of the house with said Parvin (younger to Patul) to attend the call of nature and while both of them had been returning back to their school and on returning back. Therefore Shafiqul was warned for such teasing which enraged him and on the night following 20.05.2001 at about 12 mid night when Putul went out of her hut with her cousin Parvain (younger to Patul) to attend the call of nature and when she was returning back to her hut along with her cousin Parvin at that stage Shafiqul with the help of 7 others forcibly kidnapped Putul and had taken her to an unknown destination. Hearing now raised by Putul and Parvin other witnesses came around the scene, some of whom had seen the miscreants lifting away Putul. Thereafter a G.D. Entry was made with Jhenaigati Police Station. But the Police failed to trace her out. The complaint also disclosed that the attempt for compromise had also failed and G.D Entry lodged by him earlier does not disclose the correct picture as narrated by him before the police.

3. Upon receipt of the petition of complaint the learned Tribunal sent the same to the Officer-in-charge of Jhenaigati police Station to proceed with the same in accordance with law upon ascertainment of the age of the victim Putul. Thereafter on the basis thereof Jhenaighati P.S. Case No. 2 dated 26.6.2001 was registered under section 7/30 of Nari-O-Shishu Nirjatan Daman Ain, 2000.

4. Police after investigation submitted charge sheet against Shafiqul Islam alone under sections 7/9(1) of the said Ain of 2000 while final report in favour of other two appellants namely appellant No. 2 and 3 in G.R. Case No. 364 of 2001.

5. Upon receipt of the said police report the learned Tribunal, however, took cognizance of the offence issuing process against all the three appellants of whom appellant Nos. 2 and 3 were eventually charged under section 7/30 of the said Ain of 2000 and appellant No. 1 was charged under sections 7/9(1) of the said Ain.

6. The charges were read over to the appellants to which they pleaded not guilty and claimed to be tried.

7. Upon framing of the charges as aforesaid, the prosecution examined 12 witnesses in support of their case while the defence adduced none.

8. The defence is a plea of innocence and further defence is that Putul being the daughter of Abdal Jabbar at whose house Shafiqul used to serve as a domestic help and she being and adult, fell in love with Shafiqul. Therefore she left her parents house on her own and got herself married with Shafiqul. But subsequently she having been influenced by her parents, changed her position. As such there was neither any offence of kidnapping nor of rape.

9. Mr. Kh. Md. Khurshid Alam, learned Advocate appearing for the appellants submits that in the instant case the prosecution miserably failed to bring home the charge against the appellants both under section 7 and 9 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, beyond reasonable doubt as such the conviction and sentence against the appellants under the aforesaid provisions of law are not sustainable as such the impugned judgment is liable to be set aside.

10. The learned Advocate for the appellants submits further that from a plain reading of the impugned judgment it is evident that the Tribunal itself upon consideration of the evidence on record, had found it possible on the part of the victim Patul to be a consenting party both in the offence of rape and kidnapping. Yet in view of his misconception with respect to the requirements of law at the relevant time, for the purpose of an offence of rape, the Tribunal committed illegality in awarding sentence upon the appellant No. 1 under section 9(1) of the said Ain as also under section 7 read with section 30 of the said Ain.

11. Elaborating his submission the learned Advocate for the appellants has pointed out further that the occurrence in the instant case took place on 20.5.2001 and that sub-section 1 of Section 9 of the said Ain was amended vide Act No. XXX of 2003 replacing the expression Ò14 erm‡iiÓ by expression Ò16 erm‡iiÓ. He has also pointed out that at the relevant time, an offence under section 9(1) the law requires the age of the victim girl to be of 14 (fourteen) years only and not of 16 (sixteen) years. Though it has been so amended in the year 2003 and the accused persons has to be tried to the offence as was available at the time of commission of offence and not by the law as amended subsequently.

12. The learned Advocate for the appellant has also pointed out that out of three appellants, appellant Nos. 2 and 3 ought to have been acquitted by the learned Tribunal in view of conspicuous absence of any legal evidence to prove the charges against them and a contrary view is not sustainable both under the facts as well as law. Elaborating his submission the learned Advocate has pointed out that immediately after recovery of the victim girl she made a statement before the Magistrate which was duly recorded under Section 22 of the Ain, wherefrom it transpires that the victim did not disclose a single implicating the appellant Nos. 2 and 3.

13. Pointing out the deposition of P.W. 12 the learned Advocate for the appellants submits further that the complicity of Appellant Nos. 2 and 3 as disclosed by P.Ws. 3,4,5,6 and 9 suffers from material contradictions.

14. Mr. Md. Abdul Khaleque, learned Assistant Attorney General appearing on behalf of the State submits that in the instant case the appellant No. 1 has been found guilty both under Sections 9(1) and 7 of the Nari-O-Shishu Nirjatan Daman Ain, 2000, and for the offence under Section 9(1) the evidence of P.W. 2 the victim herself is sufficient to warrant such conviction even without any corroboration thereof. In support of his contention the learned Assistant Attorney General has relied on the case of Siraj Mal and others –Vs- The State reported in 45 DLR 688, the case of Harpal Singh and another –Vs- The State of Himachal Pardesh reported in AIR 1981 (SC) 361, Bhagwat Prakash –Vs- The State of Allahabad reported in AIR 1956 (All) 22 and the case of Bharwada Bhogiubhai Hirijibhai -Vs- The State of Gujrat reported in AIR 1983 (SC) 753 with special emphasis on paragraphs 7 and 9 thereof. The learned Asstt. Attorney General submits further that for the offence under section 7 of the said Ain the deposition of P.Ws. 2,3,4,5 and 6 are sufficient to bring home the charge against all the appellants. Therefore, the impugned judgment and order of conviction and sentence does not call for any interference by this Court.

15. In view of the submissions made by the learned Advocate from both sides and in view of the deposition of the witnesses available on record it appears to us that in the instant case so far the offence of rape is concerned, the victim girl herself is the only witness and the doctor’s certificate that has been produced by the prosecution without examining the doctor himself is of no avail to the prosecution. Although the same has been taken into consideration presumably under section 23 of the said Ain. In this connection it may be pointed out that immediately after recovery of the victim girl she was brought before the Magistrate where her statement under section 22 of the Ain was recorded where she has categorically disclosed about the act of rape perpetrated upon her by Appellant No. 1 and the said statement has been fully corroborated by her while deposing before the Court as P.W. 2. Therefore, we have no hesitation to rely on the principle of law enunciated in the case of Siraj Mal -Vs- The State where it has been held by a Division Bench of this Court as under:-

“ It is true that in a case of sexual offence, if the victim is a woman of full age then of course without independent corroboration of her evidence, the prosecution case should not be believed, as because of her full age she may be a willing or consenting party to the game, but when the victim girl is a minor, her evidence if otherwise found to be truthful and reliable may be sufficient for conviction of the accused even without any independent corroboration.”

16. From a reading of the said case reported in AIR 1956 (All) 22 we find that it has been held in that case as under:-

“Cases of rape, involving bad reputation on the family of the victim herself, frequently are not brought to Court, and if brought, are with the greatest reluctance, and therefore, if a girl does come forward and alleges that she has been raped her evidence should carry more weight than the evidence of an ordinary witness.”

17. The next case relied on by the learned Assistant Attorney General is the case of Bharwada Bhoginbhai Hirjibhai –Vs- The State of Gujarat reported in AIR 1983 (SC) 753 wherefrom we find that the Indian Supreme Court has enunciated the principle of corroboration to the testimony of prosecutrix with the following words as under:-

“It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offences. This Court, in Rameshwar V. State of Rajasthan, (1952) 3 SCR 377 at p-386: (AIR 1952 SC 54 at p-57) has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J, who spoke for the Court-

The Rule, which according to the cases has hardened into one of law, is not that a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, ... ... ... ... ... ... ... ... ... ... ... .... .... ....

The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.”

18. In the Case before us out of the 12 (twelve) prosecution witness the father of the victim Putul namely, Abdul Jabbar deposed as P.W. 1 who deposed before the Court that on the night following 20.05.2001 at about 12 mid night his daughter Sabina Yesmin @ Putul aged about 13 years went out of her house with her cousin sister Parvin to attend the call of nature; while returning back Shafiqul with the aid of other accused persons forcibly kidnapped Putul; hearing alarm raised by Putul and Parvin other witnesses came around the scene but P. W. 1 was not at home. So he returned back at home on the next morning hearing the news on 21.05.2001; there was an attempt of compromise to recover the girl but it was in vain. Subsequently on 23.05.2001 an entry in the General Diary with Jhenaigati was registered. Yet the police could not trace her out. Therefore Abdul Jabbar the P.W. 1 lodged a petition of complaint with Nari-O-Shisu Nirjatan Daman Tribunal on 30.05.2001 marked as Exhibit-1; the victim Putul was kept confined and was shifted 37 times at different places and she was ravished by accused Shafiqul by force and had also forced her to put her signature in a Kabinnama.

19. In his cross-examination P.W. 1 has admitted that accused Shafiqul worked at his house as a house hold servant. He denied the suggestion that Shafiqul had to leave the job as Putul was in love with him or that Putul compelled him marry her.

20. P.W. 2 Sabina Yeasmin @ Putul, the victim girl deposed to the effect that on the night following 20.05.2001 at about 12 mid night she along with her cousin Parvin went out of the house to attend call of nature when accused Shafiqul and his men kidanpped her by force pointing arms, she was lifted to the house of Billal where she was detained and shafiqul committed rape; next morning she was shifted to the house of accused Bakkar where also she was violated against her will by force and on the following night she was taken to Mirganj and where she was kept confined for 10/12 days. Thereafter she was taken to Char Sherpur by night. In the manner as aforesaid she was shifted from one place to another by accused Shafiqul, but all the times in all the places she was violated against her will by Shafiqul rather forcibly; the victim was confined at the house of Shamser Munshi wherefrom the police could recover her. Subsequently, she was taken to the Magistrate who recorded her statement and later on she was taken to Sherpur Sadar Hospital for medical examination and ultimately she was handed over to her father’s custody; this witness P.W. 2 admitted her signature on the statement recorded under section 22 of the said Ain. She also deposed that her signature was obtained by force in the Kabin Nama. In her cross-examination P.W. 2 admitted that accused Shafiqul was serving as house servant for about a year last. She also disclosed that Shafiqul kept her confined for long 37 days at different places and had raped her on 10 to 12 occasions. She denied the suggestion that out of love and affection she had voluntarily left her parent’s house with Shafiqul and she herself compelled him to marry her. Victim Putul however, denied all the defence suggestion.

21. Halima Khatun, the mother of victim Putul deposed as P.W. 3 to the effect that on the fateful night at about 12 mid night her daughter Putul along with Parvin had gone out of the house to attend their call of nature where accused Shafiqul along others forcibly kidnapped her daughter Putul. Hearing alarm raised by Putul and Parvin she along with other witnesses rushed to the scene of occurrence and had recognized the accused persons with the help of torch light, but could not proceed as the miscreants were carrying weapons. Thereafter for the last 37 days Putul could not be traced out but ultimately police could recover the girl and on returning back home Putul disclosed the acts of rape committed by accused Shafiqul upon her keeping confined at different places.

22. P.W. 3 also reiterated that Putul was a student of class VIII reading in the local school at the relevant time. She also admitted that her husband came back home on the next morning and she disclosed everything about the occurrence to her husband; P.W. 3 also denies the suggestion from the defence that Putul herself compelled Shafique to marry her.

23. P.W. 4, Abdul Gafur, a brother of the informant deposed to the effect that on the date and time of occurrence when Putul and her cousin Parvin went out of their house to attend the call of nature accused Shafiqul and his men forcibly kidnapped Putul and hearing row raised by Parvin and Putul his son Hashmat rushed to the spot with the torch-Light and she also followed Hashmat and could recognise Shafique, Billal, Sekendar and 7/8 persons lifting Putul to an unknown destination. This P.W. 4 also disclosed that he heard the full details about the occurrence from victim Putul about commission of rape by Shafiqul upon her. This witness also disclosed that Hashmat could not follow Shafique or any accused persons as they were carrying weapons.

24. This witness also deposed that P.W.-7 Nurul Islam, P.W. 5 Hashmat and P.W. 10 Salam also recognised the accused persons while fleeing away with the victim. P.W. 4 also denied the defence suggestions to the effect that Putul volunteered to go with Shafique out of love and affection. He also deposed that the letter allegedly written, out of love, by Putul might have been created for the defence case.

25. Md. Hashmat Ali son of Adbul Gafur deposed as P.W. 5 who fully corroborated the assertions made by his father P.W.4 in his deposition in chief and in cross-examination he admitted about the recording of G.D Entry and the petition of complaint lodged by Abdul Jabbar. This witness in answering the question deposed further that he could not follow the accused persons while fleeing as Sakander gave him threat.

26. Parvin a little cousin of the victim girl Putul deposed as P.W. 6. She claimed herself to be a student of Class IV at the relevant time. She in her-deposition fully corroborated the assertions made by the victim herself as to what had happened at 12 mid night on the night following 20.5.2001. She also deposed, upon hearing row raised by her, her father (P.W.4) her brother (P.W.5) her uncle P.W.7 rushed to the place of occurrence with torch light and they also could recognize the accused persons (noting the demeanor the trial Court commented about her intelligence and confidence). This witness also denied the defence suggestion.

27. P.W. 7 Nurul Islam was simply tendered for cross-examination.

28. P.W.8, Abdul Awal deposed that both the parties were known to him as he was Imam of the local Mosque. He also deposed that on the next morning of the fateful night he having gone to the house of the informant, found Abu Bakkar, a member of the union parishad and some other local elites gathered there, where Putul’s father (P.W.1) disclosed that accused Shafique, Sekandar and Bellal had kidnapped her minor girl on the previous night. Thereafter all of them went to the house of Shafique where an altercation took place between them with the father of Shafique and father of Shafique informed them that he would not return back the girl. Thereafter the elites advised Abdul Jabbar to take legal measure. The witness denied the suggestion that the informant was his relation. He also denied the suggestion that he was deposing falsely.

29. Tara Mistry disposed in the case as P.W. 9 who disclosed that hearing hue and owy he had rushed to the house of the information where his wife being available disclosed that Shafique, Sekandar, Billal, Bakkar etc. had kidnapped Putul. This witness claims that he like others also took part in searching the girl out. But it was in vain. In cross-examination he stated that he was not related any of the parties and on reaching the scene of occurrence he found commotion ensued there.

30. Moulvi Farid Ahmed, the marriage register of Gosaipur as P.W. 11 deposed that on that day at night some 7/8 persons brought Putul wearing veil for solemnizing marriage between the girl and accused Shafiqul. In cross-examination he admitted that he did not know the age of the girl nor he could see or perceive her age as she was wearing veil. Yet he did not inform the girl’s father although P.W. 11 claims him to be his friend.

31. P.W. 12 Md. Sakhaul Hossain a Sub-Inspector of Police deposed as an Investigating Officer in this case who in his deposition claimed that upon investigation and upon recording the statement of the victim under Section 22 through the Magistrate as also upon examination of the victim by the doctor he could detect complicity of accused Shafiqul Islam alone in the case. Accordingly, submitted charge sheet on 16.10.2001. In his cross-examination this witness admitted that on 23.5.2001 the same informant registered G.D. Entry No. 776 without mentioning the name of any accused. But in the subsequent petition of complaint lodged on 30.5.2001 he disclosed the names of the accused persons. This witness also admitted that during investigation the other witness did not disclose the involvement of other accused persons except Shafiqul.

32. These are the factual aspect disclosed by the aforesaid witnesses in short.

33. Turning to the case before us we have already noticed that the victim girl was kidnapped and there after kept confined for long about 37 days and in the meantime a show of marriage was also played and immediately after her recover she disclosed before the Magistrate that she was ravished in course of her confinement, by the appellant No. 1 and such statement finds full support from her deposition before the Court. Therefore we can fully rely on the testimony of P.W.2 with respect to the offence of rape perpetrated on her by Appellant No. 1.

34. Turning to the other part of the case, allegation of participation of the appellant Nos. 2 and 3 namely, Sekandar Ali and Billal we find that P.W. 2 the star witness in this case and the victim herself while making a statement before the Magistrate immediately after her recovery recorded under section 22 of the Ain, she did implicate Appellant Nos. 2 and 3 as a participant in the act of kidnapping or abduction. This statement under Section 22 of the Ain made by P.W. 2 does not support her deposition before the Court implicating appellant Nos. 2 and 3. Similarly P.Ws. 3, 4, 5 and 6 though disclosed the complicity of appellant Nos. 2 and 3 before the Court yet they did not produce the means of recognition of the accused persons to the investigating officer as they claimed in their deposition and the investigating officer also did not seize any of the means of recognition by which these witnesses namely, P.Ws. 3, 4, 5 and 6 claimed to have recognized the accused persons. More over P.W. 4 Abdul Gafur and P.W. 5 Hashmat Ali did not disclose the act of their recognition of appellant Nos. 2 and 3 before the investigating officer who recorded their statements under section 161 of the Code of Criminal Procedure. While P.W. 12 Sakil Hossain deposing as the Investigating Officer of this case admitted in his cross-examination as under:-

35. From the circumstances as disclosed above, we are of the opinion that the complicity of the appellant Nos. 2 and 3 in the offence of ÒAcniYÓ remains a hazy one. Therefore, the prosecution could not prove the charge of ÒAcniYÓ against them beyond reasonable doubt. Therefore, in our opinion these two appellants are entitled to get the benefit of doubt in this case.

36. The learned Assistant Attorney General has lastly Pointed out that appellant Nos. 1 and 2 obtained bail from this court for six months on 02.04.2006 but they did not get the said order of bail extended any further, therefore, they are, at the moment fugitive from Justice, as such they are not entitled to any relief.

37. The learned Advocate for the appellant finds it difficult to refute such submission on behalf of the state.

38. So we find that this appeal is liable to be dismissed as a whole. Hence, this appeal fails and the impugned Judgment and order of conviction and sentence are hereby affirmed.

39. Note:-Before putting our signatures in this judgment we thought it proper to re-hear the appeal, accordingly the same was placed in the list for re-hearing on 08.05.08 followed by the concluding part of the judgment. Therefore, the concluding part delivered on 08.05.08 must be treated as part of the judgment in Criminal Appeal No. 2747 of 2004

08.05.08.

Mr. Khandaker Khurshid Alam

. . .For the appellant.

Mr. Mohammad Ali Akand, D.A.G.

. . . For the State

40. This appeal was taken up for hearing on 10.02.08, 13.02.08 and 14.02.08 and judgment was delivered on February 19, 2008 and by an elaborate judgment, on merit, this Court found that the appeal in respect of the appellant No. 1 was liable to be dismissed while the appeal in respect of the appellant Nos. 2 and 3 was otherwise, in that this Court had found that the appellant Nos. 2 and 3 were entitled to the benefit of doubt therefore they were entitled to be acquitted, despite such a position at the end of the day it was brought to our notice that the appellant Nos. 2 and 3 namely, Sekandar Ali and Billal having obtained bail on 02.04.06, during pendency of the appeal, for a limited period of 6(six) months, did not get their limited bail extended any further, therefore, it was pointed out before us that the appellant Nos. 2 and 3 were fugitive from law as such they were not entitled to any relief by way of an appeal.

41. Having approved such contention we rather felt constrained to dismiss the appeal in respect of appellant Nos. 2 and 3 as well but before putting our signatures on the judgment we felt it necessary to reconsider the position of law and eventually Mr. Saiful Bashor Bhandari the learned Advocate pointed out a decision before us hoping it to be helpful for the ultimate verdict, therefore we wanted Mr. Bhandari to cite the decision, putting the appeal in the list for rehearing on 08.05.08 accordingly he referred to the decision in the case of Saidur Rahman alias Chan Miah and others Vs. The State reported in 40 DLR (AD) 281. We have ourselves gone through the judgment delivered by their lordships of the Appellate Division wherefrom we find that the appeal by the appellants in that case was summarily dismissed in course of admission thereof by the High Court Division holding that the appellants were fugitive from law under the circumstances as under:- the appellants having been convicted under Section 147 of the Penal Code were sentenced to suffer 2 years rigorous imprisonment with a fine of Tk. 1000/00 each they obtained bail from the learned Sessions Judge, who conducted the trial in the case and the appeal was preferred with the said order of bail granted by the Sessions Judge, but in course of admission of the appeal the High Court Division found that the Sessions Judge was not competent to grant bail under Section 426 of the Code of Criminal Procedure if the sentence is more than one year, as such, the order of bail as granted by the Sessions Judge was not sustainable in law therefore the appellants were found to be fugitive from law by the High Court Division accordingly their appeal was dismissed summarily.

42. As against the dismissal order of the appeal by the High Court Division the appellants preferred Criminal Petition for Leave to Appeal before the Appellate Division where leave was granted and finally the appeal was disposed of by their lordships holding inter alia to the effect that it is true that the Sessions Judge was not competent to grant such bail under Section 426 of the Code of Criminal Procedure since the sentence was in excess of one year. The order was therefore, illegal but the fact remains that the appellants submitted themselves to the sentence passed and obtained an interim order of bail in their favour albeit wrongly. In the facts of the case it will be less than charitable to attribute to the appellants that they were “fugitive from law”. There was nothing in their conduct to show that they were running away from the jurisdiction of the court or avoiding its process.”

43. Having gone through the judgment we felt it proper to bring the appeal in the list for re-hearing. Accordingly, we have brought it to-day in the list and allowed the learned Advocate for the appellants including Mr. Mohammad Ali Akand, the learned Deputy Attorney General to appear before this Court. The learned Deputy Attorney General has also made his submissions in this case on this particular point Specifically.

44. Having appeared before this Court the learned Deputy Attorney General has pointed out the provisions of Sections 419, 422 and 423 of the Code of Criminal Procedure in support of his contention that in an appeal specially under section 410 of the Code of Criminal Procedure the law does not require the presence of the appellant or appellants themselves before this Court rather the mandate of law as available under the aforesaid provisions are that the appellants can safely be represented by their counsel or counsels.

45. Mr. Mohammad Ali Akand, the learned Deputy Attorney General has also referred the case of Awal Khan and another Vs. The State reported in PLD 1957 (WP) (Pesh) 75 in support of his contention that after filing of the appeal, even if the accused appellant escaped from jail then his appeal has to be disposed of on merit, having gone through the said judgment we find that two convicts had gone for appeal to the High Court of Peshawar and both the appellants preferred one appeal through their counsel but during pendency of the appeal it transpired that one of the appellants bearing the name Muhammad Anwar escaped from jail and had remained in abscondence till hearing of the appeal and at such stage a question arose whether his appeal should also be heard and decided on merit in his absence and having considered the position of law as available under Sections 421, 422 and 423 Code of Criminal Procedure, the High Court of Peshawar had held that his appeal should also be disposed of on merit.

46. The learned Deputy Attorney General appears to have waded though this subject and has also been able to find out two other cases from the Indian jurisdiction on the same line of them the one is the case of Parasuram Patel and another Vs. State of Orissa reported in (1994) 4 SCC 664 whereby the India Supreme Court has laid down the principle that the appeal is to be disposed of on merit it can not be dismissed for default even in the absence of the appellant or their counsels.

47. We have referred to the position of law with respect the term: “Fugitive from law”,

48. In his connection the factum matrix involved in this case has to be referred once again, such as the appellants who are appellant Nos. 2 and 3, during pendency of the appeal before this Court, they were enlarged on bail vide order dated 02.04.2006 of course for a limited period of 6 (six) months, consequently they were released from the jail. It was of course, incumbent upon the learned Counsel for the appellants to get the said order of bail extended from time to time, this was not done by the learned Counsel, may be a fault on the part of the learned Counsel. Now the question arises as to whether such a default on the part of learned counsel, can be attributed to the appellants without any notice upon them to that effect, with a view to bring them within the mischief of the term “fugitive from law” ? more particularly when we have already noticed that they have sufficiently complied with the command of the court by remaining inside the jail while filing this appeal. Therefore, we find it profitable to quote from the judgment of the Appellate Division, as we have already referred to above and reported in 40 DLR (AD) 281. “It would be less than chartable” to attribute to the appellants that they were ‘fugitive from Law”.

49. Under these circumstances as stated above, and the position of law discussed, we find that we can safely dispose of the appeal by the appellant Nos. 2 and 3 as well as on merit and in doing so we can proceed accordingly.

50. In the result this appeal is dismissed in respect of appellant No. 1 while the same is allowed in respect of appellant Nos. 2 and 3.

51. The impugned judgment and order of conviction and sentence dated June, 13, 2004 passed by the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur in Nari-O-Shishu Nirjatan Daman Tribunal Case No. 115 of 2001 is hereby affirmed, so far as it relates to the appellant No. 1 Shafiqul Islam son of Kamal Uddin alias Kamal while the same Judgment and order of conviction and sentence, so far it relates to appellant Nos. 2 and 3 namely (2) Sekandar Ali son of late Abdul and (3) Billal son of late Abdul Khaleque are hereby set aside.

52. Accordingly, the appellant Nos. 2 and 3 are acquitted as such discharged from their respective bail bonds.

53. Send down the lower court’s records along with a copy of this judgment to the Nari-O-Shishu Nirjatan Daman Tribunal, Sherpur for compliance.

Ed.

Criminal Appeal No. 2747 of 2004

Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizur Rahman and others

Case No: Civil Appeal No. 155 of 2003

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mustafa Niaz Muhammad,Mr. Khurshid Alam Khan,,

Citation: 60 DLR (AD)(2008) 42

Case Year: 2008

Appellant: Shafiqul Islam Chowdhury (Md.) and others

Respondent: Mustafizur Rahman and others

Subject: Property Law,

Delivery Date: 2008-01-07

Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizur Rahman and others
60 DLR (AD)(2008) 42

Supreme Court
Appellate Division
(Civil)

Present:
Md. Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J

Shafiqul Islam Chowdhury (Md.) and ors....Appellants
Vs.
Mustafizur Rahman and ors ................Respondents

Judgment
January 7, 2008.

The Code of Civil Procedure, 1908 (V of 1908)
Order VI rule 17
Substitution of the prayer for recovery of possession in a prayer for partition by amendment of plaint in a suit for declaration of title and recovery of possession will not change the nature and character of the suit…..(9)

Lawyers Involved:
Mustafa Niaz Muhammad, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on- Record—For the Appellants.
Md. Khurshid Alam Khan, Advocate, instructed by ASM Khalequzzaman, Advocate-on-Record —For the Respondents.

Civil Appeal No. 155 of 2003.
(From the judgment and order dated 5-12-2001 passed by the High Court Division in Civil Revision No. 4631 of 2000).

Judgment

Md. Joynul Abedin J.- This appeal by leave is directed against the judgment and order dated 5-12-2001 passed by a Division Bench of the High Court Division in Civil Revision No. 4631 of 2000 discharging the Rule and thereby refusing amendment of the plaint.

2. The appellants as plaintiffs filed Other Suit No. 184 of 1994 for declaration of title and Khas possession by evicting the defendants on removing obstructions. The defendants appeared and tiled written statement opposing the claim of the plaintiffs. The plaintiffs thereafter filed an application under Order VI, rule 17 of the Code of Civil Procedure for amendment of the plaint by incorporating a prayer for partition as an alternative to the prayer for eviction and also for addition of two persons as defendants.
The trial Court on consideration of the application for amendment rejected the same on contest by order dated 3-9-2000 on the ground that the amendment sought, if allowed, would totally change the nature and character of the suit. The plaintiffs then challenged the aforesaid order dated 3-9-2000 in revision and a Division Bench of the High Court Division initially issued Rule but finally discharged the same on affirmance of the said order of the trial Court on the ground that the amendment in question would not help settle the real "controversy in issue whether the plaintiff was in possession and then, was dispossessed from the schedule Kha land".

3. Against this backdrop, the plaintiffs, who are appellants before us, filed the civil petition for leave to appeal. Leave was granted in the following terms:
"Whether the proposed amendment does change the nature and character of the suit or it is an additional/alternative prayer for doing the complete justice in the matter, requires investigation."

4. We have heard Mr. Mustafa Niaz Muhammad, the learned Advocate for the appellant and Mr. Md. Khurshid Alam Khan, the learned Advocate for respondents and perused the judgment of the High Court Division and other connected papers.

5. The learned Advocate for the appellants submits that the amendment in question in effect seeks to incorporate an alternative prayer for partition if the defendants are found to be co-sharer in the suit holding and such amendment will not change the nature and character of the suit, rather such alternative prayer should be considered necessary for the purpose of effective adjudication of the matter in dispute and for doing the complete justice in the matter avoiding multiplicity of suits and proceedings and, as such, the learned Subordinate Judge as well as the learned Judges of the High Court Division erred in law in rejecting the prayer for amendment of the plaint.

6. In order for correct understanding of the question at issue and the dispute between the parties it is necessary to be apprised of the respective contentions of the parties. The plaintiffs purchased the suit land on 15-8-1975 from one Mrs. Anwanil Islam, wife of one Sirajul Islam, in RS Dag Nos. 2632, 2633 and 2637 from the western portion of the said Dags, Defendant Nos. 1 and 5 and one Abul Kalam Azad purchased 1 Kani 4 gonda 3 kara 1 danti land from the eastern portion of the said Dags by kabala dated 13-2-1986 from Anwarul Islam Boby, son of said Sirajul Islam. Defendant Nos. 2-4 exchanged some of their purchased land with defendant No. 1. But the defendants forcibly dispossessed the plaintiffs from a portion of their purchased land as shown in the Kha schedule to the plaint on 16-6-1993. The defendants do not dispute the purchase of the suit land by the plaintiffs from the wife of Sirajul Islam but they only denied the allegation of dispossession of the plaintiffs from the suit land mentioned in the Kha schedule to the plaint. In this context of the dispute the plaintiffs prayed for the amendment in the plaint.

7. The learned Advocate for the plaintiff-appellants submits that since the defendants admit that the plaintiffs purchased the suit land from the suit holding the plaintiffs are therefore co-sharer in the suit holding with the defendants. Hence the amendment for partition of the suit land is permissible in law as an alternative prayer in case the dispossession of the plaintiffs by the defendants, is not proved. The learned Advocate for the defendants on the other hand, contends that the real question in controversy is, whether the plaintiffs had possession and they were subsequently dispossessed by the defendants. But the amendment to the plaint seeking incorporation by way of an alternative prayer for partition is not considered necessary to resolve the dispute between the parties. The amendment has therefore, been rightly disallowed.

8. From the pleadings of the parties, it is clearly discernible that both the parties are co-sharers to the disputed holding by purchase and exchange. The only question that is raised and calls for determination is, whether the plaintiffs are owners having title to the land described in the Kha schedule to the plaint and whether they have been dispossessed therefrom by the defendants and are entitled to recovery of possession thereof from the defendants. It is therefore, clear that the instant case is not a case for mere recovery of possession by the plaintiffs under section 9 of the Specific Relief Act regardless of whether the plaintiffs have title to the suit land. But regrettably both the trial Court as well as the High Court Division in erratic and perfunctory exercise of their judicial function rejected the aforesaid prayer for partition of the suit land by way of amendment to the plaint after declaration of title thereto by the plaintiffs. Both the Courts below mistook the present suit as a suit for recovery of possession under section 9 of the Specific Relief Act regardless of whether the plaintiffs have title to the suit land. But regrettably both the trial Court as well as the High Court Division in erratic and perfunctory exercise of their judicial function rejected the aforesaid prayer for partition of the suit land by way of amendment to the plaint after declaration of title thereto by the plaintiffs. Both the Courts below mistook the present suit as a suit for recovery of possession under section 9 of the Specific Relief Act and rejected the prayer for amendment of the plaint. This is a glaring example of non-application of mind to the facts of the case by the learned Judges of the High Court Division.

9. Amendment of a plaint can be allowed in the discretionary power of the Court and such discretion is required to be exercised judicially and not in an arbitrary or perfunctory manner amounting to an illegal exercise of jurisdiction. An amendment to the plaint must not be allowed if it tends to change the character of the plaint or the character of the suit. In the instant case, the amendment sought for will not change the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy by allowing partition and giving possession of the respective share of the parties to the suit land by dividing the suit land between the parties by metes and bounds on measurement if necessary. Both the Courts below therefore committed an error in law in rejecting the prayer for amendment of the plaint for partition as an alternative prayer.
The appeal is accordingly, allowed without any order as to cost.
Ed.

Shafiqur Rahman Vs. Bangladesh Jatiya Samabaya Bank

Case No: Civil Revision No. 681 of 1986.

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: A J Mohammad Ali,MMA Azim Khair,,

Citation: 53 DLR (2001) 78

Case Year: 2001

Appellant: Shafiqur Rahman

Respondent: Bangladesh Jatiya Samabaya Bank

Subject: Property Law,

Delivery Date: 2000-12-06

Shafiqur Rahman Vs. Bangladesh Jatiya Samabaya Bank
53 DLR (2001) 78

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Abdur Rashid J

Shafiqur Rahman………..Petitioner
Vs.
Bangladesh Jatiya Samabaya Bank………………..Opposite Party

Judgment
December 6, 2000.

Code of Civil Procedure (V of 1908)
Section 48
Limitation Act (IX of 1908)
Article 182
An execution to be validly proceeded with must satisfy that the application last in point of time for execution was not made after the expiration of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.

Cases Referred To-
ADC (Revenue) Pabna Vs. Md Abdul Halim Miah, 48 DLR (AD) 141; Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5.

Lawyers Involved:
AJ Mohammad Ali, Advocate—For the Petitioner.
MMA Azim Khair, Advocate— For the Opposite Party.

Civil Revision No. 681 of 1986.

Judgment

Md. Abdur Rashid J. - This Rule was obtained by the judgment-debtor upon making an application under section 115 of the Code of Civil Procedure against order No.91 dated.13-09-86 passed by the executing Court, Subordinate Judge and Commercial Court No.1 at Dhaka in Money Execution Case No. 76 of 1985.

2. It appears from the record that opposite party Bangladesh Jatiya Samabaya Bank obtained a money decree dated 05-09-56 for Taka 49,604.08 in Money Suit No. 13 of 1956 against the petitioner and another.

3. ‘Decree-holder started unsuccessfully Money Execution Case No. 8 of 1957 on 12-06-58; Money Execution Case No. 2 of 1960 on 15-03-60; and Money Execution Case No. 10 of 1966 on 12- 12-66. Money Execution Case No. 10 of 1966 was dismissed for default on 17-12-68. Order of dismissal was, however, set aside by the executing Court vides its order dated 15-02-69. Said order setting aside the order of dismissal was set aside by this Division on 26-04-7 6 in Civil Revision No. 309 of 1967 and the order of dismissal of the execution was confirmed. Thereafter, in Civil Appeal No. 30 of 1980, the Appellate Division by order dated 09-09-80 upheld the order of Subordinate Judge restoring the execution Case under section 151 of the Code of Civil Procedure and set aside the order of this Division dated 26-04-76 dismissing Money Execution Case No. 10 of 1966, and restored the execution Case to its file and number.

4. The opposite party-decree-holder, thereafter, put again said decree in execution and Money Execution Case No. 76 of 1985 was registered on 28-03-85. On 13-09-86 objections were raised on behalf of the petitioner-judgment debtor to the continuance of the execution as it was barred by limitation. The executing Court by its order passed on the same date rejected the application on the ground that ‘after repeal of section 47 of the Code of Civil Procedure the application is not maintainable in its present form.’

5. Mr AJ Mohammad Ali, the learned Advocate appearing for the petitioner submits that the execution proceeding is barred both under the provisions of section 48 of the Code of Civil Procedure and article 182 of the Limitation Act and the executing Court, therefore, committed serious error in rejecting the application for dismissal of the executing proceeding without reference to provision of section 48 of the Code of Civil Procedure and/or article 142 of the Limitation Act.

6. Mr Anwarul Azim Khair, the learned Advocate appearing for the opposite party, submitted that Towfique Ahmed Rahman, an heir of judgment-debtor late Shafiqur Rahman, Senior Advocate of the Supreme Court wrote on 26-11 -94 to the decree holder expressing his readiness to re-pay the outstanding dues of his father on certain conditions. The said letter was then forwarded to legal Adviser for necessary opinion. Upon such letter, Mr Anwarul Azim Khair submits that if the Case is remanded to the executing Court the parties would have chance to settle the dispute amicably.

7. Under section 48 of the Code of Civil Procedure fresh application for execution presented after the expiration of 12 years from the date of decree sought to be executed has been barred. Under article 182 of the Limitation Act time for execution of a decree is three years from the date of the decree or order; or the date of final decree or order of the appellate Court. In view of the provisions, an execution to be validly proceeded with must satisfy that, the application last in point of time for execution was not made after the expiration of the period of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order. In the case of ADC (Revenue), Pabna Vs. Md. Abdul Halim Miah, 48 DLR (AD) 141 it was held that “An application for execution has, therefore, to satisfy first article 182 of the Limitation Act being the earliest period prescribed and then, also section 48 of the Code of Civil Procedure which prescribed maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail.”

8. In the Case of Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5, it was held,
“Even if successive applications are filed within 3 years of each order, it will not avail the decree holder if the last one is not put in within the period specified in section 48.”
The present Money Execution Case No. 76 of 1985 was started on the application for execution made on 28-03-85 which is far beyond 12 years from the date of decree dated 05-09-56 and also beyond 3 years from the date of appellate order of the Appellate Division on 9-9-84 passed in Civil Appeal No. 30 of 1980. The present proceeding, therefore, is barred by both special provisions of section 48 of the Code of Civil Procedure and general provisions of article 182 of the Limitation Act.

9. When the very execution proceeding is still-born, there is no scope for further proceeding in the matter. However, the application shown to me was addressed to the decree holder. The application is also as back as of a date 26-11-94. No decision appears to have been taken thereupon. Such an application does not deserve any consideration by this Division.

10. For the reasons stated above, the order of the executing Court dated 13-09-86 is, therefore, totally misconceived. Without reading the provisions of section 48 of the Code of Civil Procedure and article 182 of Limitation Act how the objections of judgment-debtor were rejected is also not understood. I, therefore, have no hesitation to say that the execution Court committed serious error of law in rejecting the application for dismissal of the time barred execution proceeding which resulted in an error in its decision occasioning failure of justice. In the result, the Rule is made absolute. No order as to cost. Money Execution Case No. 76 of 1985 is dismissed. Communicate this order to the executing Court at once. The order of stay granted earlier by this Court at the time of issuance of the Rule is hereby re-called and vacated.
Ed.

Shafiqur Rahman Vs. Bangladesh Jatiya Samabaya Bank, 53 DLR (2001) 78

Case No: Civil Revision No. 681 of 1986

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mr. A. J. Mohammad Ali,Mr. M. A. Azim Khair ,,

Citation: 53 DLR (2001) 78

Case Year: 2001

Appellant: Shafiqur Rahman

Respondent: Bangladesh Jatiya Samabaya Bank

Subject: Limitation,

Delivery Date: 2000-12-6

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Abdur Rashid, J.

Shafiqur Rahman
………………..Petitioner
Vs.
Bangladesh Jatiya Samabaya Bank
………………..Opposite Party

Judgment
December 6, 2000.

Code of Civil Procedure (V of 1908)
Section 48
Limitation Act (IX of 1908)
Article 182
An execution to be validly proceeded with must satisfy that the application last in point of time for execution was not made after the expiration 12 years and also not beyond three years from the date of decree or order, or appellate decree or order.

Cases Referred To-
ADC (Revenue) Pabna Vs. Md Abdul Halim Miah, 48 DLR (AD) 141; Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5.

Lawyers Involved:
AJ Mohammad Ali, Advocate—For the Petitioner.
MMA Azim Khair, Advocate— For the Opposite Party.

Civil Revision No. 681 of 1986.

JUDGMENT

Md. Abdur Rashid J.

1. This Rule was obtained by the judgment-debtor upon making an application under section 115 of the Code of Civil Procedure against order No.91 dated.13-09-86 passed by the executing Court, Subordinate Judge and Commercial Court No.1 at Dhaka in Money Execution Case No. 76 of 1985.

2. It appears from the record that opposite party Bangladesh Jatiya Samabaya Bank obtained a money decree dated 05-09-56 for Taka 49,604.08 in Money Suit No. 13 of 1956 against the petitioner and another.

3. Decree-holder started unsuccessfully Money Execution Case No. 8 of 1957 on 12-06-58; Money Execution Case No. 2 of 1960 on 15-03-60; and Money Execution Case No. 10 of 1966 on 12-12-66. Money Execution Case No. 10 of 1966 was dismissed for default on 17-12-68. Order of dismissal was, however, set aside by the executing Court vides its order dated 15-02-69. Said order setting aside the order of dismissal was set aside by this Division on 26-04-7 6 in Civil Revision No. 309 of 1967 and the order of dismissal of the execution was confirmed. Thereafter, in Civil Appeal No. 30 of 1980, the Appellate Division by order dated 09-09-80 upheld the order of Subordinate Judge restoring the execution Case under section 151 of the Code of Civil Procedure and set aside the order of this Division dated 26-04-76 dismissing Money Execution Case No. 10 of 1966, and restored the execution Case to its file and number.

4. The opposite party-decree-holder, thereafter, put again said decree in execution and Money Execution Case No. 76 of 1985 was registered on 28-03-85. On 13-09-86 objections were raised on behalf of the petitioner-judgment debtor to the continuance of the execution as it was barred by limitation. The executing Court by its order passed on the same date rejected the application on the ground that ‘after repeal of section 47 of the Code of Civil Procedure the application is not maintainable in its present form.’

5. Mr AJ Mohammad Ali, the learned Advocate appearing for the petitioner submits that the execution proceeding is barred both under the provisions of section 48 of the Code of Civil Procedure and article 182 of the Limitation Act and the executing Court, therefore, committed serious error in rejecting the application for dismissal of the executing proceeding without reference to provision of section 48 of the Code of Civil Procedure and/or article 142 of the Limitation Act.

6. Mr Anwarul Azim Khair, the learned Advocate appearing for the opposite party, submitted that Towfique Ahmed Rahman, an heir of judgment-debtor late Shafiqur Rahman, Senior Advocate of the Supreme Court wrote on 26-11 -94 to the decree holder expressing his readiness to re-pay the outstanding dues of his father on certain conditions. The said letter was then forwarded to legal Adviser for necessary opinion. Upon such letter, Mr Anwarul Azim Khair submits that if the Case is remanded to the executing Court the parties would have chance to settle the dispute amicably.

7. Under section 48 of the Code of Civil Procedure fresh application for execution presented after the expiration of 12 years from the date of decree sought to be executed has been barred. Under article 182 of the Limitation Act time for execution of a decree is three years from the date of the decree or order; or the date of final decree or order of the appellate Court. In view of the provisions, an execution to be validly proceeded with must satisfy that, the application last in point of time for execution was not made after the expiration of the period of 12 years and also not beyond three years from the date of decree or order, or appellate decree or order. In the case of ADC (Revenue), Pabna Vs. Md. Abdul Halim Miah, 48 DLR (AD) 141 it was held that “An application for execution has, therefore, to satisfy first article 182 of the Limitation Act being the earliest period prescribed and then, also section 48 of the Code of Civil Procedure which prescribed maximum period of limitation. If the execution petition is hit by any of the two provisions it is to fail.”

8. In the Case of Bangladesh JS Bank Vs. Sangbad, 36 DLR (AD) 5, it was held,

“Even if successive applications are filed within 3 years of each order, it will not avail the decree holder if the last one is not put in within the period specified in section 48.”

The present Money Execution Case No. 76 of 1985 was started on the application for execution made on 28-03-85 which is far beyond 12 years from the date of decree dated 05-09-56 and also beyond 3 years from the date of appellate order of the Appellate Division on 9-9-84 passed in Civil Appeal No. 30 of 1980. The present proceeding, therefore, is barred by both special provisions of section 48 of the Code of Civil Procedure and general provisions of article 182 of the Limitation Act

9. When the very execution proceeding is still-born, there is no scope for further proceeding in the matter. However, the application shown to me was addressed to the decree holder. The application is also as back as of a date 26-11-94. No decision appears to have been taken thereupon. Such an application does not deserve any consideration by this Division.

10. For the reasons stated above, the order of the executing Court dated 13-09-86 is, therefore, totally misconceived. Without reading the provisions of section 48 of the Code of Civil Procedure and article 182 of Limitation Act how the objections of judgment-debtor were rejected is also not understood. I, therefore, have no hesitation to say that the execution Court committed serious error of law in rejecting the application for dismissal of the time barred execution proceeding which resulted in an error in its decision occasioning failure of justice. In the result, the Rule is made absolute. No order as to cost. Money Execution Case No. 76 of 1985 is dismissed. Communicate this order to the executing Court at once. The order of stay granted earlier by this Court at the time of issuance of the Rule is hereby re-called and vacated.

Ed.

Shafiqur Rahman Vs. Idris Ali, 37 DLR (AD) (1985) 71

Case No: Civil Appeal No. 1 of 1983

Judge: Shahabuddin Ahmed ,F.K.M.A. Munim,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Rafique-ul-Huq,,

Citation: 37 DLR (AD) (1985) 71

Case Year: 1985

Appellant: Shafiqur Rahman

Respondent: Idris Ali

Subject: Interpretation of Statute,

Delivery Date: 1983-10-31

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J

Shafiqur Rahman
……...............Appellant
Vs.
Idris Ali
……………...Respondent

Judgment
October 31, 1983

The State Acquisition and Tenancy Act, 1951
Sections 9(1), 9(2), 9(3)
Interpretation of Statutes
Section 9(1) of the State Acquisition and Tenancy Act substituted by Ordinance XXVII of 1961 lifted embargo on all transfers of land agricultural or nonagricultural, not exceeding 10 Bighas and this amendment was given retrospective effect from the date section 9 of the State Acquisition and Tenancy Act came into force on 16.5.51. ………….(20)

The Amendment under Ordinance XXVII of 1961 having brought in giving retrospective effect and the deed of the Respondent being executed during such period of retrospective operation, the Judgment debtor had no saleable interest in the suit land to be transferred by subsequent court-sale - Per Shahabuddin Ahmed J.………..(21)

“It was held by the Supreme Court of Pakistan that the legislature which is competent to make a law has full and plenary power to legislate retrospectively and prospectively.” Hamoodur Rahman CJ. - Per Shahabuddin Ahmed J..............(23)

“It is a fundamental   rule of English law that no statute shall be construed to have a retrospective   operation   unless such a construction   appears   very clearly    in   the terms of the   Act or arises by necessary   and distinct implication” - Per Shahabuddin Ahmed J.……………..(24)

On the ground of equity and justice   the   appellant's vested right by court-sale should not have been affected by a subsequent enactment. But in view of express language of the amending statute the Court   cannot   give   a   different interpretation on   the ground   of equity and justice. By majority decision the Appeal is dismissed. - Per Shahabuddin Ahmed J…………….(26)

Cases Referred To-
Colonial Sugar Mills Company Vs. Irving (1905) AC 369; M/S Haider Automobile Ltd. vs. Pakistan and Province of West Pakistan v. Manzoor Quader (1970) 22 DLR (SC) 65, 1969 PLD SC 623; Syedur Rahman V. Chief Election Commissioner, 17 DLR SC 23; Delhi Cloth & General Mills Company vs. Income-tax Commissioner, AIR 1927 PC 242; Province of West Pakistan vs. Manzoor Quader, PLR 1969 SC 623; Tarapada Ghose vs. Marimnessa Bibi, 19 DLR 711.

Lawyers Involved:
Rafiq-ul-Huq, Senior Advocate (M. Hafizullah, Advocate with him, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
B.K Das, Advocate, Instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Respondent.

Civil Appeal No. 1 of1983.
(From the judgment and decree dated August1, 1979 passed by the High Court Division in First Appeal No. 163 of 1963.)

JUDGMENT

Fazle Muim CJ.

This appeal arises from First Appeal No. 63 of 1963 passed by the High Court Division on 1-8-79.

Plaintiff-appellant instituted Title Suit No.73 of 1961 in the Court of Subordinate Judge, Sylhet for declaration of title and recovery of possession. Facts as stated in the plaint are that his father Haji Kalimullah used to advance money to Jogesh Chandra Das who was his retained lawyer. Before leaving for Calcutta for treatment of his illness Jogesh Chandra Das took loan from him, but as the loan was not repaid plaintiff-appellant filed Money Suit No. 3 of 1958 in the court of Subordinate Judge, Sylhet. During the pendency of the suit Jogesh Chandra Das died but the suit was decreed. In execution of the decree plaintiff appellant purchased the properties described in schedule 1 to the plaint for Tk. 4,500/- on September 20, 1959, and in pursuance of the auction sale took delivery of possession on February 2, 1960. As the decretal amount was not fully satisfied by the first sale, property described in Schedule 2 of the plaint was auction purchased by plaintiff-appellant for Tk. 3,100/- on February 16, 1961. As the properties were, however, in possession of defendant-respondent, he could not obtain actual possession of the properties.

2. Plaintiff-appellant on enquiry came, to learn that defendant-respondent in collusion with Jogesh Chandra Das created an ante-dated kabala on January 20, 1958 in respect of the properties auction purchased by him and got the kabala registered through one Ahmed Khan alleged to be the attorney of Jogesh Chandra Das. Plaintiff appellant asserted that as Jogesh Chandra Das was a rent-receiver he was required to take prior permission for transfer of the properties which he did not do, his application for permission having been rejected. According to plaintiff-appellant, the intended transfer by the aforesaid kabala is, therefore, hit by the provisions of section 9 of the Sate Acquisition and Tenancy Act rendering the same null and void. Plaintiff-appellant acquired perfect lawful right and interest in the suit properties and was entitled to recovery of khas possession thereof.

3. Defendant-respondent contested the suit in the written statement it was stated that Jogesh Chandra Das, a senior Pleader of Sylhet, having suffered a stroke of paralysis left for Calcutta for better treatment. During his illness he incurred   some debt. As he was required to clear off the debts he transferred his residential house along with other lands measuring 1½ bigha for a consideration of Tk. 15,000/- to defendant-respondent and executed a kabala on January 30, 1958. For affecting the transfer he executed a power of attorney in favour of Ahmed Khan on January 28, 1958. Properties in question were purchased by the defendant-respondent before the institution of the plaintiff's money suit. He, therefore, acquired a lawful interest in the suit properties. After purchase he constructed a pucca boundary wall which was not in existence before his purchase. The trial Court dismissed the suit on finding that Ext. A, the kabala executed by Jogesh Chandra Das in favour of the defendant-respondent, was genuine and bona-fide document, not collusive and ante-dated as alleged by plaintiff-appellate. Further, though Jogesh Chandra Das was a rent-receiver, the transfer in question by Ext. A was not hit by section 9 of the State Acquisition and Tenancy Act as amended, because plaintiff-appellant did not succeed to establish that Jogesh Chandra Das transferred more than 10 standard bighas of land either agricultural or non-agricultural before the execution of the kabala, Ext. A. Plaintiff-appellant preferred First Appeal No. 63 of 1963 before the High Court Division which dismissed the appeal.

4. Being aggrieved plaintiff-appellant moved this Court and obtained special leave to appeal on the contentions as to whether the High Court Division was wrong in not holding that section 9 of the State Acquisition and Tenancy Act as amended by the Ordinance No. XXVII of 1961 had no application to the transfer in question and as such no interest passed to the defendant-respondent under the kabala, Ext. A.

5. The main point for consideration as appears from the contentions of learned Counsels appearing on behalf of the appellant and the respondent is whether the transfer under Ext. A, the kabala executed in favour of the defendant-respondent, was a valid transfer under the amended provisions of section 9(1) of the State Acquisition and Tenancy Act being prior to the auction sales under which the appellant claims to derive the title.

6. To decide this point it would be necessary to have a look at the provisions of Section 9 (1) of the Act as amended from time to time till 1961 to determine whether the section as amended till that date had any retrospective operation so as to validate the transfer under Ext. 1, defendant-respondent's kabala.
Section 9 of the Act reads thus:

(2) Any transfer made in contravention of the provisions of sub-section (1) shall be null and void."

Section 9 of the Act was amended in 1957 as follows:

"East Pakistan Ordinance No. XIV of 1957, 15-8-57. The East Bengal State Acquisition and Tenancy (Amendment) Act, 1957 in section 9 of the said Act in sub-section (1), for the full-stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:-
"Provided that any such rent-receiver shall be entitled to transfer by private sale or mortgage only, agricultural land in his khas possession not exceeding ten standard bighas in the aggregate, without any such permission."

7. In 1958, the same provisions were continued which are as follows —

East Pakistan Ordinance No. XLIV of 1958 dated 1-7-58. The East Bengal State Acquisition and Tenancy (Second Amendment) Ordinance, 1958.

In section 9 of the said Act, in sub-section (1); for the full-stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:—

"Provided that any such rent-receiver shall be entitled to transfer by private sale or mortgage, only, agricultural land in his khas possession not exceeding ten standard bighas in the aggregate, without any such permission."

8. In 1961, extensive amendments were made in section 9 of the Act. They are as follows:

"East Pakistan Ordinance No. XXVII of 1961 dated 7-8-61
The East Bengal State Acquisition and Tenancy (Fourth Amendment) Ordinance, 1961.
An Ordinance
further to amend the East Bengal State Acquisition and Tenancy Act, 1950.
Whereas it is expedient further to amend the East Bengal State Acquisition and Tenancy Act, 1950, for the purpose, and in the manner hereinafter appearing;
Now therefore in pursuance of the Presidential Proclamation of the 7th day of October, 1958, and having received the previous instructions of the President, the Governor is pleased, in exercise of all powers enabling him in that behalf, to make and promulgate the following Ordinance, namely:—
1. (1) This Ordinance may be called the East Bengal State Acquisition and Tenancy (Fourth Amendment) Ordinance, 1961.
2. The East Bengal State Acquisition and Tenancy Act, 1950 (thereinafter referred to as the said Act) shall be amended as hereinafter provided.
3. In section 9 of the said Act,-
(i) for sub-section (1), the following shall be substituted and shall be deemed always to have been substituted namely:—
(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publication of a notification under sub-section (1) of section 3, no rent receiver specified in such notification shall, except as provided in sub-section (1a), transfer his rights and interests any estate, taluk, tenure, holding or tenancy, to which such notification/elates, by private sale, gift, will, mortgage, lease or any contract or agreement, or transfer any land in his khas possession by any such means without the previous permission of a prescribed authority.
(1a) The rent-receiver referred to in sub-section (1) shall be entitled to transfer, by private sale or mortgage only, agricultural land or non-agricultural land of the classes retainable under sub-section (2) of section 20, in his khas possession, not exceeding ten standard bighas in the aggregate in either case without such permission, subject to such private sale or mortgage not contravening the provisions of any other law for the time being in force:
Provided that in the case of agricultural khas land, in calculating the permissible quantity of the standard bighas, any land transferred between 14^th December 1948 and the date of publication of the notification under sub-section 1 of section 3 shall also taken into account."
(ii) in sub-section (2), after the words "null and void" the words ''and the land so transferred shall be forfeited to the Provincial Government" shall inserted and
(iii) after sub-section 2 so amended, the following new sub-section shall be added, namely:—
"(3) Nothing contained in the foregoing sub-section shall render void and transfer which, prior to the coming into force of the East Bengal State Acquisition and Tenancy (Fourth Amendment) Ordinance, 1961, was not in contravention of any law for the time being in force and was legal and valid."

9. After section 9 of the said Act, the following new section shall be inserted, namely:—

''9A. Any rent-receiver, within six months from the coming into force of this provision, by an affidavit declare before a Revenue officer authorised by the Collector in this behalf, all the agricultural khas lands transferred by him since the 14th December, 1948 and all the non-agricultural khas lands of the classes retainable under sub-section 2 of section 20 transferred by him since the date of publication of the earliest notification under sub-section 1 of section 3 acquiring any of his interest, and if the sub-section 1 of section 3 acquiring any of his interest, and if the Revenue Officer, after making such enquiries as may be necessary, is satisfied about the truth of the declaration, he shall make an order declaring the transfer of only such quantity of land as do not exceed the permissible ten standard bighas under sub-section (1) of section 9 as valid and shall also specify the land to the extent of the quantity so declared valid:
Provided that such declaration shall not validate any transfer which is invalid under any other law for the time being in force."

From the unamended provisions of section 9 of the State Acquisition and Tenancy Act it appears that no rent-receiver whose name had appeared in the notification under section 3 (1) of the Act could transfer his rights and interests in any estate, taluk, tenure or any land in his khas possession which was covered by such notification without the permission of the prescribed authority, whether the transfer concerned was by private sale, gift, will, mortgage, lease. In sub-section (2) of section 9 it was further provided that if such transfer was made without complying with the aforesaid provisions shall be null and void. By subsequent amendments of the section in 1957 and 1958 by proviso added to section 9 of the Act any sue rent receiver was, however, allowed to transfer by private sale or mortgage only agricultural land in his khas possession no exceeding ten standard bighas. These amendments will be seen to have permitted the rent receiver to effect transfers subject to two limitations, namely (1) the transfer was restricted to only agricultural land; and (2) transfer to be effected only in the form of private sale or mortgage. Subject to these two limitations a rent receiver whose name appeared in the notification under section 3(1) of the State Acquisition and Tenancy Act could transfer without obtaining previous permission.

11. It appears that in 1961 by the Fourth Amendment of the State Acquisition and Tenancy Act, 1950 the provisions of section 9 of the Act were further amended, but while the previous amendment as referred to above did not give any retrospective effect to the amending provisions of section 9 of the Act, the amendment of 1961 intended to give retrospective effect to the amended provisions of section 9 by inserting the following words in section 3 (i):

"For sub-section (1), the following shall be substituted and shall be deemed always to have been so substituted".

12. The substituted sub-section (1) of section 9 has been quoted above which substantially reproduces the previous amendments under the amending Ordinance of 1957 and 1958. The modification concerned gave permission to transfer also "non-agricultural land of the classes retainable under sub-section (2) of section 20, in his khas possession." The position as it emerges from the amend meats previous to 1961 and those under the Ordinance of 1961 is that as Jogesh Chandra Das did not obtain or failed to obtain prior permission to transfer the suit land before executing the kabala Ext. A in favour of the defendant-respondent, such transfer was rendered null and void by the provisions of section 9 of the Act. The position, however, changed after the amendments effected in 1961 under the Ordinance of 1961, a rent receiver was allowed to transfer land, both agricultural and non-agricultural, in his khas possession with the previous permission of the prescribed authority. But for the express language employed in the amending Ordinance of 1961 giving retrospective effect to its provisions, the Ordinance would have been considered as prospective. To put it more explicitly, every statute, whether an Act or Ordinance is prospective, vide ''Colonial Sugar Mills Company Vs. Irving (1905) AC 369. It, however, such Act or Ordinance by express language or impliedly intends to give retrospective operation to its provisions, such effect must be given to them, either expressly or by implication. There would be no difficulty in giving retrospective effect to an Act if it expressly said so but the difficulty may, however, arise if no express words have been used giving retrospective operation to the provisions of an Act, whether such operation has been intended or not is to be gathered from reading the Act as a whole. It will be an arguable proposition when the intention of the legislature has not been expressed in clear language. One of the consequences of giving retrospective operation to the provisions of an Act is whether it has taken away any vested right under the previous state of law prior to giving retrospective operation to an Act already existing by subsequently amending it or a newly enacted Act which has been given retrospective effect beginning from any date prior to its enactment. There are innumerable decisions on this proposition regarding retrospectivity of statute.

12A. In the present case, it is found that the amending Ordinance of 1961 has declared that the provisions of Section 9 of the State Acquisition and Tenancy Act as amended by it "shall be substituted (the Ordinance actually substituted them) and declared further that they "shall be deemed always to have been so substituted". The words underlined (by me) would show that the amended provisions of section 9(1) of the State Acquisition and Tenancy Act are being given retrospective effect. Accordingly, the transfer made by Jogesh Chandra Das by kabala, Ext. A, which was null and void under the previous provisions of section 9(1) of the Act, appear to have become valid under the provisions amended by the Ordinance of 1961. If so, the subsequent court sales in 1960 and 1961 under which the plaintiff-appellant claims to have acquired right, title and interest in the suit land are of no effect because such right, title and interest had already passed under the previous transfer to the defendant-respondent.

13. The difficulty, however, arises due to the following provisions in the amending Ordinance which added a new sub-section (3) to section 9 of the State Acquisition and Tenancy Act. It provides as follows:

"Nothing contained in the foregoing-sub-section shall render void any transfer which, prior to the coming into force of the East Bengal State Acquisition and Tenancy ("Fourth Amendment) Ordinance, 1961, was not in contravention of any law for the time being in force and was legal and valid."

14. According to this provision, it appears that whatever retrospective effect was given to section 9(1) of the State Acquisition and Tenancy Act by the amending Ordinance of 1961 has been rendered ineffective by this sub-section in respect of the kind of transfer mentioned in this sub-section. For, it says that whatever is provided in sub-section (1) of section 9 under the amending Ordinance of 1961 will not reader void any transfer which was legal and valid before the amending Ordinance came into force.

15. It may, of course, be questioned when the amending Ordinance of 1961 came into force? It appears to me that the Ordinance came into force on the date it received the assent of the Governor that is on 7-8-61. Unless there is any express mention in the statute that it has to come into force from any date prior to its enactment, it comes to into force from the date received the assent of the authority concerned. Now, whether such a clause "shall be deemed always to have been so substituted" inserted in the Ordinance appearing to have given retrospective effect to a particular section of the Ordinance will be taken to mean that the entire Ordinance came into force on a date earlier than its enactment is extremely doubtful. I cannot conceive that such words will mean that the Ordinance as a whole come into force on a date earlier than its enactment.

16. It would, therefore, seem to me that since the date when the court sales took place though not earlier than that of Ext. A, in view of the provisions of section 9(1) of the State Acquisition and Tenancy Act the previous transfer to the defendant-respondent under Ext. A being void, the court sales must be considered as legally valid. Such court sales being legally valid which have been saved by the amended provisions of section 9(1) of the State Acquisition and Tenancy Act as quoted above cannot be null and void even though retrospective effect has been given to sub-section 9(1) by the amending Ordinance of 1961. In spite of the retrospective operation given to section 9(1), since sub-section (3) of the same Ordinance has clearly stated that not withstanding such provisions any transfer which was legal and valid at the time when such provisions were not in existence, it can hardly be said that the court sales became invalid by the amended provisions of section 9(1) of the State Acquisition and Tenancy Act It would, therefore, follow that the court sales on September 20, 1959 and February 16, 1961 under which the plaintiff appellant purchased the suit land being valid he is entitled to the declaration sought for by him in the suit. For the reasons, sated above, the appeal is allowed? There will be no order as to costs.

Badrul Haider Chowdhury J.

I have gone through the judgments written by the learned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the judgment of Shahabuddin Ahmed J.

Shahabuddin Ahmed J.

This is plaintiff’s appeal. The question involved in this appeal is whether the plaintiff's vested right in the suit property purchased in auction was taken away retrospectively by Ordinance No. XXVII of 1961.

18. Facts of the case, so far necessary for disposal of the appeal, are the following: Plaintiff's father filed Money Suit No.3 of 1958 in the Court of Subordinate Judge, Sylhet, against one Jagadish Chandra Das for realisation of his dues from a loan. In due course the suit was, decreed, and for realisation of the decretal amount, the property described in Schedule I of the plaint was purchased by the plaintiff on 20 September 1959. But as decretal amount was not fully satisfied by this auction-sale another land of the judgment-debtor, as described in schedule II, was also purchased in auction by plaintiff on 16 February 1961. But though symbolical possession was taken through court both the cases the plaintiff could not take actual possession of the properties from the defendant. The plaintiff subsequently came to know that the defendant, in collusion with the judgment-debtor, created an ante-dated sale-deed-Ext. A dated 30 January 1953 in respect of the same properties. Secondly, the transfer under Ext. (A) was also hit by section 9(1) of the East Bengal State Acquisition and Tenancy Act, (briefly, the State Acquisition Act) in that the transfer was made in violation of mandatory provision for obtaining prior permission from the prescribed authority. On these allegations he filed Title Suit No. 73 of 1961 in the 2nd Court of Subordinate Judge, Sylhet, for declaration of his title and recovery of khas possession in the suit land. The suit was contested by the defendant who contended that the sale-deed Ext. A was genuine and that the transfer there under was not hit by section 9(1) as the mandatory provision therein for prior permission for the transfer was repealed by East Pakistan Ordinance No. XXVII of 1961 with retrospective effect from 16 May 1951 that is the beginning of the State Acquisition Act. Both these contentions were accepted concurrently by the trial Court and the first Appellate Court namely, the High Court Division. The High Court Division further rejected the contention of the plaintiff that his vested interest in the properties created by the court sales on 20 September 1959 and 16 February 1961 was not taken away or affected by the subsequent Amendment of the law dated 7 August 1961, and held that the transfer of the suit land under the sale-deed dated 30-1-58 was valid and as such the plaintiff derived no title by subsequently purchasing in auction the same land. The suit was accordingly dismissed.

19. There is no dispute that the original judgment, debtor, Jagadish Chandra Das was a rent-receiver whose rent-receiving interests were acquired under section 3(1) of the State Acquisition Act. As such he was prohibited from transferring any interests without prior permission of the prescribed authority. But by the sale-deed Ext. A he transferred the suit land on 30 January 1958 without permission as required by sub section (1) of section 9 of the State Acquisition and Tenancy Act, which is quoted below:
"(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publication of a notification under subsection (1) of section 3, no rent-receiver specified in such notification shall except with the previous permission of a prescribed authority, transfer his rights and interests in any estate, taluk or tenure, to which such notification relates, by private sale, gift, will, mortgage, lease or any land in his khas possession by any such means."

20. This subsection was substituted by Ordinance No. XXVII of 1961 promulgated on 7 August 1961 which lifted the embargo on transfer of land, agricultural or non-agricultural, not exceeding ten bighas and this amendment was given effect from the date of coming into force of original section 9 of the State Acquisition and Tenancy Act that is 16-5-1951. This sub-section is quoted below:

"(1) Notwithstanding anything contained in any other law for the time being in force, on and from the date of publication of a notification under sub-section (1) of section 3, no rent-receiver specified in such notification shall, except as provided in sub-section (1a), transfer his rights and interests in any estate, taluk, tenure, holding or tenancy, to which such notification relates, by private sale, gift, will, mortgage, lease or any contract or agreement, or transfer any land in his khas possession by any such means without the previous permission of a prescribed authority.

(1a) The rent-receiver referred to in sub-section (1) shall be entitled to transfer, by private sale or mortgage sale, agricultural land or non-agricultural land of the classes retainable under sub-section (2) of section 20, in his khas possession, not exceeding ten standard bighas in the aggregate in either case without such permission, subject to such private sale or mortgage not contravening the provisions of any other law for the time being in force."

As to the date of effect of this amendment Article 3 of this Ordinance provides:

''In section 9 of the said Act—
(i) for sub-section (1), the following shall be substituted, and shall be deemed always to have been so substituted."

This amendment, though made in August 1961, is found to have been given effect from the commencement of the original section 9(1). The words, the section ''shall be deemed always to have been so substituted" are clear and unambiguous enough to show that this amendment has been given retrospective operation from long before the transfer under Ext.A was effected and also before the plaintiff's auction was held. In view of this provision of law as stood after the amendment the transfer of the suit land under the kabala-Ext. A-stood valid. This being the position the judgment-debtor had no saleable interest in the suite land to be transferred by court-sale.

21. But contention of Mr. Rafiq-ul-Huq, learned Advocate for the plaintiff-appellant, is that though the Amendment was apparently given retrospective effect, this Amendment did not affect or take away the plaintiff's vested right. The learned Judges of the High Court Division are found to have given due consideration to this question and held that the vested right of the plaintiff, if any, had been taken away by the Amendment in clear language expressed therein. The learned Judges observed:

"Words in the amended section are clear and unambiguous enough to give retrospective and retroactive operation of the law. By amendment of section 9(1) of the Act it was provided as if there was no provision restricting transfers of land not exceeding 10 standard bighas by a rent receiver in the enactment since its inception."

The learned Judges placed reliance on the cases of MIS. Haider Automobile Ltd. v. Pakistan and Province of West Pakistan v. Manzoor Quader (1970) 22 DLR (SC) 65, 1969 PLD SC 623 and Syedur Rahman V. Chief Election Commissioner, 17 DLR SC 23.

22. Mr. Rafiq-ul-Huq has strenuously argued that this amendment is not applicable to the transfer under the kabala Ext. (A) dated 30-1-58 and that the appellant's vested right could not be affected by the Amendment. In support of this contention he has sought reliance from "Colonial Sugar Mills Company Vs. Irving" (1905) AC 369 and “Delhi Cloth & General Mills Company vs. Income-tax Commissioner", AIR 1927 PC 242. The principle of law enunciated in the first mentioned case has been followed in the last mentioned one, AIR 1927 PC 242. It has been held there that "provisions touching existing rights are not ordinarily retrospective". Their Lordships observed:

"While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute comes into force, were final, are provisions which touch existing rights."

We do not find anything in this decision to disagree on. This decision does not say that a vested right or an existing right cannot be taken away by a law with retrospective effect. What has been emphasized therein is that provisions touching existing rights are not ordinarily retrospective. But if an enactment is specifically and clearly made retrospective in operation then this decision will not apply. If the language of a statute is not clear enough to show whether it has been given retrospective effect or where The intention to give retrospective effect is not found from the words used in a statute then and only then it's provision will be construed so as not to affect the vested or existing right. The decision of the Pakistan Supreme Court in the Province of West Pakistan vs. Manzoor Quader, PLR 1969 SC 623 on which the High Court Division placed reliance is found to be quite appropriate to this case.

23. The question raised there was whether the right of a retired Judge of a High Court to practice law, conferred by President's Order No. 21 of 1962, was taken away by a subsequent law, namely, the Ordinance 11 of 1964 which was given retrospective operation from 15 August 1947. Under the Constitution of the Islamic Republic of Pakistan, 1956, the practice of law by a retired Judge of the High Court in the same High Court or any Court or Tribunal subordinate to that High Court was prohibited. But the Retired Judges (Legal Practice) Order, P.O. No. 21 of 1962, gave a retired Judge of a High Court or any such Judge who resigned, right to practice law as a profession in the High Court. Taking advantage of this provision of law Mr. Monzoor Quader who had acted as Chief Justice of the West Pakistan High Court for about a year from October 1962 to September 1963 resigned an resumed practice in the High Court of West Pakistan. After about a year of his practice the Legal Practice (Disqualification Ordinance) No. 2 of 1964 was enacted which imposed total bar to practice law by retired Judge or a Judge who resigned in the High Court, and this Ordinance clearly stated that "a Judge" meant a person who acted as a Judge at any time since 15 August 1947. The question that arose was whether Mr. Monzoor Quader who started practice after his resignation and got vested right to practice under P.O. No. 21 of 1962 stood deprived of his right to practice in view of the subsequent Ordinance No. 2 of 1964. His contention was that his vested right was not affected or taken away by the Ordinance, and this contention was upheld by the West Pakistan High Court. But on appeal by the Government, this contention was rejected by the Supreme Court which held that his vested right was taken away "in clear and express words" used in the Ordinance of 1964 which disqualified from practice any person who acted as a Judge of the High Court "at any time since 15 August 1947". It was held by the Supreme Court of Pakistan that the legislature which is competent to make a law has full and plenary power to legislate retrospectively and retroactively. Hamoodur Rahman CJ who delivered the judgment observed:

"There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take a way the vested right yet the Courts must hold that such legislation is ineffective or strike down the legislation on the ground that it has retrospectively taken away a vested right."

24. Law as to "retrospectively" has been elucidated in Maxwell’s Interpretation of Statutes (12th edition) page 215 quoting from English decisions at length and also in Craies on Statute Law. The question of vested interests arises upon the presumption that the legislature does not intend what is unjust. "It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the act or arises by necessary and distinct implication". "If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.” It, however the language or the dominant intention at the enactment so demands, the Act must be construed so as to have a retrospective operation, for the rule against retrospective effect of statutes is not a rigid or inflexible rule but is not to be applied always in the light of the language of the statute and the subject-matter with which the statute is dealing".

25. In the words of Craies on Statute Law, a statute is retrospective "which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes new duty or attaches a new disability in respect to transactions or considerations already past''. It is therefore an established rule of construction that a law may be enacted taking away a vested right with retrospective effect in express language or by necessary intendment.

26. The question whether Section 9(1) as amended by Ordinance No. 27 of 1961 of the State Acquisition and Tenancy Act was retrospective in effect came up for consideration before the East Pakistan High Court in the case of Tarapada Ghose v. Marimnessa Bibi, 19 DLR 711 and Morshed CJ held that the legislature by express language had given effect to the Amendment from the date of the original Act. In the instant case contention of Mr. Rafiq-ul-Huq is that even if the Amendment is retrospective in operation, it will not affect the appellant's vested right in that when the vested right was created by court-sales in September 1959 and February 1961, the transfer under the kabala Ext. A was invalid being hit by law as it was then. In this contention is upheld the Amendment will be reduced to an enactment only prospective in operation. In that case the expression it "shall be deemed always to have been so substituted" will be useless, meaningless and totally unnecessary. A cardinal principle of construction is that it must be presumed that the legislature does not use any word unnecessarily or without any meaning or purpose. Of course, on the ground of equity and justice the appellant's vested right by court-sale should not have been affected by a subsequent enactment. But in view of express language of the amending statute the Court cannot give a different interpretation on the ground of equity and justice. In view of this express provision of the Amendment the transfer under the kabala Ext. A dated 30 January 1958 stood valid and as such the plaintiff by auction purchase of the same property derived no title. The suit is found to have been rightly dismissed.

27. In the result, the appeal is dismissed without any order as to cost.

Chowdhury ATM Masud J.

I have had the opportunity to go through the judgments proposed to be delivered by the learned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the judgment of Shahabuddin Ahmed J.

Syed Md. Mohsen Ali J.

I have gone through the judgments proposed to be delivered by the learned Chief Justice and my learned brother Shahabuddin Ahmed J. I concur with the decision of Shahabuddin Ahmed J.

ORDER OF THE COURT

By the majority decision, the appeal is dismissed without any order as to costs.

Ed.

Shafiul Azam Dafader and others Vs. The State [4 LNJ AD (2015) 230]

Case No: Criminal Appeal Nos. 25, 26, 27, 30, 31, 32, 33 and 35 of 2012 AND Jail Petition No. 20 of 2012

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Mohammad Ali,Mr. Abdul Motin Khashru,Mr. Md. Sarwar Ahmed,Mr. Mansurul Haque Chowdhury,Mr. Khondaker Diliruzzaman,,

Citation: 4 LNJ AD (2015) 230

Case Year: 2015

Appellant: Shafiul Azam Dafader and others

Respondent: The State

Subject: FIR, Partisan Witnesses, Commutation of Sentence,

Delivery Date: 2015-04-07

APPELLATE DIVISION
(CRIMINAL)

Surendra Kumar Sinha, CJ.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Hasan Foez Siddique, J.

Judgment on
07.04.2015

Shafiul Azam Dafader
. . . Appellant
(In Crl. A. No.25 of 2012)
Md. Ayub Ali Chairman and another . . . Appellants
(In Crl. A. No.26 of 2012)
Farooque Gazi . . . Appellant
(In Crl. A. No.27 of 2012)
Showkat Ali Mollah
. . . Appellant
(In Crl. A. No.30 of 2012)
Hashem . . . Appellant
(In Crl. A. No.31 of 2012)
Mannan Shah . . . Appellant
(In Crl. A. No.32 of 2012)
Jaynal Mukter @ Jaynul Abedin
. . . Appellant
(In Crl. A. No.33 of 2012)
A. Salam @ Ketu Salam @ Kata . . . Appellant
(In Crl. A. No.35 of 2012)

Md. Ayub Ali Chairman
. . . Petitioner
(In Jail. P. No.20 of 2012)
=Versus=
The State . . . Respondents
(In all the appeals)

Code of Criminal Procedure (V of 1898)
Section 154
Mere delay in lodging the FIR should not be a ground for disbelieving the prosecution case if that delay occurred for any reasonable cause. Considering the facts and circumstances of a particular case the court is to decide whether the delay in lodging the F.I.R. is fatal and whether this delay in lodging the F.I.R. makes the prosecution case doubtfull. Considering all these facts and circumstances both the trial court and the High Court Division found that the delay of 5 days in lodging the F.I.R. was not fatal to create any doubt about the truth of the prosecution case. Considering the facts and circumstances we also find that in this case the delay in lodging the F.I.R. cannot be a ground for disbelieving the truth of the prosecution case. . . . (80 and 81)

Code of Criminal Procedure (V of 1898)
Section 154
There is no bar in filing a second F.I.R. if the first information about any occurrence given to the police station is vague and indefinite and does not disclose the actual offence committed in that occurrence. In the present case the GDE which was made in the concerned police station at the time when the occurrence was still going on does not disclose the offences committed in that occurrence and hence the subsequent F.I.R. stating the offences committed in that occurrence in details is the actual F.I.R. and there is no legal bar in accepting this F.I.R. in the stated facts and circumstances. . . .(82)

Code of Criminal Procedure (V of 1898)
Section 161
The delay in examining the witnesses under section 161 of the Code of Criminal Procedure by the investigating officer can be any reason for discarding their evidence before court. …(82)

Code of Criminal Procedure (V of 1898)
Section 154
Evidence Act (I of 1872)
Section 134
There is no law requiring examination of all the F.I.R. named and charge sheeted witnesses before court. Rather it is well established by judicial pronouncements that conviction of accused can safely be based on the evidence of one witness only if his evidence is full, complete and selfcontained and believable. The prosecution is not bound at all to examine all the witnesses mentioned in the F.I.R. or in the charge sheet. . . .(84)

Code of Criminal Procedure (V of 1898)
Section 154
Evidence Act (I of 1872)
Section 157
In this case the informant, who lodged the F.I.R. was not the eye-witness to the occurrence. Hearing from others she lodged the F.I.R. So it was very natural that in the F.I.R. all the details of the occurrence could not be stated properly and correctly. The evidence of P.Ws.2 to 8-the eye-witnesses to the occurrence are consistent. In the circumstances the discripancy between the F.I.R. story and the evidence of these eye witnesses cannot be any reason for disbelieving the evidence of these eye-witnesses in this particular case. . . . (85).

Evidence Act (I of 1872)
Sections 3, 5 and 8
It is true that the evidence of the interested and partisan witnesses must be scrutinized and considered cautiously before it is accepted. But the evidence of the interested and partisan witnesses should not be discarded for the reason only that they are partisan and interested witnesses if their credibility is not shaken by the defence. ...(86)

Evidence Act (I of 1872)
Section 3
The evidence of partisan witnesses need not always be discarded only for the reason of their relationship, when their evidence are found to be reliable that can be basis for convicting the accused. . . . (86)

Code of Criminal Procedure (V of 1898)
Section 376
The learned Advocate for the condemned prisoner has made submissions to the effect also that this accused-appellant Aiyub Ali has been detaining in the condemned cell for long 10 years with mental agony of death and now this Division, for the ends of justice, may show some mercy to him and may commute his sentence of death to a sentence of life imprisonment. But considering the very offence of cruel murders of as many as 3 persons committed by this accused-appellant Aiyub Ali we do not think that he can be shown any mercy at all. . . . (94)

For the Appellant: Mr. Abdul Motin Khashru, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Appellant: Mrs. Sufia Khatun, Advocate-on-Record.
For the Appellant: Mr. Mohammad Ali, Advocate-on-Record.
For the Appellant: Mr. Md. Sarwar Ahmed, Advocate instructed by Mr. Mohammad Ali, Advocate-on-Record.
For the Appellant: Mr. Mansurul Haque Chowdhury, Senior Advocate instructed by Mr. Mohammad Ali and Mrs. Sufia Khatun, Advocates-on-Record.
For the Petitioner: Not represented.
For the Respondents: Mr. Khondaker Diliruzzaman, Deputy Attorney General instructed by Mrs. Madhumaloti Chowdhury Barua, Mr. Syed Mahbubar Rahman and Mr. Md. Shamsul Alam, Advocates-on-Record.
For the Respondent: Not represented.

Criminal Appeal Nos. 25, 26, 27, 30, 31, 32, 33 and 35 of 2012 AND Jail Petition No. 20 of 2012

JUDGMENT

Nazmun Ara Sultana, J.

All these 8 criminal appeals and the jail petition have arisen out of the judgment and order passed by the High Court Division on 17.01.2012 and 18.01.2012 disposing of several criminal appeals, jail appeals and criminal miscellaneous cases together filed against the judgment and order dated 12.07.2005 passed in Druto Bichar Tribunal Case No.6 of 2004 of Druto Bichar Tribunal No.1, Dhaka.

The prosecution case, in short, is that on 07.07.2001 at about 8.00 A.M. the deceased Monwar Ali, formar chairman of Bagra Union and former president of Bagra Union B.N.P. and present vice president of Sreenagar Thana B.N.P. along with his brothers Md. Anwar Ali and Badsha and nephew Salauddin started for Bagra Bazar for attending a meeting of B.N.P. there. They were going through Al-Amin Madrashah road for their convenience. By the side of that road the house, of accused Aiyub Ali, sitting chairman of Bagra Union was situated. While Monawar Ali along with his brothers and nephew were going through that road, all on a sudden, the accused persons, namely, Aiyub Ali chairman, Nazir, Mizan and Badshah, sons of late Swarup Ali, Sabuj Ali, Kuti Chan, Mahfuz, Mintoo, Abdul Mannan Shah, Faruq Gazi, Salam, Mithu, Alek member, son of late Hossain, Selim, Billal, Ripon, Piyar Ali, Jasim, Muluk, Alek, son of unknown, Shafiul Azam, Syed Chowdhury, Ayesha Khatun, wife of Abu Jaher, Rubel, Maram Ali, Abdur Rob Bepari @ Roba, Keru Fakir member, Adalat Sikder, Jainal Talukder, Aynal, Haroon, Salam Sikder, Shamsuddin, Aminur Rahman, Jewel, Abdul Mannan @ Mobile Mannan, Kuddus Bepari, Akram Ali Bepari, Rouf, Faran Sheikh, Titan Khan, Hossain member, Malek Bepari, Shah Alam Bepari, Muktar Hossain, Sekander, Ummat Ali, Mahfuz, son of Salam Sikder, Amin, Israfil Bepari, Abbas, Hashem, son of Hasen Gazi, Faraj Ali, Motaleb Fakir, Ketu Salam @ Kota Salam, Abdul Gazi and many unknown persons being armed with weapons like gun, ‘ramdao’, ‘chapati’, iron rod, chinese axe etc. attacked them. Though the deceased Monwar Ali and his associates were carrying two licensed guns and one pistol they along with Hashem, being chased, ran towards the house of Srijon Bepari and entered into that house and started shouting “save, save”. Hearing their alarm, the neighbouring people gathered there. In the meantime, the accused Aiyub Ali and the aforesaid accused persons started shouting saying that Monwar Ali chairman whould be killed. The accused Aiyub Ali chairman started firing targeting the house of Srijan Bepari. He and the aforesaid accused persons fired targeting the public also so that they could not come forward. Being frightened the public went away far. Deceased Manwar Ali and his associates requested Srijan Bepari to give them shelter in his house. Haji Srijan Bepari, being kind enough, gave them shelter in his two storied wooden house and for that the accused persons started looting that house. Finding no other way the deceased Monwar Ali started blank firing from his brother’s licensed gun and pistol and instructed his relatives over mobile phone to inform the police station. In the meantime, accused Kuti Chand, Nizam, Nazim, Sabuj Ali, Hashem and Alauddin broke open the door of that house of Srijan Bepari and entered into that house and tried to drag away Badsha. Hashem, who also took shelter in that house along with Monwar Ali and his assocaites, was trying to drag Badsha into the house. The accused Faruq Gazi then shot Hashem with a gun and as a result Hashem died. The other accused persons from out side the house fired many shots one of which hit Badsha causing bleeding injury. At that time Alauddin from the accused’s group, who entered into that house to drag out the victims, also received a bullet injury and died.

That the reason for carrying guns and pistol by the deceased Monwar Ali and his brothers is that the accused Aiyub Ali chairman and his family members are their enemy. 26/27 years back the accused Aiyub Ali and his brothers took away the father of the deceased Monwar Ali from a tea-stall of Bagrabazar and cut his body into pieces and threw the pieces into the river Padma. The pieces of the body could not be found. Since thereafter, they were threatening the deceased Monwar Ali and his family members also and for this reason they used to carry their licensed guns and pistol while they had to go to Bagrabazar. That the accused A. Rob @ Roba, son of late Rashid Bepari informed the accused Aiyub Ali about the deceased Monwar Ali’s going to Bagrabazar on 07.07.2001. Roba is the terrorist of the accused Aiyub Ali’s group who was in the jail several times for his terrorist activities. Being informed by Roba the accused Aiyub Ali took preparation about which the deceased Monwar Ali was ignorant.

While the above stated occurrence was going on Sreenagar Thana police went to the place of occurrence at about 1.00 P.M. and sent message to different police stations. The Deputy Commissioner and the police super of Munshiganj and the T.N.O. from Sreenagar went to the place of occurrence from 2.00 P.M. to 5.00 P.M. The District Magistrate, the police super and the O.C., Sreenagar P.S. could not bring the accused persons under control. The deceased Monwar Ali and his companions were in confinement at the 1st floor of Srijon Bepari’s wooden house from 9.00 A.M. At about 6.00 P.M. the District Magistrate and the Police Administration announced through a hand mike addressing Monwar Ali to come throwing down their weapons and to surrender. They also announced assuring them that if they surrendered to them they would save them. Hearing this, the deceased Monwar Ali along with others came down from the 1st floor of the said house. The police then arrested them out of suspicion and handcuffed them. Forthwith, the accused Aiyub Ali and the other accused persons snatched the deceased Monwar Ali and his companions away from the police custody. The accused Aiyub Ali then dealt a sharp weapon blow on the back of the head of deceased Monwar Ali in presence of police. At the same time, the other accused persons, namely, Nazir, Mizan, Nizam, Badsha, Sabuj, Kuti Chan, Mahfuz, Mintoo gave indiscriminate blows with sharp cutting weapons on the different parts of the body of the deceased Monwar Ali. The accused Abdul Mannan Shah, son of Malek Shah, Faruq Gazi, Salam, Mintoo, Alek member, son of Hossain, Selim, Billal, Ripon, Piyar Ali, Jasim, Muluk, Alek, son of unknown, Safiul Azam, Syed Chowdhury, Ayesha Khatun, wife of Abu Taher started dealing blows on the body of the deceased Monwar Ali with sharp cutting weapons. The accused Jainal son of late Beshai Talukder, Aynal son of Joynal Talukder, Haroon, Salam Sikder, Samsuddin, Sekander, Ummet Ali, Mahfuz son of Salam Sikder, Rubel, Keru Fakir member dealt stick and iron rod blows to the brothers of the deceased Monwar Ali. The accused Aminur Rahman, Jewel, Abdul Mannan started dealing blows on the body of Salauddin, the nephew of the deceased Monwar Ali with sharp cutting weapons. The accused Kamal, Abbas, Hashim, Kuddus Bepari, Akram Ali Bepari, Rouf, Fazal, Sheikh, Titan Khan, Hasen member, Malek Bepari, Sahah Alam Bepari started firing all around so that no body come forward to rescue them. The accused Mukter Hossain Bepari, Motaleb Gazi, Idris, Faraj Ali, Motaleb Fakir, Hari Das, Ketu Salam @ Kota Salam, Abdul Awal Gazi, Gaffar assisted the other accused persons. At that time, due to indiscriminate firing of accused persons, one passerby, namely, Ismail Gazi an old man, received a bullet injury on his dead and died. The deceased Monwar Ali and Badsha, due to the aforesaid blows, died at the place of occurrence. Thereafter, police took the dead bodies of Monwar Ali, Badsha, Hashem, Alauddin and Ismail Gazi to the police station by police van. As Anwar Ali and Salauddin-the elder brother and the nephew of the deceased Monwar Ali were alive they were sent to the hospital.

At about 7.00 P.M. on the date of occurrence the informant-the wife of deceased Monwar Ali heard about the death of her husband from the witnesses and lost sense. At about 2.00/2.30 P.M. the dead bodies of the deceased Monwar Ali and Badsha were sent to the hospital for autopsy. After completion of autopsy their bodies were brought to the residence of the informant and at that time also the informant lost her sense once again. Injured Md. Anwar Ali and Salauddin were in hospital and other relatives were living abroad. The cause of delay in lodging the First Information Report was that the informant lost balance of her mind because of the death of her husband.
On 12.07.2001 Meherun Nessa-the wife of deceased Manwar Ali lodged the First Information Report with Sreenagar Police Station on the basis of which Sreenagar P.S. Case No.10(07)2001 and corresponding G.R. No.179 of 2001 were started. The police took up investigation of the case and after completion of investigation, finding prima facie case, submitted charge sheet No.64 dated 30.11.2003 against 108 accused persons under sections 148/149/332/353/326/ 307/302/109 along with some other sections of the Penal Code. The case was ultimately sent to the Druto Bichar Tribunal No.1, Dhaka for trial. In this tribunal the case was registered as Druto Bichar Tribunal Case No.6 of 2004. Charges under sections 148/149/332/353/ 326/307 /302/ 109 of the Penal Code were framed against the accused persons. The charge so framed were read over and explained to the accused persons who faced trial. The present accused persons pleaded not guilty and claimed to be tried. The other accused persons being absconding, the charge could not be read over and explained to them.

The prosecution examined 23 witnesses to prove its case while the defence examined none.

The present accused persons, namely, Nannoo Sikder, Hossain member @ Sheikh Ali Hossain, Shamsuddin Bepari, Badsha, Morom Ali, Tition Khan, Md. Shafiul Azam @ Shafiullah, Md. Mannan Shah, Hashem, Md. Mahfuzur Rahman, Mithu, A. Salam @ Ketu Salam, Ayesha Begum and Md. Aiyub Ali chairman were examined under section 342 of the Code of Criminal Procedure and this time also they pleaded innocence.

On consideration of the evidence adduced by the prosecution and the facts and circumstances the learned trial Judge, by his judgment and order dated 12.07.2005 convicted the accused Aiyub Ali, Salam @ Ketu Salam, Mannan Shah and Faruq Gazi (absconding) under sections 302/149 of the Penal Code for killing Hashem and sentenced them to death.

The learned trial Judge convicted the accused Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding) and Nizam (absconding) also under sections 302/149 of the Penal Code for killing Hashem and sentenced them to imprisonment for life and to pay a fine of Tk.50,000/-(fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Aiyub Ali, Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding), Nizam (absconding), Mahfuz son of Aiyub Ali, Ripon (absconding), Mannan Shah, Shafiul Azam Dafader, Hashem, Faruq Gazi (absconding), Abdul Mannan @ Mobile Mannan (absconding), Javed Ali (absconding) and Mizan (absconding) under sections 302/109 of the Penal Code for killing Monwar Ali and Badsha and sentenced all of them to death.

The learned trial Judge convicted the accused Salam Sikder (absconding), Mahfuz, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Molla (absconding), Jainal Mokter @ Jainal Abedin, son of Adbur Rahman (absconding), Badsha, Mithu, A. Rob @ Roba and Ayesha Begum also under sections 302/109 of the Penal Code for killing Monwar Ali and Badsha and sentenced them to imprisonment for life and to pay a fine of Tk.50,000/- (fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Salam Sikder (absconding), Mahfuz, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Molla (absconding), Jainal Mokter @ Jainal Abedin, son of Adbur Rahman (absconding), Badsha, Mithu and A. Rob @ Roba under sections 307/109 of the Penal Code for making attempt to kill victims Anwar Ali and Salauddin and sentenced each of them to imprisonment for life and to pay a fine of Tk.50,000/- (fifty thousand) each, in default, to suffer rigorous imprisonment for 1(one) year more.

The learned trial Judge convicted the accused Shamsuddin (absconding), Alek (absconding), Syed Chowdhury (absconding), Ratan Chaktabarty (absconding), Rafique Sikder (absconding), Masood, son of Sheikh Shahjahan (absconding), Piyar Ali (absconding), Jasim (absconding), Titon Khan, Morom Ali, Nannoo Shikder and Hossain member under sections 148 of the Penal Code and sentenced each of them to suffer 2(two) years rigorous imprisonment and to pay a fine of Tk.2,000/- (two thousand) each, in default, to suffer rigorous imprisonment for 3(three) months more.

The learned trial Judge acquitted the other accused persons finding that the allegations made against them were not proved beyond reasonable doubt.

On a reference made by the learned Judge, Druto Bichar Tribunal No.1, Dhaka to the High Court Division for confirmation of death sentences imposed on the accused persons as aforesaid the Death Reference No.110 of 2005 was registered.

Against the judgment and order of conviction and sentence passed by the trial court as aforesaid the convicted-accused persons, namely, Shafiul Azam Dafader, Mannan Shah and Abdus Salam @ Ketu Salam preferred Criminal Appeal No.3451 of 2005, the convicted-accused Md. Aiyub Ali chairman, Mahfuzur Rahman @ Mahfuz son of Aiyub Ali, Badsha, A. Rob Bepari @ Roba, Ayesha Begum @ Ayesha Khatun, Shamsuddin, Titon Khan @ Titan Khan and Morom Ali preferred Criminal Appeal No.3581 of 2005, the convicted-accused Nannoo Sikder and Rafique Sikder preferred Criminal Appeal No.3157 of 2005, the convicted-accused Md. Hashem preferred Criminal Appeal No.3354 of 2005, the convicted-accused Hossain member @ Sheikh Ali preferred Criminal Appeal No.3558 of 2005, the convicted-accused Mithu preferred Criminal Appeal No.3413 of 2005, the convicted-accused A. Salam @ Ketu Salam preferred Jail Appeal No.762 of 2005, the convicted-accused Shafiul Azam preferred Jail Appeal No.763 of 2005, the convicted-accused Hashem preferred Jail Appeal No.764 of 2005, the convicted-accused Md. Mahfuzur Rahman preferred Jail Appeal No.765 of 2005, the convicted-accused Md. Mannan Shah preferred Jail Appeal No.766 of 2005, the convicted-accused Aiyub Ali chairman preferred Jail Appeal No.767 of 2005, the convicted-accused Faruq Gazi preferred Jail Appeal No.92 of 2006, the convicted-accused Md. Jainal Mokter @ Jainal Abedin filed Criminal Miscellaneous Case No.12454 of 2008 under section 561A of the Code of Criminal Procedure, the convicted-accused Faruq Gazi filed Criminal Miscellaneous Case No.7729 of 2006 under section 561A of the Code of Criminal Procedure and the convicted-accused Shawkat Ali Molla filed Criminal Miscellaneous Case No.32472 of 2011 under section 561A of the Code of Criminal Procedure.

A Division Bench of the High Court Division heard the above mentioned death reference along with all the above stated criminal appeals, jail appeals and criminal miscellaneous cases and by the impugned judgment and order dated 17.01.2012 and 18.01.2012 disposed of the death reference and all those criminal appeals, jail appeals and the criminal miscellaneous cases together.

The High Court Division accepted the death reference in part. The High Court Division confirmed the death sentence awarded to the condemned prisoners Aiyub Ali chairman, Kuti Chand, Nazir Ali and Nizam under sections 302/109 of the Penal Code for killing deceased Monwar Ali.

The High Court Division commutted the death sentence awarded to accused Ripon (absconding), Hashem, Abdul Mannan @ Mobile Mannan (absconding), Mannan Shah, Faruq Gazi, Sabuj Ali (absconding), Shafiul Azam Dafader, Mahfuz, son of Aiyub Ali, Mizan (absconding) and Javed (absconding) under sections 302/109 of the Penal Code to a sentence of imprisonment for life with fine of Tk.10,000/- (ten thousand), in default, to suffer rigorous imprisonment for another 6(six) months for killing Monwar Ali.

The High Court Division upheld the sentence of imprisonment for life imposed on the accused Jainal Mokter @ Jainal Abedin and Shawkat Ali Mollah under sections 302/109 of the Penal Code for killing deceased Monwar Ali.
The High Court Division acquitted the accused Salam Sikder, Mahfuz, son of Salam Sikder, Mintoo, Badsha, Mithu, A. Rob Bepari @ Roba and Ayesha Begum from the charge under sections 302/109 of the Penal Code for killing deceased Manwar Ali.

The High Court Division confirmed the conviction of accused Aiyub Ali, Faruq Gazi, Nizam (absconding), Nazir (absconding), Kuti Chand (absconding), Sabuj Ali (absconding), Mannan Shah and Ketu Salam under sections 302/149 of the Penal Code for killing deceased Hashem Kazi but upheld the death sentence of accused Faruq Gazi only and commuted the death sentence of accused Aiyub Ali, Salam @ Ketu Salam and Mannan Shah to imprisonment for life and to pay a fine of Tk.10,000/- (ten thousand) each, in default, to suffer rigorous imprisonment for another 3(three) months. The High Court Division affirmed the sentence of life imprisonment awarded to the accused Kuti Chand (absconding), Sabuj Ali (absconding), Nazir (absconding) and Nizam (absconding) for killing Hashem Kazi.

The High Court Division commuted the death sentence awarded to accused Aiyub Ali, Sabuj Ali (absconding), Mahfuz, son of Aiyub Ali, Ripon (absconding), Shafiul Azam Dafader, Javed Ali (absconding), Faruq Gazi, Mannan Shah and Ketu Salam (absconding) under sections 302/109 of the Penal Code for killing Badsha to a sentence of imprisonment for life with fine of Tk.10,000/-(ten thousand), in default, to suffer rigorous imprisonment for 3(three) months.

The High Court Division set aside the sentence of imprisonment for life imposed on accused Salam Sikder (absconding), Mahfuj, son of Salam Sikder (absconding), Mintoo (absconding), Shawkat Ali Mollah, Jainal Mokter @ Jainal Abedin, son of Abdur Rahman, Badsha, Mithu, A. Rob Bepari @ Roba and Ayesha Begum under sections 302/109 of the Penal Code for killing Badsha and acquitted them from this charge.

The High Court Division found accused Mafiz @ Mahfuz, son of Salam Sikder, Ripon, Hashem, Sabuj Ali, Mobile Mannan (absconding) and Shafiul Azam Dafader guilty under sections 307/109 of the Penal code for making attempt to commit murder of Md. Anwar Ali and Salauddin and sentenced them to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Tk.10,000/- (ten thousand) each, in default, to suffer rigorous imprisonment for another 6(six) months.

The High Court Division set aside the conviction and sentence under sections 307/109 of the Penal Code imposed on the accused Salam Sikder (absconding), Mintoo, Shawkat Ali Mollah, Jainal Mokter @ Jainal Abedin, Badsha, Mithu, A. Rob Bepari @ Roba for making attempt to commit murder of Md. Anwar Ali and Salauddin and acquitted them from the said charge.

The High Court Division confirmed the conviction and sentence under section 148 of the Penal Code awarded to the accused Piyar Ali (absconding) and Jasim (absconding) but set aside the conviction and sentence under section 148 of the Penal Code awarded to accused Shamsuddin (absconding), Alek (absconding), Syed Chowdhury (absconding), Ratan Chakrabarty (absconding), Rafique Shikder (absconding), Masood, son of Sheikh Shahajahan (absconding), Tition Khan, Morom Ali, Nannu Sikder and Hossain member and acquitted them from the said charge.

The High Court Division thus allowed Criminal Appeal No.3581 of 2005 filed by condemned prisoner Md. Aiyub Ali chairman and the convicted-accused Mahfuzur Rahman @ Mahfuz, Badsha, A. Rob Bepari @ Roba, Ayesha Begum @ Ayesha Khatun, Shamsuddin, Titon Kha @ Titan Khan and Moram Ali in part.

The High Court Division dismissed Criminal Appeal No.3541 of 2005 filed by the accused Shafiul Azam Dafader, Mannan Shah and Abdus Salam @ Ketu Salam.
The High Court Division allowed Criminal Appeal No.3157 of 2005 filed by the accused Nannoo Sikder and Rafiq Sikder.
The High Court Division dismissed Criminal Appeal No.3354 of 2005 preferred by convicted-accused Md. Hashem.
The High Court Division allowed Criminal Appeal No.3558 of 2005 filed by the convicted-accused Hossain member.
The High Court Division allowed Criminal Appeal No.3413 of 2005 filed by the convicted-accused Mithu.
The Jail Appeal Nos.762 of 2005, 763 of 2005 and 764 of 2005 preferred by convicted-accused A. Salam @ Ketu Salam, Shafiul Azam @ Shafiullah and Hashem were thus dismissed.
The Jail Appeal No.765 of 2005 filed by convicted-accused Md. Mahfuzur Rahman, son of Aiyub Ali was dismissed.
The Jail Appeal Nos.766 of 2005, 767 of 2005 and 92 of 2006 preferred by convicted-accused Mannan Shah, condemned-prisoner Md. Aiyub Ali chairman and condemned-prisoner Faruq Gazi were dismissed.

The rule in Criminal Miscellaneous Case Nos.12454 of 2008, 7729 of 2006 and 32472 of 2010 filed by the convicted-accused persons Md. Jainal Abedin Mokter @ Jainal Abedin, Faruq Gazi and Shawkat Ali Mollah were discharged.

Being aggrieved by this judgment and order of the High Court division the convicted-accused Shafiul Azam Dafader has preferred the above mentioned Criminal Appeal No.25 of 2012, the condemned-prisoner Md. Aiyub Ali chairman and convicted-accused Md. Mahfuzur Rahman, son of Aiyub Ali have preferred Criminal Appeal No.26 of 2013, the condemned-prisoner Faruq Gazi has preferred Criminal Appeal No.27 of 2012, the convicted-accused Showkat Ali Mollah has preferred Criminal Appeal No.30 of 2012, the convicted-accused Hashem has preferred Criminal Appeal No.31 of 2012, the convicted-accused Mannan Shah has preferred Criminal Appeal No.32 of 2012, the convicted-accused Jaynal Mukter @ Jaynul Abedin preferred Criminal Appeal No.33 of 2012, the convicted-accused A. Salam @ Ketu Salam @ Kota Salam has preferred Criminal Appeal No.35 of 2012. The condemned-prisoner Aiyub Ali has filed Jail Petition No.20 of 2012 also against his conviction and sentence.

At the time of hearing of appeals it has been reported that the accused-appellant Jaynal Mukter @ Jaynul Abedin has died in the meantime. So the Criminal Appeal No.33 of 2012 preferred by this accused Jaynal Mukter @ Jaynul Abedin stands abated.

All the other 7 criminal appeals and jail petition have been heard together and are being disposed of by this single judgment.

Mr. Abdul Motin Khashru, the learned Advocate has appeared before us for the accused-appellant Showkat Ali Mollah of Criminal Appeal No.30 of 2012, accused-appellant Mannan Shah of Criminal Appeal No.32 of 2012 and accused-appellant Hashem of Criminal Appeal No.31 of 2012. Mr. Mansural Haque Chowdhury, the learned Advocate has appeared for the condemned-prisoner-appellant Faruq Gazi of Criminal Appeal No.27 of 2012 and accused-appellant A. Salam @ Ketu Salam of Criminal Appeal No.35 of 2012. Mr. Md. Sarwar Ahmed, the learned Advocate has appeared for the condemned-prisoner-appellant Md. Aiyub Ali chairman and the accused-appellant Md. Mahfuzur Rahman @ Mahfuz S/O Aiyub Ali of Criminal Appeal No.26 of 2012. Mr. Mohammad Ali, the learned Advocate-on-Record has appeared for the accused-appellant Shafiul Azam Dafader of Criminal Appeal No.25 of 2012.

Mr. Khandaker Diliruzzaman, the learned Deputy Attorney General has appeared for the State-respondent in all the criminal appeals.
We have heard the learned Advocates for the accused-appellants and also the learned Deputy Attorney General for the State-respondents at length.

Mr. Md. Sarwar Ahmed, the learned Advocate appearing for the accused-appellant Md. Aiyub Ali and Mahfooz s/o Aiyub Ali has made argument to the effect that the accused Aiyub Ali and his son accused Mahfooz have been entangled in this case falsely out of enmity and grudge, that in this case it has been sufficiently proved from the evidence adduced by the prosecution that there was long standing enmity in between this accused-appellant Aiyub Ali and his family members and the deceased Monwar Ali and his family members on different issues including political issue. The learned Advocate has argued that all the alleged eye witnesses to the alleged occurrence, who have deposed before the court as P.Ws.2 to 8 and also the informant, being close relatives and partymen of deceased Monwar Ali, have deposed before court implicating these accused-appellants falsely out of grudge. The learned Advocate has argued that the trial court and also the High Court Division did not consider this aspect at all and consequently they have committed wrong and injustice in finding these accused-appellants guilty relying on the evidence of these interested and partisan witnesses only. The learned Advocate has argued also that the evidence which these witnesses have given before the court are also contradictory on material points and that on this count also the evidence of these prosecution witnesses are not reliable at all. The learned Advocate for the accused-appellants has made argument to the effect also that in the FIR as many as 28 persons have been named as eye witnesses but out of these 28 eye witnesses only 4 witnesses, namely, P.Ws.2, 3, 4 and 7 have been examined by the prosecution before court but no explanation whatsoever, has been given from the side of the prosecution for withholding the other FIR named eye witnesses. The learned Advocate has argued that the withholding of so many FIR named eye witnesses by the prosecution also reasonably creates doubt about the prosecution case. The learned Advocate has pointed out also that there are material discrepancies in between the FIR and the evidence of the witnesses before court and has argued that these discrepancies between the FIR story and the evidence adduced before court very reasonably makes the prosecution case false. The learned Advocate has submitted that the evidence adduced before the court deviating from the FIR story should be taken into consideration with much caution as there remains scope for making subsequent embellishment of the prosecution case and has argued that in this present case the subsequent embellishment and departure from the FIR story has been overlooked by both the trial court and the appellate court causing failure of justice. The learned Advocate has made argument to the effect also that some of the own witnesses of the prosecution though have deposed before court to the effect that the men of Aiyub Ali attacked the deceased/victims but these witnesses did not say at all that the accused Aiyub Ali himself was present in the place of occurrence or took any part in that occurrence. The learned Advocate has contended that these evidence of the own witnesses of the prosecution rather proves that accused Aiyub Ali himself was not at all involved in the alleged occurrence, but he has been entangled in this case by the informant side out of enmity and grudge only. The learned Advocate has contended also that the evidence of these prosecution witnesses, namely, P.Ws.9, 10, 11 and 15 rather proves that the accused-appellant Aiyub Ali had no involvement in this alleged occurrence. Mr. Md. Sarwar Ahmed, the learned advocate for the accused-appellants has made argument to the effect also that though some of the prosecution witnesses have deposed to the effect that this accused Aiyub Ali dealt a chapati blow on the back side of the head of the deceased Monwar Ali, but this evidence is doubtful inasmuch as some other prosecution witnesses have deposed to the effect that accused Aiyub Ali had a gun in his hand. The learned Advocate has contended that these contradictory evidence of the own witnesses of the prosecution has made the charge against this accused-appellant doubtful and in the circumstances this accused-appellant is entitled to be acquitted from this charge. The learned Advocate for the accused-appellant Aiyub Ali and Mahfooz son of Aiyub Ali has argued also that the other charges brought against these accused-appellants for killing deceased Badsh and Hashem Kazi have not been proved at all. The learned Advocate has pointed out that though the prosecution case is that at the time of occurrence the accused persons killed Hashem Kazi also by firing shot, but this prosecution case has been proved false by the postmortem examination repot of dead body of Hashem which shows that there was no gun shot injury at all on the dead body of Hashem. The learned Advocate has argued that though these accused appellants have been convicted for killing deceased Badsha also but there is no evidence at all to prove that these accused-appellants took any part in killing Badsha.

Mr. Md. Sarwar Ahmed, the learned Advocate has made argument to the effect also that in this case the own evidence of the prosecution itself has rather proved that the deceaseds and victims of this case were miscreants and they came to the place of occurrence with fire arms like guns and pistol with an intention to commit crime and they also committed murder of Alauddin son of accused Ayesha and at this the local people, being agitated, assaulted them and consequently some of them died, but long 5 days after this occurrence the informant, being influenced by some enemies of the accused persons, lodged the FIR making a false story. The learned Advocate has argued that the evidence of the prosecution witnesses to the effect that the high officials of Administration and police asked the deceased and other victims by hand mike to surrender and to deposit their arms supports this case that the deceased and the victims actually came there to commit some crmies and they were assaulted and killed by the agitated mob. The learned Advocate has pointed out that in the inquest reports also of the dead bodies, the deceaseds were mentioned as miscreants. Mr. Md. Sarwar Ahmed has argued also that in this case the alleged eye witness P.W.2 Alhaj Sirajuddin Bepari was not examined by the investigating officer and the rest alleged eye witnesses were examined by the investigating officer after a long laps of time and in the circumstances the evidence of these alleged eye witnesses should be left out of consideration as per settled principle of law.
Mr. Md. Sarwar Ahmed, the learned Advocate has made argument to the effect also that according to the own case of the prosecution, Alauddin, son of accused Ayesha Begum, was killed inside the house of Srijon Bepari where deceased Monwar Ali and his companions were staying with arms, that this deceased Alauddin is the full brother of accused Nazir, Mizan, Nizam and Badsha and these accused-persons having seen the dead body of their brother, being highly shocked and gravely provocated, participated in the free fight arose between the parties and that these facts prove that the occurrence took place without any premeditation and it occured as a result of sudden grave provocation. The learned Advocate has contended that in the circums-tances the conviction under section 302 of the Penal Code may be altered to one under section 304, part-II of the Penal Code. The learned Advocate has made submissions to the effect also that the accused-appellant Aiyub Ali has been detaining in the condemned cell and has been suffering from mental agony of death for about 10 years and considering these fact as extenuating circumstances this court may now commute his sentence of death to imprisonment for life.

Mr. Abdul Motin Khashru, the learned Advocate appearing for the appellants Mannan Shah, Shawkat Ali and Hashem has made arguments to the effect that the charges framed against these 3 appellants have not been proved beyond all reasonable doubt, that the evidence which the prosecution has adduced before court to prove the charges against these accused-appellants could not prove at all these accused-appellants guilty of the said charges. The learned Advocate has argued that though the prosecution has examined some alleged eye witnesses before court but the evidence of these alleged witnesses, namely, P.Ws.2 to 8 are contradictory to each other and as such these evidence could not prove the charges against these accused-appellants at all. The learned Advocate has pointed out that according to the case of the prosecution as many as 15 persons dealt blows on victim Monwar Ali with sharp cutting weapons like ‘chan’, ‘dao’, axe and ‘chapati’ at a time but in the postmortem examination report of the dead body of victim Monwar Ali there is no incised wound on the body of the victim and that this fact also tells in favour of falsehood of the prosecution case. Mr. Abdul Motin Khashru has made submissiont to the effect also that admittedly dead body of Alauddin son of accused Ayesha and full brother of accused Nazir, Nizam, Mizan and Badsha was brought out of the house where victim Monwar Ali and his associates were staying with fire arms and that seeing the dead body of Alauddin his near and dear ones, being highly shocked and provocated, might have attacked the victims and in the circumstances this case comes within the ambit of section 304, part-II of the Penal Code and not under section 302 of the Penal Code. The learned Advocate has made argument to the effect also that the High Court Division found that the charges framed against some other convicted persons were not proved beyond reasonable doubt and, therefore, acquitted those accused persons, that the accused-appellants Mannan Shah, Shawkat Ali and Hashem also stand on the same footing with those accused-persons who have been acquitted by the appellate court and as such these accused persons also are entitled to get benefit of doubt and entitled to be acquitted.

Mr. Mansurul Haque Chowdhury, the learned Advocate appearing for the accused-appellant Faruq Gazi and A. Salam @ Ketu Salam @ Kota Salam has made argument to the effect that the charge framed against these 2 accused-appellants have not been proved beyond all reasonable doubt. The learned Advocate has pointed out that the allegations against these 2 accused- appellants is that they murdered Hashem and Badsha by gun shot, but the postmortem examination report of the dead bodies of Hashem and Badsha proved that there was at all no gun shot injury on those bodies. The learned Advocate has contended that this very fact make the allegations against these 2 accused-appellants false. Mr. Mansurul Haque Chowdhury has submitted also to the effect that the evidence of the alleged eye witnesses to the occrrence are contradictory and these evidence could not prove the charges framed against these 2 accused-appellants beyond all reasonable doubt. The learned Advocate has argued to the effect also that the own evidence of the prosecution has rather proved that the deceased and the victims went to the palce of occurrence with fire arms for commiting some crime and at that time the local people, being agitated, attacked them and ultimaely the agitated mob assaulted them causing death of some of them, but 5 days after that occurrence the informant, being ill advised by some inmical persons of the accused side, lodged the FIR making false allegations against the accused persons; that in this case it has not been proved by any cogent evidence that these appellants Faruq Gazi and A. Salam @ Ketu Salam took any part in the alleged occurrence and in the circumstances these 2 appellants are entilted to get benefit of doubt. The learned Advocate has argued also that though these 2 accused appellants have been convicted under sections 302/109 of the Penal Code, but there is no iota of evidence in this case to prove that these 2 accused-appellants in any way abetted the offence of murder.

Mr. Mohammad Ali, the learned Advocate-on-Record for the accused-appelant Shafiul Azam Dafader has made submissions similar to those made by the learned Advocates for other accused-appellants as stated above. The learned Advocate-on-Record also has made argument to the effect that the evidence adduced by the prosecution could not prove the charge against the accused-appellant Shafiul Azam Dafader inasmuch as the alleged eye-witnesses-whom the prosecution has examined in this case-are all interested and partisan witnesses and their evidence also are contradictory to each other.

Mr. Khondaker Diliruzzaman, the learned Deptuy Attorney General appearing on behalf of the State respondents in all the criminal appeals has advanced argument to the effect that it is a brutal murder case, that in this occurrence as many as 5 persons were murdered and 2 others were critically injured in broad day light in presence of thousands of people including high officials of Administration and police; that in this sensasional case the proseuction adduced sufficient evidence to prove the charges framed against the accused persons and the trial court and also the High Court Division examined, sifted and considered these evidence minutely and propertly and found these accused-appellants guilty rightly. The learned Deput Attorney General has argued that in this case so many eye witnesses to the occurrence have been examined by the prosecution all of whom have deposed supporting the prosecution case and that there is no cogent ground for discarding the evidence of these eye witnesses to the occurence; that both the trial court and the High Court Divison, considering all aspects, have accepted the evidence of these witnesses as reliable and that from the side of the accused-appellants nothing materal could be shown/detected to make these findings and decision of the trial court and the High Court Division not sustainable. Referring to the relevant portion of the evidence of the prosecution witnesses the learned Deputy Attorney General has argued that these evidence of the prosecution witnesses have sufficiently proved the charges brought against these accused-appellants and as scuh they cannot get acquittal as prayed for in these appeals. Refuting the argument advanced by the learned Advocates for the accused-appellants the learned Deputy Attorney General has made submissions to the effect also that in this case the delay of 5 days in lodging FIR is not fatal at all inasmuch as there were cogent reasons for not being able to lodge the FIR earlier and that the High Court Division has dealt with this point raised from the side of the accused persons and concluded correctly that the delay in lodging the FIR in the instant case, did not make the prosecution case doubtful at all. The learned Deputy Attorney General has argued also that in this case as many as 8 eye witnesses have been examined by the prosecution all of whom have deposed supporting the prosecution case and besides, some other witnesses also have deposed in this case lending support to the prosecution case and that in the circumstances the non-examination of some other FIR named or charge sheeted witnesses does not make the prosecution case weak or doubtful at all. The learned Deputy Attorney General has made argument to the effect also that the relationship of the prosecution witnesses wtih the informant side does not make their evidence unbelievable if their evidence is otherwise trustworthy and that in this case the evidence of these prosecution witnesses are trustworthy and a such cannot be disbelieved and discarded only for the reason that they are related to the informant side. The learned Deputy Attorny General has argued to the effect also that in this case it has been proved sufficiently that there was long standing enmity in between the accused Aiyub Ali-the present chairman of the Bagra Union and the deceased Monwar Ali-the former chairman of the same Union and in the circumstances the evidence of the prosecution witnesses to the effect that out of that enmity and grudge the accused persons, at the behest of accused Aiyub Ali-chairman, committed this occurrence-cannot be disbelieved.

For considering the arguments advanced by the learned Advocates for the accused-appellants and the learned Deputy Attorney General for the State-respondents we require to narrate the relevant portion of the evidence of the prosecution witnesses here. It has already been mentioned above that in this case the prosecution has examined 23 witnesses before court in order to prove its case.

The P.W.1 is the informant Meherunnessa. Admittedly, this witness is not an eye witness to the occurrence. Hearing about the occurrence from others she lodged the F.I.R. So we do not find the evidence of this P.W.1 important to be discussed in this judgment.

The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepri is an eye witness to the occurrence. This witness has deposed to the effect that on the date of occurrence, on 07.07.2001 at 8.00 A.M. to 9.00 A.M. he was sitting in his house. At that time Monwar Ali, Anwar Ali, Badsha, Hashem and Salauddin came to him and requested him to save them. On query, he learnt that the accused Aiyub Ali was chasing them to kill. Salauddin forthwith closed the door. He (the witness) looked through the window and saw that the accused Aiyub Ali himself and his associates encircled the north and western side of his house and they were pelting stones targeting his house. Subsequently, the accused Kuti Chand, Nizam, Nazim, Sabuj Ali, Hashem and Alauddin broke open the door and entered into his house and made attempt to drag away Badsha. Hashem, who also took shelter in his house was trying to drag Badsha into the house. The accused Faruq Gazi then shot Hashem with a gun and as a result, Hashem fell down on the bags containing paddy. That the other accused persons from out side the house fired many shots. The accused Mannan Shah was firing with a cut rifle. The accused Ketu Salam was firing with a gun targeting his house. He saw that the deceased Badsha was bleeding. Monwar Ali told that Badsha was injured. They took Badsha to the 1st floor. Subsequently, he saw Alauddin to fall down. After taking Badsha to the 1st floor the deceased Monwar Ali closed the door of the stair case at 11.30 A.M. to 12 O’clock noon. Subsequently, he (P.W.2) went out of his house and went to the house of his cousin and saw that firing was going on. That Monwar Ali and others also were firing. He heard that the accused Aiyub Ali also opened fire. Thereafter, he heard that the deceased Monwar Ali was being asked to surrender. In the evening police brought down Monwar Ali, Badsha, Anwar Ali and Salauddin under handcuff. When they were brought in front of a bamboo clump the accused Aiyub Ali dealt sharp cutting weapon blow under his head and asked his associates why they still kept alive those persons. He asked his associates to deal sharp cutting weapon blows to Monwar Ali and others. Subsequently, the other accused persons, namely, Kuti Chand, Mizan, Nizam dealt sharp cutting blows to Monwar Ali and also beat him up. The accused Kuti Chan had a wooden ‘rowa‘, ‘(dasa)’ in his hand, the accused Nazir had an iron pipe of tube well. The accused Badsha had a ‘dao’ in his hand. The accused Mizan had a ‘dao’ in his right hand and a rod in his left hand. The accused Sabuj Ali had a rod and a ‘dao’ in his hand, accused Salam Sikder had a ‘Ram dao’, the accused Hashem had big ‘chhan’, accused Ripon had a ’chinese axe’, accused Awal Gazi had a ‘dao’ in his hand, accused Mobile Mannan had a sharp cutting ’dao’ in his hand, accused Mahfuz had a big chinese axe, accused Babul had a big ‘dao’, accused Shafiul Azam Dafader had a big ‘dao’ in his hand, accused Seraj had a big ‘chhan’, and accused Javed had a ‘chapati’ in his hand. Accused Mannan Shah opened fire with a rifle. Accused Hashem dealt blow on the chest of Monwar Ali with a big wooden ‘dasa’. The other accused persons dealt ‘dao’ blows to Monwar Ali, Anwar Ali and Badsha and also dealt kick blows. Accused Ayesha Begum dealt blows on the head of the deceased Monwar Ali with a brick. Monwar Ali fell down to the ground. The accused persons plundered away materials from his house and set his house on fire. On the following day he filed a case against the accused persons. This witness has identified the accused persons Aiyub Ali, Ketu Salam, Babul, Shafiul Azam Dafader, Mannan Shah, Ayesha Begum, Mahfuz and Titon Khan on dock. This P.W.2 was cross-examined at length on behalf of the accused persons, but nothing material came out from his cross-examination to make his evidence false. This witness has denied the defence suggestion that accused Aiyub Ali could not walk without help of stick.

The P.W.3 Md. Salauddin-one of the injured witnesses has deposed to the effect that the occurrence took place on 07.07.2001. On that day, at about 8.00 A.M. after breakfast, he along with deceased Monwar Ali Chairman, Anwar Ali and Badsha came out of their house and started for Bagra Bazar. When they reached near the house of Tota Sikder they heard the sound of the utterance ‘catch them’. They looked back and saw the accused Aiyub Ali, Nizam, Mizan, Kuti Chand, Sabuj Ali, Nazim, Badsha, Mannan Shah, Alauddin, Ketu Salam, Mobile Mannan, Mintoo, Shawkat Ali, Mahfuz, Hashem, Shafiullah, Salam Skider and others comming running towards them. Finding no other way they entered into the house of Srijan Bepari and he locked the latch of the door. Breaking the latch, the accused Alauddin, Hashem, Nizam, Kuti Chand, Nazir entered into the house and made attempt to drag away Badsha from the house. Deceased Hashem obstructed the accused persons and tried to save Badsha. Accused Faruq Gazi shot the deceased hashem and as a result, the deceased Hashem fell down on the bags of paddy. Thereafter the accused persons made attempt to drag out Badsha. At that moment the accused Mannan Shah and Ketu Salam opened fire with gun and rifle through the window at which Badsha raised alarm and he then saw that Badsha was bleeding. They then took Badsha to the 1st floor and closed the door. Thereafter, the accused persons fired indiscriminately. Monwar Ali and Anwar Ali opened blank fire. This situation continued till 12 O’clock noon. Deceased Monwar Ali informed his relatives through mobile phone to send massage to the police station for rescuing them. Thereafter some police came to the place of occurrence but could not control the accused persons. The police asked them to surrender assuring them that they would help them and escort them safely to their houses. That the accused persons at that time also fired indiscriminately and also hurled bricks and stones. Thereafter police along with officers from different police station came to the place of occurrence and at the assurance of police they handed over their licensed arms to police at 4.30. P.M. Subsequently they came down from the 1st floor and the police then handcuffed them. That police handcuffed him and deceased Monwar Ali together and Badsha and Anwar Ali together. In the meantime Hashem died. The police took them near the bamboo clump under handcuff. At that time accused Aiyub Ali saying ‘finish them’ dealt chapati blow at the back side of the head of deceased Monwar Ali. Accused Kuti chand dealt ‘wooden dasa’ blow on the head of Monwar Ali and as a result Monwar Ali fell down to the ground. Accused Nazir kept dealing tube well iron pipe blows to the deceased Monwar Ali. The accused Mizan dealt blow on the head and on the chest of Monwar Ali chairman with a ‘Monai’ of husking pedal (the part of husking pedal that goes into the hole). Accused Javed dealt stick blows to Monwar Ali Chairman. Accused Mahfuz kept dealing chines axe blows to Monwar Ali. Accused Ripon dealt chinse axe blow to Monwar Ali. Accused Hashem kept dealing ‘chhan‘ blow to Monwar Ali. Accused Sabuj Ali dealt ‘chhan‘ blow. Accused Mobile Mannan dealt chhan blow. Accused Shawkat Ali Mollah dealt sharp cutting weapon blow. Accused Shafiullah Dafader dealt chhan blow. That the accused persons kept dealing blows to the deceased Monwar Ali chairman indiscriminately. Accused Ayesha Khatun dealt brick blow on the head of Monwar Ali Chairman. Said accused persons also dealt him sharp cutting weapons and stick blows. Accused Mannan Shah, Faruq Gazi and others jumped on Anwar Ali and Badsha.That he was lying pretending to be dead. At about dusk police took him to Sreenagar Police Station in a van where he regained sense completely. At 12 O’clock at night he along with Anwar Ali was taken to Dhaka Medical Collage Hospital. Subsequently he heard that chairman Monwar Ali, Badsha and Hashem had died. This P.W.3 has deposed to the effect also that there was enmity in betweent the accused persons and his maternal uncle Monwar Ali from before. This witness has identified the accused persons present on dock. This P.W.3 was cross-examined at length on behalf of the accused persons, but nothing material came out from his cross-examination to make his evidence false or unbelievable.

The P.W.4 Md. Anwar Ali-the other injured witness has depsoed to the effect that on 07.07.2001 at about 8.00 A.M. he along with the deceased Monwar Ali, his cousin Badsha and nephwe Salauddin started for Bagra Bazar with their licensed gun. On the way they took Hashem with them. When they reached near the house of Tota Sikder they heard the sound ”catch and shoot”. Looking back they saw that the accused Aiyub Ali, Mahfuz, Kuti Chand, Sabuz Ali, Nizam, Nazir, Mizan, Alauddin, Mannam Shah, Mobile Mannan, Faruk Gazi, Ketu Salam, Hashem, Javed, Joynal, Mokter, Shawkat Ali Molla, Mithu and Ripon were chasing them. Having found no other way they entered into the house of Srijan Bepari. The accused persons were 40/50 in number. They heard sound of shooting and pelting stones out side. They also heard somebody telling to bring them out by breaking latch of the door and immediately thereafter the accused Alauddin, Hashem, Nizam, Nazir, Kuti Chand, Sabuj Ali and Mahfuz entered into the house by breaking the door and apprehended his cousin Badsha and wanted to take Badsha out of house and they tried to keep Badsha in side. In that situation accused Faruq Gazi opened fire which hit Hashem and Hashem fell down upon the bags of paddy. The accused Mannan Shah opened fire with a cut-rifle. Accused Ketu Salam fired with a gun in his hand which hit Badsha and blood came out from his body. He along with Salauddin and Monwar Ali then took Badsha to the 1st floor of the house of Srijan Bepari and closed the door of the room. At that time Hashem died. That Monwar Ali then fired two blank gun shots to frighten the terrorist, but the accused persons kept firing. Monwar Ali then informed his relatives and police station by mobile phone and long after, police stared coming. The police asked Monwar Ali to deposit their guns and rifles saying that they would escort them to their residence safely. Ultimately Monwar Ali deposited two guns, one pistol and cartridges to the police. They dropped the arms and ammunitions down from the 1st floor. Thereafter, the accused persons set the house on fire. The police told them to come down and soon after they came down, 5/6 police personnel then handcuffed them. The police personnel handcuffed him and Badsha together and Monwar Ali and Salauddin together. Thereafter, the police personnel took them near a bamboo clump. At that time accused Aiyub Ali gave command to kill them and he himself dealt chapati blow on the back side of the head of Monwar Ali. Accused Kuti Chand dealt wooden ‘dasa’ blow on the head of Monwar Ali and as a result Monwar Ali fell down to the ground. Accused Nazir kept dealing tube well iron pipe blow on the head and the chest of Monwar Ali. Accused Nizam sat on the chest of Monwar Ali and kept dealing ‘Monai’ blow on the chest and throat of Monwar Ali. Accused Ripon kept dealing ‘chinese axe’ blows. Accused Hashem kept dealing ‘chhan‘ blows to Monwar Ali. Accused Javed dealt stick blows to Monwar Ali. Accused Mannan Shah kept dealing ‘chhan‘ blows to Monwar Ali. Accused Faruq Gazi kept dealing ‘chhan‘ blows to Monwar Ali. Accused Sabuj Ali kept dealing ‘dao‘ blows to Monwar Ali. Accused Jainal Moktar kept dealing chhan blows to Monwar Ali. Accused Mobile Mannan kept dealing ‘chhan‘ blows. Accused Shafiul Azam dealt chhan blows to Monwar Ali. Accused Mahfuz dealt axe blow to the deceased Monwar Ali. Accused Ayesha Khatoon deal brick blows on the head of Monwar Ali. Accused Salam Sikder kept dealing ‘chhan‘ blows to Monwar Ali. The other accused persons kept them encircling. The said accused persons dealt blows to Salauddin. Accused Aiyub Ali Chairman then gave order to kill the main pioneers saying not to kill Salauddin. Then accused Faruq Gazi and Mannan Shah jumped upon Badsha and dealt him sharp cutting weapon blows. The other accused persons also dealt sharp cutting weapon blows to Badsha. The said accused persons dealt blows on his head and whole body. That keeping his hand on a brick the accused Kuti Chand damaged three fingers of his hands by dealing brick blows. By pressing his nose the accused Hashem tested as to whether he was alive or not. He then lost his sense and regained his sense in Dhaka Medical College Hospital. That Monwar Ali, Badsha and Hashem died and he along with Salauddin survived. From the cross-examination of this witness also nothing material came out to make the evidence of this witness false.

The P.W.5 Saidur Rahman Pintoo deposed to the effect that on 07.07.2001 at about 8.00/8.30 A.M. he was having his breakfast in his house. He heard that turmoil was taking place in the house of Tota Sikder. Having received the news he went to the house of Tota Sikder and saw that accused Aiyub Ali along with 30/40 persons drew out the eyes of a boy and were beating another boy. At about 9.00/9.30 A.M. a boy gave information to Aiyub Ali Chairman to the effect that the deceased Monwar Ali Chairman along with his brothers were going along the road. Accused Aiyub Ali Chairman then ordered those 30/40 persons to catch them. That 5/7 persons amongst the said 30/40 persons had arms in their hands. Accused Aiyub Ali chairman had a gun in his hand. Accused Aiyub Ali Chairman along with the aforesaid persons chased Monwar Ali chairman and his brothers and they (witness and others) followed them from behind. They saw that the said persons encircled the house of Srijan Bapari. He heard that Monwar Ali Chairman and others took shelter in the house of Sirajuddin Bepari (Srijan Bepari). He saw arms, ‘chapati’, stick and ‘chhan’ etc. in the hands of the accused Mannan Shah, Faruq and Salam. The accused-persons Mizan, Ketu Chand, Badsha, Ripon, Alauddin and Sabuj Ali also were with them. The said persons made attempt to enter into the house by breaking the door. At one stage the accused Kuddus, Alauddin, Nazir, Ketu Chand and Sabuj Ali entered into the house by breaking the door. He heard the sound of screaming from inside the house. The accused Ripon, Mannan Shah, Faruq and Salam opened fire through the window of the house from out side at about 11.00/11.30 A. M. At that time fire was opened from inside that house also. Stones were pelted from out side the house. At about 12.30-1.00 P.M. police came. Sensing the presence of police those who had illegal arms escaped. Sometimes after that more police came. About 150/175 police personnel came to the place of occurrence. At about 4.00-4.30 P.M. addressing Monwar Ali police announced that there were sufficient numbers of police personnel to give security to him and asked him to give his arms and ammunitions to police. At that time he saw the accused Aiyub Ali Chairman to make discussion with some police officers. After announcement was made for more than once, two guns, other arms like pistol and cartridges were dropped from the first floor of the house. One S.I. of police with 5/6 constable then entered into the first floor of Serajuddin Bepari and within 5/7 minutes police handcuffed Monwar Ali, his nephew Salauddin, Anwar Ali and Badsha and brought them out of the house. Police took Monwar Ali, Anwar Ali, Salauddin and Badsha to the bamboo clump situated to the northern side of the house of Sirajuddin Bepari where Aiyub Ali Chairman along with 15/20 parsons were standing. He (witness) was standing at a distance of 4/5 yards from that place. That Aiyub Ali gave order to those 15/20 persons to kill Monwar Ali and others. Aiyub Ali Chairman himself then dealt chapati blow on the back of the head of Monwar Ali. The accused Ketu Chand dealt wooden ‘dasa’ blow on the head of Monwar Ali Chairman. Accused Nazir dealt steel tube well pipe blow on the head of Monwar Ali. As a result Monwar Ali fell down to the ground. Thereafter, the accused Nazir dealt indiscriminate blows on the different parts of the body of Monwar Ali. Accused Nizam dealt blows to Monwar Ali Chairman and Salauddin with the frontal part of a husking pedal. Then accused Aiyub Ali Chairman gave commend to kill Badsha and Anwar Ali leaving Salauddin. Accused Mahfuz and Ripon had ‘chinese axe’ in their hands. They dealt chinese axe blows to Monwar Ali and Badsha. Accused Shafiul Azam dealt ‘chhan’ blows to Monwar Ali and Badsha. Accused Salam Sikder and his son Mahfuz Sikder dealt ‘chhan’ and stick blows respectively to Monwar Ali. Accused Javed dealt stick blows to Anwar Ali and Badsha. Accused Hashem, Ruble, Muluk dealt ‘chhan’ and stick blows to Monwar Ali. Accused Ayesha Khatoon dealt brick blow on the mouth and the body of Monwar Ali. Accused Mobile Mannan dealt sharp cutting weapon blows to Badsha. Accused Jainal Talukder, Alek and Shawkat Ali set the house of Seraj Bepari on fire. The death of Monwar Ali was confirmed. That seeing the aforesaid brutal activities of the accused persons the police constables present at the place of occurrence revolted and opened fire. As a result, an old person Ismail Gazi by name was hit on his head and died. Two dead bodies were brought out of house of Sirajuddin Bepari. At that time they knew that Monwar Ali, Salauddin, Badsha and Anwar Ali had died. Police took 7 dead bodies to Sreenagar Police Station by a van. Subsequently, at night he (witness) came to know that Anwar Ali and Salauddin did not die and that rest had died. This witness has further deposed to the effect that with his own eyes he saw said barbaric and ruthless killing, that this type of killing should be stopped. This witness identified the accused persons present on dock. This witness was cross-examined at length on behalf of the accused persons but nothing material came out from his cross-examination to make his evidence unbelieveable.

The P.W.6 Md. Shahabuddin Khan is the Headmaster of Bagra Swarup Chandra Pilot High School. He was also the chairman of Bagra Union for two terms from 1984 to 1991. This witness has deposed to the effect that since after the liberation war innumerable occurrences of murder took place under the leadership of the accused Aiyub Ali. That the instant occurrence of murder was the continuation of the said incidents. That on 07.07.2001, Saturday, at 8.30 A.M. he started for Bagra Bazar and school from his house. On the way he came across the accused Aiyub Ali and his companion 50/60 armed persons near the house of Tota Sikder. He saw 5/6 of them had fire arms in their hands and the rest had sharp cutting weapons. He saw that eyes of Kalam of Chhatrabhog village was extracted and that Dulal was being beaten. At that time he saw Kader Sikder the son of Tota Sikder to be beaten. At one stage of this occurrence he saw ex-chairman Monwar Ali of Bagra Union, Anwar Ali, Hashem Bepari, Salauddin and Badsha going to the market along the road. One of the accused persons then informed the accused Aiyub Ali that Monwar Ali, Anwar Ali and others were going through that road. Then the accused Aiyub Ali gave command to catch them. Forthwith, the associates of the accused Aiyub Ali chased those persons. Monwar Ali and Anwar Ali took shelter in the house of Seraj Bepri running. Forthwith, the accused Aiyub Ali, Mahfuz, Mintoo, Sabuj Ali, Kuti Chand, Alauddin, Nazim, Mizan, Badsha, Ayesha Begum, Shafiul Azam, Babul Munshi, Syed Chowdhury, Salam @ Ketu Salam, Faruq Gazi, Mobile Mannan Salam Sikder, Mahfuz, Alam Bepari, Shamsuddin Bepari, Mannan Shah, Titon Khan, Rob, Ratan Thakur, Rafiq Sikder, Nannoo Sikder and many others sorrounded the house of Seraj Bepari running and kept pelting stones and shooting. At one stage of the occurrence the accused Aiyub Ali gave order to bring them out breaking the door. Accused Alauddin, Nizam, Mizan, Badsha, Sabuj Ali, Kuti Chand then entered into that house breaking the door and he (witness) then heard sound of screaming inside the house. Aiyub Ali then gave command to finish them by opening fire. Then accused Mannan Shah opened fire through the window with a cut riffle. Accused Ketu Salam and Faruq Gazi opened fire with guns. During the occureence at 1.00 P.M. police came to the place of occurrence. After coming to the place of occurrence, instead of resisting the accused persons, police personnel kept making consultation with the accused Aiyub Ali. Then from inside the house also fire was opened. Subsequently, many police came to the place of occurrence from different places. Till 4.00/4.30 P.M. police came to the place of occurrence. The associates of the accused Aiyub Ali, who had fire arms in their hands fled away and came back once again to the place of occurrence with sharp cutting weapons. At about 4.00/4.30 P.M. the high officials of police came to the place of occurrence and asked Monwar Ali with a mike to come down assuring them that accused Aiyub Ali would do nothing to them and that they would reach them to their house safely. After these words were uttered 2/3 times, Monwar Ali dropped two rifles, one pistol and one packet of bullet. Monwar Ali, Anwar Ali, Badsha and Salauddin came down. Forthwith, 5/6 police personnel entered into the house. Police handcuffed Anwar Ali and Badsha together and Monwar Ali and Salauddin together and brought them out. Soon after that Shawkat Ali, Alek Member and some others set the house of Siraj Bepari on fire. Thereafter while Monwar Ali and others were brought near the bamboo clump of Siraj Bepari, accused Aiyub Ali gave order to snatch them away from police and to kill them and he (accused Aiyub Ali) forthwith dealt ‘chapati‘ blow on the back side of the head of Monwar Ali. Accused Kuti Chand dealt wooden ‘dasa’ blow on the head and on the chest of Monwar Ali. Accused Nazir dealt blow with iron pipe of tube well on the head, chest and mouth of Monwar Ali. As a result Monwar Ali fell down to the ground. Accused Nizam kept dealing blows on the chest and on the head of Monwar Ali with a ‘Monai’ of husking pedal. Accused Shafiul Azam dealt indiscriminate blows to Monwar Ali. Accused Mahfuz and Ripon kept dealing ‘chinese axe’ blows to Monwar Ali. That these accused persons assaulted Salauddin also. Accused Aiyub Ali gave command to kill Anwar Ali and Badsha first and to leave Salauddin. Thereafter the accused persons jumped upon Anwar Ali and Badsha and kept assaulting them and dealing sharp cutting weapon blows on them. That the police did not resist the accused persons. By dealing sharp cutting weapon blows the accused persons ensured the death of Monwar Ali, Anwar Ali, Salauddin and Badsha. At that time some members of the police became excited and objecting the act of the accused persons opened fire and as a result, a passerby Ismail Gazi by name died at the cross fire. Subsequently police brought out the dead bodies of Alauddin and Hashem Bepari from the house of Seraj Bepari. Police took away 7 dead bodies by a van. At night he got information to the effect that Salauddin and Anwar Ali had survived. This witness identified the accused persons present on dock. From the cross-examination of this witness also nothing material came out to make any doubt about the truth of his evidence.

The P.W.7 Abul Kalam Azad (Kalam Morol) has deposed to the effect that the occurrence took place on 07.07.2001. On that day he woke up at about 8.30 A.M. and heard hue and cry in the house of Tota Sikder which was situated near his house. He went to that house and saw that accused Aiyub Ali chairman was standing there with a gun in his hand along with 30/40 other persons. Most of those persons were known to him. Some of them had sharp cutting weapons in their hands and some had fire arms. Aiyub Ali along with 30/40 persons were beating up the son of Tota Sikder. They extracted the eyes of a person. Sometimes after that Monwar Ali Chairman was going to the market. He was accompanied by Anwar Ali, Salauddin, Badsha and others. They were going to the Bagra Bazar. Aiyub Ali chairman gave order to catch them. Monwar Ali and others then took shelter in the house of Siraj Bepari. The companions of the accused Aiyub Ali chairman surrounded that house and kept pelting stones and firing. The accused Nizam, Mizan, Kuti Chand, Alauddin, Nazir, Sabuz Ali, Mahfuz, Salam Sikder, Shafiul Azam, Babul, Kuddus and many others kept pelting stones and firing. Sometimes after that the accused Aiyub Ali Chairman gave command to bring out Monwar Ali chairman from the house breaking the door. Thereafter accused Alauddin, Kuti Chand, Sabuj Ali, Mahfuz, Majibar and others entered into the house breaking the door. He (witness) then heard the sound of screaming from inside the house. Accused Salam, Mannan Shah and others opened fire through the window of that house. Sometimes after that when police came to the place of occurrence those who had arms and were opening fire, went into the house of Siraj Bepari keeping their arms elsewhere. In the meantime many police personnel came to the place of occurrence. At about 4.00/4.30 P.M. high officials of police asked Monwar Ali with a hand mike to deposit the arms assuring them that they would reach them safely to their house. Sometimes after that Monwar Ali chairman dropped two guns, a pistol and a packet of cartridages from the first floor of the house of Siraj Bepari. Thereafter, 8/10 police personnel entered into the house and handcuffed Monwar Ali and Salauddin together and Anwar Ali and Badsha together and brought them out of the house of Siraj Bepari and took them to the bamboo clump situated to the north of the house of Siraj Bepari. Then at the command of the accused Aiyub Ali the house of Siraj Bepri was set on fire. Accused Aiyub Ali chairman then asked why they did not as yet finish them and saying that the accused Aiyub Ali dealt ‘chapati‘ blow on the back of the head of the deceased Monwar Ali. Then accused Nazir, Nizam, Mizan, Kuti Chand, Sabuj Ali, Mahfuz, Salam Sikder, Babul, Shafiul Alam and Kuddus dealt sharp cutting weapon blows to the deceased Monwar Ali, Anwar Ali, Badsha and Salauddin. At the last moment the accused Ayesha Begum dealt brick blows on the head of Monwar Ali chairman. At that time police opened fire. The present terrorists also opened fire. At one stage of said firing Ismail Gazi, who was standing beside the field, was hit by bullet and he died. Police brought out two dead bodies from the house of Srijan Bepari. Police took away 7 dead bodies including those of Monwar Ali, Salauddin, Anwar Ali, Badsha, Ismail Gazi by a transport to the police station. On the following morning he heard that Anwar Ali and Salauddin survived. This witness also identified the accused persons present on dock. From the cross-examination of this P.W.7 also nothing material came out to make his evidence unbelievable.

The P.W.8 Md. Shahin Bhuiyan has deposed to the effect that he had a workshop at Bagra Bazar. The occurrence took place on 07.07.2001. On that day at about 8.30 A.M. he started for Bagra Bazar from his house. After he reached near the house of Tota sikder he saw 50/60 persons. He saw fire arms in the hand of the accused Aiyub Ali and sharp cutting weapons in the hands of 5/6 other persons accompanying him. He saw that the eyes of a person were extracted and other 2 persons including one Kader Sikder were being assaulted. Sometimes after that he saw the deceased Monwar Ali, Badsha, Hashem Bepari, Anwar Ali and Salauddin and others to go towards the market. Somebody was telling the accused Aiyub Ali chairman that Monwar Ali chairman, Badsha and others were going to the market. Then the accused Aiyub Ali gave order to catch them. Deceased Monwar Ali, Badsha and others then went to the house of Siraj Bepari running. Accused Aiyub Ali and others were chasing them. Accused Aiyub Ali and others encircled the house of Siraj Bepari and kept pelting stones and firing into the house of Seraj Bepari. Accused Mizanoor, Alauddin, Kuti Chand, Nazir, Nizam, Badsha, Hashem and Masud surrounded the house of Srijan Bepari. Accused Piyar Ali and Jashim and others also surrounded the house of Siraj Bepari. Accused Aiyub Ali gave command to bring out Monwar Ali and others by breaking the door. Then the accused Alauddin, Nizam, Ripon, Kuti Chand, Sabuj Ali, Masud, Piyar Ali, Jashim and others entered into the house breaking the door. Scuffle took place between the deceased Monwar Ali and others and the said accused persons. Subsequently the accused persons opened fire into the house through the window. At one stage of firing he heard sound of crying from inside the house. Monwar Ali, Badsha and others thereafter went to the first floor of the house of Siraj Bepari. The associates of Aiyub Ali chairman fired into the house from out side. From inside the house Monwar Ali chairman and others also opened fire. At about 12.30-1.00 P.M. police came to the place of occurrence. He saw the accused Aiyub Ali to talk with the police personnel. During the occurrence more police personnel came and assembled at the place of occurrence. At about 4.30 P.M. a police officer asked Monwar Ali and others with a hand mike to come down and to deposit their arms assuring them that they would reach them safely to their house. The associates of Aiyub Ali chairman and the police personnel kept surrounding the house of Siraj Bepari. The deceased Monwar Ali dropped down two guns, one pistol and some cartridges from the first floor. 7/8 police personnel then entered into the house and brought Monwar Ali and others down. After entering into the house, the police personnel handcuffed Monwar Ali and Salauddin together and Anwar Ali and Badsha together and brought them near the bamboo clump. Soon after Monwar Ali and others were handcuffed and brought out of the house, the accused Piyar Ali, Jashim, Shawkat Ali Molla, Momin, Alek and others set the house of Srijan Bepari on fire. Thereafter, the accused Aiyub Ali gave command to kill Monwar Ali and others by snatching them away from police and saying this, the accused Aiyub Ali dealt chapati blow on the back side of the head of the deceased Monwar Ali. Accused Kuti Chand kept dealing indiscriminate blows to Monwar Ali on his head and chest with a wooden ‘dasa’. The accused Nazir dealt iron pipe of tube well blow on the head and on the chest of Monwar Ali. As a result, Monwar Ali fell down to the ground. Then the accused Nizam dealt blows on the head and on the chest of the deceased Monwar Ali with a ‘Monai’ of husking pedal. Accused Mahfuz and Ripon kept dealing ‘chinese axe’ blows to Monwar Ali. Accused Sabuj Ali kept dealing ‘dao’ blows to Monwar Ali. Accused Ayesha Begum dealt brick blows on the head and on the chest of Monwar Ali. Accused Shafiul Azam and Syed Chowkider dealt ‘chheni’ blows to Monwar Ali. Said accused persons kept assaulting Salauddin also. Accused Aiyub Ali then gave command to finish Badsha first. Then accused Mobile Mannan jumped upon Badsha and kept dealing indiscriminate sharp cutting weapon blows to him. At one stage of this occurrence, the accused persons dealt blows to Anwar Ali also. Being infuriated at the sight of the occurrence, police personnel opened fire targeting the companions of the accused Aiyub Ali. At that time a person, namely, Ismail Gazi died. Subsequently, police took away 7 dead bodies by a police van to Sreenagar Police Station. Subsequently he heard that 5 persons had died and that Salauddin and Anwar Ali had survived. This witness also identified the accused present on dock. This P.W.8 also has been cross-examined on behalf of the accused persons but nothing could be brought out by cross-examining him to make his evidence false or unbelievable.

The P.W.9 Md. Korban Ali is a police constable. At the time of occurrence he was attached to Sreenagar police Station. The material part of evidence of this witness is that on the date of occurrence he along with other constables under the leadership of A.S.I. Rafiq went to the place of occurrence. At that time he saw the ex-chairman Monwar Ali with his other companions to stay in the 1st floor of a house which was besieged by the people from all sides and he came to know that the people who besieged that house were the associates to Accused Aiyub Ali. That the associates of accused Aiyub Ali kept throwing stones targeting that house. That the high officials of police asked Monwar Ali chairman and his associates to come down and surrender saying that they would give them shelter and then Monwar Ali dropped two guns, one revolver and some cartridges and subsequently they came out of that house and the police handcuffed them. At that time the associates of Aiyub Ali set the first floor of that house on fire. That they took Monwar Ali Chairman and others near the bamboo clump and at that time the associates of Aiyub Ali attacked them and dealt sharp cutting weapon blows to Monwar Ali chairman and four others. At that time the officer-in-charge of Sreenagar Police Station got injured. Monwar Ali chairman and his four other associates fell down on the ground in bleeding condition. At that time another person also died having received gun shot. They took 7 dead bodies to Sreenagar Upazilla Hospital where the doctors declared that two of them did not die.

The P.W.10 Md. Amir Morol is another police constable who also was attached to Sreenagar Police Station at the time of occurrence. This witness also has deposed to the effect that he along with S.I. Iqbal Bahar Chowdhury went to the plaice of occurrence and saw there many people around the house of Nikari. That on asking of S.I. Iqbal Bahar Chowdhury those people told that 4/5 terrorist took shelter in the first floor of Nikari Bari. That S.I. Iqbal Bahar Chowdhury told that two persons had died inside the house and the dead bodies were lying there. That S.I. Iqbal Bahar Chowdhury informed the S.P. of the occurrence through wireless. Then S.P., D.C., T.N.O. and O.C. went to the place of occurrence. The police officer asked the people staying in the first floor of the house to surrender and then those people dropped their arms. At that time the associates of the accused Aiyub Ali set the house on fire. The people staying in the first floor of that house came down and the S.I. and constable handcuffed them. Soon after they reached the bamboo clump the associates of Aiyub Ali assaulted them and opened fire. As a result, officer-in-charge, Sreenagar Police Station and constable Lal Mia got injured. The people of the accused Aiyub Ali came and snatched away Monwar Ali, Anwar Ali and Badsha and killed them. He (witness) took the injured officer-in-charge and the constable to the hospital.

The P.W. 11 Lal Mia, another police constable of Sreenagar Police Station has deposed to the effect that receiving the information of the occurrence he went to the place of occurrence by a microbus with officer-in-charge of Sreenagar Police Station. That at that time S.I. Iqbal Bahar informed the officer-in-charge that in the ‘Nikari Bari‘ Monwar Ali chairman and his some companions were staying and the associates of the accused Aiyub Ali chairman kept the house under siege. With the wireless of S.I. Iqbal the officer-in-charge sought help of armed forces. Long after that, police force came to the place of occurrence from Munshiganj police line. Subsequently, the high officials of police came to the place of occurrence. The police officer, with a hand mike, asked the people taking shelter at ‘Nikari Bari‘ to come down and to hand over their arms. Those people then dropped their arms down. In the meantime the house in which they were staying was set on fire. The high officials went into the hosue and brought those people under handcuff. At that time 100/150 people came to the place of occurrence and one of them gave command to the others to kill the officer-in-charge. They assaulted the officer-in-charge. The people taking shelter in the house were taken near the bamboo clump under handcuff. To protect the officer-in-charge he went there. At that time he was hit on the back side of his right leg with a bamboo stick. That the name of the person who dealt stick blow to him was some Shah. Receiving stick blow he fell down to the ground and he opened blank fire. That the associates of the accused Aiyub Ali kept assaulting the persons who were brought out from the house under handcuff. He received bullet injury on his left leg. He was admitted to Sreenagar Health complex and subsequently he was taken to Razarbag Police Line Hospital.

The P.W.12 Dr. Jatindra Chandra Mondol held postmortem examination on the dead bodies of Monwar Ali, Badsha, Hashem Kazi and also an unknown person and prepared the postmortem examination report which, as per his identification, have been marked as exhibit. The postmortem examination report of the dead body of the deceased Monwar Ali has been marked as exhibit-3, the postmortem examination report of the dead body of the deceased Badsha Mia has been marked as exhibit-4 and the postmortem examination report of the dead body of deceased Hashem Kazi has been marked as exhibit-5 and the postmortem examination report of the dead body of an unknown person has been marked as exhibit-2 as per identification of this doctor witness-the P.W.12.

The P.W.13 constable Md. Shahjahan is a formal witness-who took the dead bodies of the deceaseds to morgue.

The P.W.14 constable Md. Mifta Uddin deposed to the effect that he along with another constable and two Anser under the leadership of S.I. Iqbal Bahar went to the place of occurrence and saw there many people with spear and arms in their hands to scream; on query they came to know that the miscreants took shelter in the house of Siraj Bepari with arms. They also came to know that Monwar Ali and others took shelter in the house of Siraj Bepari. They also came to know that those people came to kill Aiyub Ali chairman. He saw gun shots being fired from the first floor of the house of Siraj Bepari. S.I. Iqbal Bahar informed S.P. of the occurrence. At 4.00 P.M. the miscreants were asked to surrender whereon they dropped their arms. Subquently he heard that before dust the unruly mob set the house on fire and thereafter the miscreants came down and then the mob assaulted and killed them. That he saw 7 dead bodies. They brought the dead bodies to the police. Two victims were alive. In the evening the D.C. came and wanted to see the dead body of the terrorist Badsha and as per instruction of the D.C. the dead body of the terrorist Badsha was shown to the people. That he took the dead body of deceased Hashem to the hospital for postmortem examination.

The prosecution declared this P.W.14 constable Md. Mifta Uddin hostile. The prosecution put a suggestion to this witness to the effect that being gained over by the accused Aiyub Ali chairman he deposed falsely stating that the mob caused happening of this occurrence. This witness however has denied this suggestion of the prosecution.

The P.W.15 Awlad Hossain Razu deposed to the effect that on 07.07.2001 at about 12 O’clock he came to know that accused Aiyub Ali and his associates assaulted Monwar Ali chairman, Anwar Ali and others who then took shelter in the house of Siraj Bepari. He then went to the place of occurrence and saw the accused Aiyub Ali chairman and his associates encircling the house of Siraj Bepari. The accused Aiyub Ali had a sharp ‘chapati’ in his hand. Accused Shawkat Ali Mollah had a sharp ‘chhan’ in his hand and many others had fire arms. That from inside the house also fire was opened. From before 4.00 P.M. police came to the place of occurrence. A police officer with a hand mike asked Monwar Ali and his companions to drop their arms assuring that they would reach Monwar Ali and others to their home. Responding to that call of police, two guns, a small arms and a packet were dropped. The police then entered into the house. When Monwar Ali and others came out of the house police handcuffed them and took them near bamboo clump. At that time the companions of the accused Aiyub Ali snatched away Monwar Ali, Anwar Ali and Badsha from the custody of police. Subsequently he saw the dead bodies. This witness has identified accused Aiyub Ali Chairman on dock.

The P.W. 16 Abdul Malek Talukder, an Inspector, Health and Family Planning, deposed to the effect that on 07.07.2001 at 9.30 A.M. he went to Uttar Kamar Gaon village to inspect the works of his staff and while he was working in the field at 11.00 A.M. he heard that scuffle and firing was going on and saw also many people to go towards Bagra village. He also then went there and saw many people at the house of Siraj Bepari. That the people were telling that Monwar Ali chairman and his companions were staying in the house of Siraj Bepari. He heard the sound of firing. In the evening he came to learn that murders took place and the dead bodies were taken to Sreenagar Police Station. He went to Sreenagar Police Station and saw the dead bodies of Monwar Ali chairman, Badsha, Alauddin, Hashem Kazi and another. S.I. Iqbal Bahar of Sreenagar Police Station asked him to put his signature in the inquest reports and he put his signature in the inquest reports. As per identification of this witness those inquest reports have been marked exhibits.

The P.W.17 Md. Belayet Hossain, inspector of police was the officer-in-charge of Sreenagar Police Station on 12.07.2002. This witness has deposed to the effect that on that day, on the basis of the computer-typed FIR of the informant, he started the case and entrusted the charge of the investigation of the case with S.I., D.M.P. Belayet Hossain. This witness has proved FIR form which has been marked as exhibit-11.

The P.W.18 Md. Akter Hossain is a photo journalist who deposed to the effect that on the date of occurrence he was attached to ‘Ajker Kagoj’ as a photo journalist and on that day, being informed about the occurrence he along with one Sumon went to the place of occurrence at about 3.00 P.M. and took some photographs of the occurrence some of which were published in the daily newspaper on the next day. That on 12.01.2002 he gave 30/31 photographs to the CID officer which were seized under a seizure list. As per identification of this witness 31 pieces of photographs were marked as material exhibit-1 series.

The P.W.19 Md. Sakhawat Hossain, S.I. of police is a formal witness who put his signature in the seizure list-the exhibit-12 as an witness. This witness stated that by this seizure list inspector of police Md. Nasir Uddin Paik seized volume No.11 of 2001 of G.D. Entry, wireless message No.393 dated 07.07.2001 and gun license of the year 2002 of Sreenagar Police Station and subsequently those seized articles were given in his jimma as per jimmanama-the exhibit-13.

The P.W.20 A.S.I. Md. Abu Taher, another formal witness who put his signature in the seizure list-exhibit-12 and also in the jimmanama-the exhibit-13 as witness.

The P.W.21 Ahmed Ali is another formal witness who deposed to the effect that on 12.01.2002 he along with witness Pintoo went to the office of CID and saw there journalist Akhter Hossain from whom 31 pieces of photographs were seized under a seizure list-the exhibit-14 and he put his signature in that exhibit-14 as witness. This witness has identified also those seized 31 pieces of photographs before court.

The P.W.22 A.S.I. Mozaffar Hossain another formal witness has proved the G.D. Entry No.194 of Sreenagar Police Station stating to the effect that on 07.07.2001 he was attached to Sreenagar Police Station as an A.S.I. and on that date at 11.00/11.15 A.M. a retired police constable Abdul Aziz and Jainal Mokter of Bagra came to the police station by a bay taxi and informed him that exchange of firing was going on between the parties of the ex-chairman and present chairman at Bagra and he then informed charge officer S.I. Iqbal Bahar of the matter whereon he made G.D. Entry No.194 of Sreenagar Police Station at 11.55 A.M. and started for the place of occurrence with police force. As per identification of this witness the G.D. Entry No.194 dated 07.07.2001 has been marked as exhibit-15.

The P.W.23 S.I. of police Md. Nasir Uddin Paik is the investigating officer of this case. This witness has deposed to the effect that on 30.10.2001 he was attached to C.I.D. Bangladesh, Dhaka as an Inspector. On that date as per instruction of the police head quarter and CID head quarter he took up the charge of investigation of this case from the previous Investigating Officer S.I. D.M. Belayet Hossain. The material part of the evidence of this investigating officer is that during investigation he perused the diary of the previous investigating officer and   visited the place of occurrence, examined the witnesses including the informant and recorded their statements as per section 161 of the Code of Criminal Procedure, seized alamats as per seizure list and after completion of investigation, as prima facie case was made out against 108 accused persons including accused Aiyub Ali and some officials, namely, S.I. Iqbal Bahar Khan, S.I. D.M. Belayet Hossain, S.I. Rafiqul Alam, A.S.P. Md. Nazam Uddin Chowdhury, Additional S.P. A.K.M. Shahjahan, S.P. Omul Bhuson Barua, the then T.N.O. K.M. Kabir Ahmed, 1st Class Magistrate Reazul Karim, A.C. Land Abu Momtaz Uddin, Senior Assistant Commissioner Md. Shafiqur Rahman and the then D.C. Most. Kamrun Nessa Khanam he submitted the memorandum of evidence on 04.06.2003 for submission of charge sheet. He submitted required papers to get sanction to proceed against the public servants. He arrested the accused persons. In the meantime, as he was transferred, he handedover the docket and alamats of the case as per the instruction of his higher authority to the subsequent investigation officer inspector Amirul Islam on 15.10.2003. This witness has been cross-examined at length on behalf of the accused persons.
These are the evidence which the prosecution has adduced in this case to prove the charges framed against the accused persons. In this judgment we are to consider only whether the evidence adduced in this case justify the conviction and sentences imposed on the accused-appellants before us.

Before scanning the evidence of the prosecution witnesses we require to address some legal points raised on behalf of the accused-appellants.

It has been argued from the side of the accused-appellants that in this case the F.I.R. was lodged long 5 days after the alleged occurence and this long delay in lodging the F.I.R. has reasonabley made the prosecution case doubtfull. The learned Advocates for the accused-appellants have made submissions to the effect that there are series of decisions where it was held that a belated F.I.R. always carrys the chance of fabrication and that the delay in lodging the FIR without explaining suffcient cause renders the prosecution case doubtfull.

It is true that the delay in lodging the FIR raises suspicion about the truth of the prosecution case, but there may be various reasons for causing delay in lodging the F.I.R. Without considering the reasons of delay in lodging the F.I.R. the courts should not doubt the truth of the prosecution case only for the fact that there was delay in lodging the F.I.R. Mere delay in lodging the FIR should not be a ground for disbelieving the prosecution case if that delay occurred for any reasonable cause. Considering the facts and circumstances of a particular case the court is to decide whether the delay in lodging the F.I.R. is fatal and whether this delay in lodging the F.I.R. makes the prosecution case doubtfull.

In the present case the delay in lodging the F.I.R. has been explained in the very F.I.R. The facts and circumstances which have come out from the evidence of the prosecution witnesses also have explained the delay in lodging the FIR. It has been proved in this case that the husband and another near relative of the informant were murdered and 2 others of her near relatives were critically injured in the occurrence of this case and both those injureds were in hospital under treatment for a long time. The informant has stated also both in the F.I.R. and in evidence before court that after this occurrence she, being highly shocked, got senseless and was not in a position to lodge the F.I.R. It was also stated that her other near relatives also were abroad at that time. Considering all these facts and circumstances both the trial court and the High Court Division found that the delay of 5 days in lodging the F.I.R. was not fatal to create any doubt about the truth of the prosecution case. Considering the facts and circumstances we also find that in this case the delay in lodging the F.I.R. cannot be a ground for disbelieving the truth of the prosecution case.

It has also been argued from the side of the accused-appellants that the F.I.R. which was lodged 5 days after the occurrence cannot be treated as FIR inasmuch as before lodging of the F.I.R. there was a G.D. entry about this occurrence in the concerned police station and in the circumstances that G.D. entry, being the first information about the occurrence, should be treated as FIR and the subsequent F.I.R. lodged by the informant should be treated as a statement under section 161 of the Code of Criminal Procedure. It appears that the High Court Division has addressed this legal point also adequately and given the right decision. The High Court Division rightly pointed out that the G.D. entry which was lodged in the concerned thana about this occurrence was vague and indefinite and no offence was disclosed in the said G.D. entry and in the circumstances the said G.D. entry could not be treated as an F.I.R. There is no bar in filing a second F.I.R. if the first information about any occurrence given to the police station is vague and indefinite and does not disclose the actual offence committed in that occurence. In the present case the GDE which was made in the concerned police station at the time when the occurrence was still going on does not disclose the offences committed in that occurrence and hence the subsequent F.I.R. stating the offences committed in that occurrence in details is the actual F.I.R. and there is no legal bar in accepting this F.I.R. in the stated facts and circumstances.

The learned Advocates for the accused-appellants have argued also to the effect that in this case the prosecution witnesses were examined by the investigating police officer long several months after the occurrence and this long delay in examining the prosecution witnesses also makes the evidence of these witnesses before court suspicious. But this argument also of the learned Advocates for the accused-appellants is not acceptable in the present facts and circumstances of the case. In this case the P.Ws.2 to 8 are all eye witnesses to the occurrence and two of them were critically injured in the said occurrence. All these P.Ws. have deposed before court narrating the occurrence in details. Some other police constables also have deposed corrobrating these public witnesses and all these prosecution witnesses have been cross-examined at length on behalf of the accused persons, but by cross-examining these witnesses at length their evidence could not be shaken or made unbelievable. In the circusmtances the delayed examination of these prosecution witnesses by the investigating police officer cannot be a reason for disbelieving these witnesses. In the present case it has also come before court that the investigating officer of this case was changed and several other cases also were started over the same occurrence and the police investigated those cases also. In the circumstances the delay committed by the investigating police officer in examining the witnesses of this case cannot be a reason for disbelieving the prosecution witnesses who have deposed before the court on oath in details and have faced the lengthy cross-examination by the learned Counsel of the accused persons. In the stated facts and circumstances we do not find that the delay in examining the witnesses under section 161 of the Code of Criminal Procedure by the investigating officer can be any reason for discarding their evidence before court.

It has also been argued from the side of the accused-appellants that many F.I.R. named and charge sheeted witnesses have not been examined in this case and this fact also makes the prosecution case weak. But we do not accpet this argument also of the learned Counsel for the accused-appellants. There is no law requiring examination of all the F.I.R. named and charge sheeted witnesses before court. Rather it is well established by judicial pronouncements that conviction of accused can safely be based on the evidence of one witness only if his evidence is full, complete and selfcontained and believable. The prosecution is not bound at all to examine all the witnesses mentioned in the F.I.R. or in the charge sheet. In the present case 7 eye witnesses namely, the P.Ws.2 to 8 have deposed before court supporting the prosecution case and if the evidence of these witnesses can be believed as true the non-examination of other FIR named or charge sheeted witnesses is not fatal at all.

The learned Advocates for the accused-appellants have made submissions to the effect also that in this case there are discripancies in between the F.I.R. and the evidence given by the prosecution witnesses before court and that these discrepancies between the FIR and the evidence of the prosecution witnesses makes the prosecution case unbelievable. But we are unable to accept this contention also of the learned Advocates for the accused-appellants. In this case the inforamnt, who lodged the F.I.R. was not the eye- witness to the occurence. Hearing from others she lodged the F.I.R. So it was very natural that in the F.I.R. all the details of the occurrence could not be stated properly and correctly. The evidence of P.Ws.2 to 8-the eye-witnesses to the occurrence are consistent. In the circumstances the discripancy between the F.I.R. story and the evidence of these eye witnesses cannot be any reason for disbelieving the eivdence of these eye-witnesses in this particular case.

The learned Advocates for the accused-appellants have made argument to the effect also that all the alleged eye-witnesses to the occurrence being interested, related and partisan, their evidence cannot be relied upon. It is true that the evidence of the interested and partisan witnesses must be scrutinized and considered cautiously before it is accepted. But the evidence of the interested and partisan witnesses should not be discarded for the reason only that they are partisan and interested witnesses if their credibility is not shaken by the defence. In the present case the P.Ws.2 to 8 though have been blamed to be interested and partisan witnesses by the defence but by cross-examining these witnesses at length the defence could not shake their varacity or make their evidence false or unbelievable. It is now settled by the decisions of the apex courts that the evidence of partisan witnesses need not always be discarded only for the reason of their relationship, when their evidence are found to be reliable that can be basis for convicting the accused. So the argument that the P.Ws.2 to 8 being interested witnesses their evidence cannot be relied on-is not acceptable.

The learned Advocates for the accused-appellants have made arguments to the effect also that there are contradictions and discrepancies among the evidence of the prosecution witnesses and these contradictory and discrepent evidence of the prosecution witnesses make these witnesses untrustworthy and make the prosectuion case also false.

But considering the facts and circums-tances of the present case we do not accept this argument also of the learned Advocates. In the present case the number of accused is more than hundred. Hundreds of people were present in the place of occurrence and wintessed this occurance. In the circumstances it was difficult to pinpoint specifically the role played by each and every accused. So it is most natural that there may occur some discrepencies in the evidence of the prosecution witnesses as to the role played by the accused persons in this occurrence. While sifting the evidence of the prosecution witnesses the courts are to take into consideration the discrepencies also in their evidence, but for making some discrepent statements only their whole evidence should not be discarded and they also should not be treated as untrustworthy.

Now we shall sift the evidence of the prosecution witnesses narrated above.

From the evidence of the prosecution witnesses it appears that in this case there are sufficinet evidence to prove the active involvemnet of the accused-appellant Aiyub Ali in the murder of Monwar Ali, Badsha and Hashem. All the prosecution witnesse 2 to 8-the eye witnesses to the occurrence-have deposed before court to the effect that this accused Aiyub Ali ordered the other accused persons firstly to catch Monwar Ali and his other associates while they were going to Bagra Bazar along the road by the side of the house of accused Aiyub Ali and as per this order the other accused persons and also accused Aiyub Ali himself chased Monwar Ali and his associates and made them confined in the house of Seraj Bepari and kept them confined there for a long period and during that period some of the accused persons entered into that house by breaking open the door and murdered Hashem and subsequently, in the evening, after arrival of police, when Monwar Ali, Badsha, Anwar Ali and Salauddin came out of that house on the asking of police and were handcuffed by police and brought near the bamboo clump the accused Aiyub Ali gave order to other accused persons to kill them and he himself also dealt a ‘chapati’ blow on the back of head of Monwar Ali and then other accused persons started dealing blows on Monwar Ali and Badsha with different weapons. These evidence of the prosecution witnesses could not be shaken by cross-examining the witnesses at length. Some of the police witnesses also, who came to the place of occurrence, namely, P.Ws.9 and 10 have supported the prosecution case by deposing to the effect that Monwar Ali and his other associates were kept confined in the house of Siraj Bepari and subsequently when, on the asking of the police, Monwar Ali and his associates came out of that house the associates of accused Aiyub Ali snatched away them from police and killed them. These evidence of the police constables has strongly supported the prosecution case that accused Aiyub Ali was the gang leader and he ordered his other accomplices to kill Monwar Ali, Badsha and Hashem. From the side of the accused persons though question has been raised as to the credibility of P.Ws.2 to 8 but considering the facts and circumstances of the case we do not find the evidence of these witnesses unbelievable or false. Admittedly the occurrence of murder of Monwar Ali, Badsha and Hashem took place in broad daylight in presence of hundreds of people. However these eye-witnesses to the occurence, the P.Ws.2-8, have been cross-examined at length by the learned Advocates for the accused persons, but their veracity could not be shaken by the lengthy cross-examination. So, we do not accept the contention of the learned Advocates for the accused-appellants that these P.Ws.2-8 are not trustworthy for the reason only that they are interested and partisan witnesses. It has been contended from the side of the accused persons that deceased Monwar Ali and his associates, being armed with fire arms, went to the place of occurrence to commit any crime and at that time the agitated public confined them in the house of Seraj Bepari and ultimately those mob murdered them. But considering the evidence adduced before court we do not find this defence contention acceptable at all. It should be mentioned here that before us arguments have been made from the side of the accused persons to the effect that deceased Monwar Ali and others murdered Alauddin, the son of accused Ayesha and brother of accused Mizan, Nizam, Nazir and Badsha and at this the accused persons, being highly shocked and provocated, might have committed this occurence and in the circumstances this case does not come within the ambit of section 302 of the Penal Code, rather it comes within the ambit of section 304, part-II of the Penal code. This very defence argument, rather, supports the prosecution case that the accused Aiyub Ali and his other associates killed Monwar Ali, Badsha and Hashem. Even, if it is believed that deceased Monwar Ali and his associates went to the place of occurrence to commit some crime and they were miscreants, but that does not absolve the accused Aiyub Ali and his other associates from the charge of murder of Monwar Ali and his associates. The evidence adduced by the prosecution has proved sufficiently that accused Aiyub Ali along with his associates snathched away the deceased Monwar Ali and Badsha and victims Anwar Ali and Salauddin from the hands of police when they were handcuffed and accused Aiyub Ali then gave order to other accused persons to kill them and he (accused Aiyub Ali) himself dealt a ‘chapati’ blow on the vital part of body of deceased Monwar Ali. The execuse that deceased Monwar Ali and his associates were miscreants cannot be accepted as a ground for absolving the accused Aiyub Ali and other accused persons from the charge of murder. The brutal murder of 3 persons and also assaulting of two other persons mercilessly with the intention to kill them in braod daylight in presence of high officials of Administration and police cannot be taken leniently under any circumstances.

It was argued that some of the prosecution witnesses have deposed to the effect that accused Aiyub Ali had a gun in his hand and in the circumstances the evidence that accused Aiyub Ali dealt a ‘chapati’ blow on the back of head of Monwar Ali is not believable at all. But we do not accept this argument also. It cannot be accepted that a person who has a gun in one of his hands cannot hit any person with any other kind of arms. It might be that accused Aiyub Ali, at that very moment, took that ‘chapati’ from any other accused person and hit Monwar Ali with that ‘chapati’. Where there are sufficient evidence to prove that accused Aiyub Ali dealt a ‘chapati‘ blow on the back of head of Monwar Ali and where the postmortem examination report of the dead body of deceased Monwar Ali supports these evidence we cannot disbelieve these evidence only for the reason that some of the witnesses deposed that the accused Aiyub Ali was carrying a gun at the time of occurrence.

Though there is no specific evidence to prove that accused Aiyub Ali himself dealt any blow on deceased Badsha and Hashem, there are ample evidence to prove that accused Aiyub Ali along with other accused persons chased Monwar Ali and others and made them confined in a house and then murdered Hashem in that house and subsequently as per order of accused Aiyub Ali, the other accused persons murdered Badsha. So in the circumstances accused Aiyub Ali was rightly convicted and sentenced under sections 302/109 of the Penal code for killing Badsha and under sections 302/149 of the Penal Code for killing Hashem.

From the side of the accused-appellant Aiyub Ali arguments have been made to the effect also that in this case the evidence of the prosecution itself have proved that the accused persons, being highly shocked and provocated by the murder of Alauddin, committed this occurrence and in the circumstances this case will not come within the abmit of section 302 of the Penal code, rather it will come within the ambit of section 304 part-II of the Penal Code. But considering the evidence on record we are unable to accept this argument also. The evidence adduced in this case has proved sufficiently that accused Aiyub Ali along with his associates chased Monwar Ali and his associates while they were going along the road by the side of the house of accused Aiyub Ali and made them confined in the hosue of P.W.2 Srijon Bepari and during that period, at one stage, they entered into that house by breaking open the door and tried to drag out them and at that time Alauddin was murdered. So, in these facts, circumstances, the plea of accused-appellants that being highly shocked and provocated they killed Monwar Ali and others and as such these killings do not fall within the purview of sction 302 of the Penal code, rather these fall within the purview of section 304 part-II of the Penal Code-is not acceptable at all even if it is believed that Alauddin was killed by Monwar Ali and his associates.

Mr. Sarwar Ahmed-the learned Advocate for the condemned prisoner Aiyub Ali has made submissions to the effect also that this accused-appellant Aiyub Ali has been detaining in the condemned cell for long 10 years with mental agony of death and now this Division, for the ends of justice, may show some mercy to him and may commute his sentence of death to a sentence of life imprisonment. But considering the very offence of cruel murders of as many as 3 persons committed by this accused-appellant Aiyub Ali we do not think that he can be shown any mercy at all.

However, considering the facts, circumstances and evidence on record we find that both the trial court and the High Court Division rightly convicted this accused appelalnt Aiyub Ali under sections 302/1`09 of the Penal code for killing Monwar Ali and Badsha and under sections 302/149 of the Penal Code for killing Hashem. The High Court Division has upheld the sentence of death of accused Aiyub Ali awarded by the trial court for killing Monwar Ali only and awarded him 2 separate sentences of life imprisonment for killing Badsha and Hashem. We find no reason to interfere with the judgment and order of the High Court Division so far as it relates to the accused-appellant Aiyub Ali.

Accused Md. Mahfuzur Rahman @ Mahfuz son of Aiyub Ali has been convicted for killing Monwar Ali and Badsha and has been awarded 2 separate sentences of life imprisonmnet with fine for each of the killings with a direction that both the sentences will run concurrently. From the above narrated evidence of the proseuction witnesses it appears that all the P.Ws.2 to 8-the eye witnesses to the occurrence-have deposed stating the active involvement of this accused-appelalnt Md. Mahfuzur Rahman @ Mahfuz son of Aiyub Ali in the murder of Monwar Ali and Badsha. These evience prove that this accused-appelant Mahfuz son of Aiyub Ali was carrying a chinese axe during the whole occurrence and while Monwar Ali, Badsha and others were brought out of the house of Srijon Bepari by police and were handcuffed this accused Mahfuz son of Aiyub Ali also along with other accused persons started assulting them.

The P.W.3 Salauddin, an injured witness, has deposed specifically that this accused-appelalnt Mahfuz dealt chinese axe blows to Monwar Ali. The P.W.4 Md. Anwar Ali-another injured witness also has specifically deposed that this accused-appelalnt Mahfuz dealt chinese axe blows to deceased Monwar Ali. This witness deposed to the effect also that the accused persons who assulted Monwar Ali dealt sharp cutting weapon blows on Badsha also. The P.W.5 Saifur Rahman Pintoo-another eye-witness to the occurrence also has specifically deposed to the effect that accused-appellant Mahfuz had chinese axe in his hand and he dealt chinese axe blows to both Monwar Ali and Badsha. The P.W.6 Md. Shahabuddin Khan, the Headmaster of Bagra Swarup Chandra Pilot High School, also has deposed to the effect that this accused-appellant Mahfuz kept dealing chinese axe blows to Monwar Ali. The P.W.7 Abul Kalam Azad-another eye witness to the occurrence also has deposed to the effect tha this accused Mahfuz dealt sharp cutting weapon blows on deceased Monwar Ali and also on Badsha, Anwar Ali and Salauddin. The P.W.8 Md. Shahin, another eye-witness also has deposed to the effect that this accused appelalnt Mahfuz kept dealing chinese axe blows on Monwar Ali. Considering these evidence of the prosecition witnesses we find that the trial court and the High Court Division rightly found this accused appellant Mahfuz son of Aiyub Ali guilty of killing of Monwar Ali and Badsha and therefore rightly convicted him under section 302 of the Penal Code. The High Court Division, however, has commuted the sentence of death awarded by the trial court to this accused-appelalnt Mahfuz to imprisonment for life as already mentioned above. We find no reason to intefere with the findings and decision of the High Court Division as regrds this accused-appellant Mahfuz son of Aiyub Ali also.

In the cicumstances the Criminal Appeal No.26 of 20012 filed by the condemned prisoner Md. Aiyub Ali chairman and his son accused-appellant Md. Mahfuzur Rahman @ Mahfuz is liable to be dismissed.

Accused Faruq Gazi was awarded death sentence by the trial court for killing Monwar Ali, Hashem and Badsha. The High Court Division has commuted the death sentence of this accused-appellant Faruq Gazi to imprisonment for life for killing Monwar Ali and Badsha but upheld his death sentence awarded for killing Hashem. It has been pointed out before us that though according to the prosecution witnesses this accused-appellant Faruq Gazi killed Hashem by firing a gun shot but the postmortem examination report of Hashem does not show at all that there was any bullet injury on the dead body of Hashem. The learned Advocate for the accused-appellant Faruq Gazi has contended that the postmortem examination report of deceased Hashem makes the allegation of killing Hashem against this accused-appelant Faruq Gazi false. The learned Depty Attorney General has made submissions to the effect that, in fact, the postmortem examination report, which bears the name of deceased Hashem, actually was not of the dead body of Hashem but the other postmortem examination report of an “unknown person” was actually of Hashem and this postmortem examination report shows that there were bullet injuries on that dead body. But this argument of the learned Deputy Attorney General cannot be accepted at this stage. There is no cogent evidence or materials before us to prove that the postmortem examination report which bears the name of Hashem actually was not of Hashem, rather the postmortem examination report of an “unknown person” actually was of Hashem. There is no evidence before us to the effect that an unknown person also was killed in that occurrence by assaulting with weapons other than fire arms. One Ismail Gazi was killed in that occurrence, but admittedly he was killed by gun shot. So, we cannot accept the contention of the prosecution that the postmortem examination report of Hashem was not actually of Hashem, but that was of an unknown person. In the circumstances we accept the defence contention that the postmortem examination report of the dead body of Hashem does not suppoprt the prosecution case that this accused appellant Faruq Gazi murdered Hashem by gun shot. However, this accused-appellant Faruq Gazi has been found guilty for killing of Monwar Ali and Badsha also and it appers that there are sufficient evidence on record to prove that this accused-appelalnt Faruq Gazi took active part in killing Monwar Ali and Badsha. The P.W.3 and P.W.4-the two injured witnesses have deposed to the effect that on the order of accused Aiyub Ali this accused- appellant Faruq Gazi along with others dealt sharp cutting weapon blows to both Monwar Ali and Badsha. The other eye witnesses also have deposed to the effect that the other accused persons assulted Monwar Ali and Badsha with sharp cutting weapons. Considering the postmortem examination report of deceased Hashem we though do not find this accused- appellant Faruq Gazi guilty of the offence of commtting murder of Hashem but considering the other evidence stated above we find that both the trial court and the High Court Division rightly found this accused-appellant Faruq Gazi guilty of the offence of committing murder of Monwar Ali and Badsha. We, therefore, affirm the conviction and sentences of life imprisonment of this accused-appellant Faruq Gazi for committing murder of Monwar Ali and Badsha.

Criminal Appeal No.27 of 2012 filed by the accused-appellant Faqur Gaiz, therefore, deserves to be allowed in part.
Accused-appellant Hashem has been convicted under sections 302/109 of the Penal Code and sentenced to imprisonment for life for killing Monwar Ali. This accused-appellant has been further convicted under sections 307/109 of the Penal Code and sentenced to rigorous imprisonmnet for 7 years for making attempt to commit murder of Anwar Ali and Salauddin. There is a direction that both the sentences will run concurrently.

From the above narrated evidence of the prosecution witnesses it appears that there are sufficient evidence to prove both the charges against this accused-appellant Hashem. The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepari has deposed to the efect that this accused-appellant Hashem along with other accused persons entered into his house by breaking door and tried to drage out Badsha. This witness has deposed further that this accused-appellant Hashem had a big ‘chhan’ in his hand and he dealt blows on the chest of Monwar Ali. The P.W.3-Md. Salauddin, one of the injured witnesses, has deposed to the effect that this accused Hashem along with other accused persons chased them and when they took shelter in the hosue of Srijan Bepari this accused Hashem along with others entered into that hosue by breaking door and tried to drage out Badsha. This P.W.3 futher deposed that this accused Hashem delat ‘chhan’ blows on deceased Monwar Ali. This P.W.3 has deposed also to the effect that that the accused persons who assaulted Monwar Ali assaulted him also with sharp cutting weapons and stick. The P.W.4 Anwar Ali, another injured witness, also has deposed to the effect that this accused-appellant Hashem along with others chased them and while they took shelter in the house of Srijan Bepari this accused-appellant Hashem along with some others entered into that house by breaking door and tried to drage out Badsha. The P.W.4 has stated also that this accused-appellant Hashem dealt ‘chhan’ blows on Monwar Ali. This witness stated further that the accused persons who assaulted Monwar Ali dealt blows on Salauddin and on him also. The P.W.5, another eye witness of the occurrence, also has deposed that this accused-appellant Hashem dealt ‘chhan’ blows on Monwar Ali.

Considering the above stated evidence adduced by the prosecution we find that both the trial court and the High Court Division rightly found this accused-appellant Hashem guilty under section 302 of the Penal Code and rightly convicted and sentenced him to imprisonment for life for killing Monwar Ali and also rightly convicted him furhter under section 307 of the Penal Code and sentenced him to 7 years rigorous imprisonemnt for making attempt to commit murder of Anwar Ali and Salauddin. We find no reason to intefere with these findins and decision of the courts below.

The Criminal Appeal No.31 of 2012 filed by this accused-appellant Hashem is, therefore, liable to be dismissed.
Accused-appellant Shafiul Azam Dafader has been convicted under sections 302/109 of the Penal Code for killing Monwar Ali and Badsha and has been awarded two separate sentences of life imprisonmnet for both the killings and has been further convicted under sections 307/109 of the Penal Code and sentenced to rigorous imprisonmnet for 7 years for making attempt to commit murder of Anwar Ali and Salauddin. There is a direction that all the 3 sentences will run concurrently.

On scrutiny of the above narrated evidence it appears that all the 7 eye witnesses to the occurrence, namely, the P.W.2 to P.W.8 have deposed stating the active involvement of the accused-appellant Shafiul Azam Dafader in the alleged occurrence. The P.W.2 has deposed that at the time of occurrence this accused-appellant Shafiul Azam Dafader had a big ‘dao’ in his hand. The P.W.3 has deposed to the effect that this accused-appellant Shafiul Azam Dafader along with other accused persons chased them. The P.W.4 has deposed to the effect that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali. The P.W.5 also has deposed that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali and Badsha. The P.W.6 has deposed that this accused-appellant Shafiul Azam Dafader dealt indiscriminate blows on Monwar Ali, Badsha and Salauddin. The P.W.7 also has deposed to the effect that this accused-appellant Shafiul Azam Dafader dealt sharp cutting weapon blows on Monwar Ali, Badsha and also Anwar Ali and Salauddin. The P.W.8 has deposed that this accused-appellant Shafiul Azam Dafader dealt ‘chhan’ blows on Monwar Ali.

Considering the above stated evidence adduced by the prosecution witnesses we find that the trial court and the High Court Division rightly convicted and sentenced this accused-appellant Shafiul Azam Dafader for killing Monwar Ali and Badsha and also for making attempt to commit murder of Anwar Ali and Salauddin.

The Criminal Appeal No.25 of 2012 filed by this accused-appellant Shafiul Azam Dafader is, therefore, liable to be dismissed.
Accused-appellant Showkat Ali has been convicted under sections 302/109 of the Penal Code for killing Monwar Ali.
This accused-appellant Showkat Ali has not been named in the FIR.
The P.W.2-Alhaj Sirajuddin Bepari @ Srijan Bepari-an eye witness to the occurrence also did not name this accused-appellant Showkat Ali.
The P.W.3 has deposed to the effect that this accused-appellant Showkat Ali dealt sharp cutting weapon blows on Monwar Ali.
The P.W.4 has deposed only that this accused-appellant Showkat Ali along with other accused persons chased them while they were going by the side of the house of accused Aiyub Ali.
The P.Ws.5, 6 and 8 have deposed only to the effect that this this accused-appellant Showkat Ali along with other accused persons set the house of Srijan Bepari on fire.
The P.W.7 did not say anything implicating this accused-appellant Showkat Ali in the alleged occurence.
So it appears that save and except P.W.3 only none of the other prosecution witnesses has stated anything in support of the charge of murder of Monwar Ali brought against this accused-appellant Showkat Ali. It has already been pointed out above that in the FIR also this accused-appellant Showkat Ali has not been named.
Considering the evidence on record we find that the High Court Division was not justified at all in maintaining the conviction and sentence of this accused-appellant Showkat Ali. In view of the evidence on record our considered opinion is that this accused-appellant Showkat Ali is entilted to get benefit of boubt and, therefore, to be acquitted of the charge under sections 302/109 of the Penal Code.
The Criminal Appeal No.30 of 2012 filed by this accused-appellant Showkat Ali Mollah, therefore, deserves to be allowed.
Accused-appellant Mannan Shah has been awarded 3 separate sentences of life imprisonment for killing Monwar Ali, Hashem and Badsha with a direction that all the 3 sentences will run concurrently.

We have scrutinized the evidence adduced by the prosecution as regards this accused-appellant Mannan Shah. It appears that the P.W.2 has deposed only to the effect that this accused-appellant Mannan Shah fired with a cut rifle from out side of his house while the deceased and others took shelter in that house. The P.W.3 has deposed to the effect that this accused-appellant Mannan Shah along with other accused persons chased them and while they took shelter in the house of Srijan Bepari this accused-appellant Mannan Shah fired with a gun through the window of that hosue. This P.W.3 has deposed fruther that this accused-appellant Mannan Shah jumped on Monwar Ali and Badsha. The P.W.4 has deposed to the effect that this accused-appellant Mannan Shah chased them and fired with a cut rifle. This witness has deposed also that this accused-appellant Mannan Shaha dealt ‘chhan’ blows on Monwar Ali and jumped upon Badsha and dealt sharp cutting weapon blows on him. The P.W.5 has deposed to the effect only that this accused-appellant Mannan Shah opened fire through the window of the hosue of Srijan Bepari while the deceaseds took shelter in that house. The P.Ws.6 and 7 also have deposed to the effect that this accused-appellant Mannan Shah fired through the window of the house of Srijan Bepari while the deceased and others took shelter there. The P.W.8 did not name this accused-appellant Mannan Shah.

So it appears that out of 7 eye witnesses the P.Ws.3 and 4 only have deposed in support of the charges brought against this accused-appellant Mannan Shah. The P.W.3 has deposed that this accused-appellant Mannan Shah jumped on Anwar Ali and Badsha and P.W.4 has deposed that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali and jumped upon Badsha and dealt sharp cutting weapon blows on him. The P.W.3 did not say that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali. Other P.Ws. though have deposed to the effect that this accused-appellant Mannan Shah fired through the window of the house of Srijan Bepari, but none of the witnesses has stated anything to the effect that the shot fired by the accused-appellant Mannan Shah hit anybody. It has been pointed out above that the postmortem examination report of the dead body of deceased Hashem does not show that there was any bullet injury on that dead body. So it appears that there is practically no evidence to prove that this accused-appellant Mannan Shah had any involvement in the murder of Hashem. As regards the charge of killing Mownar Ali brought against this accused-appellant Mannan Shah the only evidence is of P.W.4-who deposed to the effect that this accused-appellant Mannan Shah dealt ‘chhan’ blows on Monwar Ali. But none of the other prosecution witnesses, even the P.W.3 also deposed to the effect that this accused-appellant Mannan Shah took part in the murder of Monwar Ali by dealing ‘chhan’ blows on him. In the circumstances our considered opinion is that the charge of killing Monwar Ali brought against this accused-appellant Mannan Shah also has not been proved beyond all reasonable doubet and in the circumstances this accused-appellant Mannan Shah is entilted to get benefit of boubt and be acquitted from this charge also.

As regards the charge of killing Badsha brought against this accused-appellant Mannan Shah it appears that out of 7 eye witnesses the P.W.3 has deposed only to the effect that this accused-appellant Mannan Shah jumped on Anwar Ali and Badsha. This witness did not say that this accused-appellant Mannan Shah dealt any blow with any weapon on deceased Badsha. The P.W.4 only has deposed to the effect that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. Out of 7 eye witnesses of the occurrence the P.W.4 only has deposed to the effect that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. The other eye witnesses of the occurrence did not corroborate the evidnece of the P.W.4 that this accused-appellant Mannan Shah dealt sharp cutting weapon blows on Badsha. Considering the evidence of P.Ws.2 to 8 we find that the proseuction could not prove the charge of killing Badsha also against this accused-appellant Mannan Shah beyond all reasonable doubt.

In the circumstances we find that this accused-appellant Mannan Shah is entilted to be acquitted from all the 3 charges of killing of Monwar Ali, Hashem and Badsha.
The Criminal Appeal No.32 of 2012 filed by this accused-appellant Mannan Shah, therefore, deserves to be allowed.
Accused-appellant A. Salam @ Ketu Salam has been convicted for killing Hashem and Badsha and has been awarded 2 separate sentences of life imprisonment for both the killings with a direction that both the sentences will run concurrently.

From the baove narrated evidence of the prosecution witnesses it appears that as regards this accused-appellant A. Salam @ Ketu Salam-the P.W.2 has deposed only to the effect that this accused-appellant A. Salam @ Ketu Salam fired with a gun from out side targating his house while the deceaseds and others took shelter in that house. The P.W.3 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam chased them and opened fire with rifle through the witndow of the house where they took shelter. The P.W.4 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam along with others chased them and also fired with a gun through the window of the house where they took shelter and that gun shot hit Badsha. The P.W.5 has deposed to the effect only that this accused-appellant A. Salam @ Ketu Salam opened fire through the window of the hosue where the deceaseds took shetler. The P.W.6 has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam along with other accused persons chased the victims and surrounded the house of Srijan Bepari where the victims took shelter and opened fire with a gun from out side of that house. This P.W.6 deposed also that this accused-appellant A. Salam @ Ketu Salam assaulted Badsha and Salauddin also. The P.W.7 deposed to the effect only that this accused-appellant A. Salam @ Ketu Salam opened fire through the window of the house where the victims took shelter. The P.W.8 did not utter the name of this accused-appellant A. Salam @ Ketu Salam.

So, it apperars that the P.W.4 only has deposed to the effect that the gun shot fired by this accused-appellant A. Salam @ Ketu Salam hit Badsha. But the postmortem examination report of the dead body of deceased Badsha does not show that there was any bullet injury on that dead body. The P.W.6 only though has deposed to the effect that this accused-appellant A. Salam @ Ketu Salam assaulted Badsha but no other prosecution witnesses have corrobo-rrated this statement of P.W.6. In view of the above stated evidence adduced by the prosecution our considered opinion is that none of the charges of killing Hashem and Badsha brought against this accused-appellant A. Salam @ Ketu Salam has been proved beyond all reasonable doubt and as such this accused-appellant A. Salam @ Ketu Salam is entilted to get benefit of doubt and, therefore, to be acquitted of both charges.
The Criminal Appeal No.35 of 2012 filed by this accused-appellant A. Salam @ Ketu Salam, therefore, deserves to be allowed.

Accordingly it is ordered that the Criminal Appeal No.25 of 2012 be dismissed. The conviction and sentences imposed on this accused-appellant Shafiul Azam Dafader by the impugned judgment and order be hereby affirmed.
The Criminal Appeal No.26 of 2012 is dismissed. The conviction and sentences including the death sentence awarded against the accused-appellant Aiyub Ali be upheld and affirmed. The conviction and sentence of the other accused-appellant Mahfuz son of Aiyub Ali also be upheld.

The Criminal Appeal No.27 of 2012 is allowed in part. The conviction and sentences of life imprisonemnet with fine of the accused-appellant Faruq Gazi under sections 302/109 of the Penal Code for killing of Monwar Ali and Badsha be upheld. However, his conviction and sentence of death for killing of Hashem be set aside. He be acquitted of the charge under section 302/149 of the Penal Code for killing of Hashem.

This convicted accused-appellant Faruq Gazi is to be shifted from condemned cell to normal cell.

The Criminal Appeal No.30 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant Showkat Ali Mollah be set aside and he be acquitted of the charge under sections 302/109 of the Penal Code for killing of Monwar Ali. The accused-appellant Showkat Ali Mollah be set at liberty at once if not wanted in connection with any other case.

The Criminal Appeal No.31 of 2012 be dismissed. The conviction and sentences imposed on this accused-appellant Hashem by the impugned judgment and order be upheld.

The Criminal Appeal No.32 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant Mannan Shah be hereby set aside and he be acquitted of all the charges under sections 302/109 and 302/149 of the Penal Code. The accused-appellant Mannan Shah be set at liberty at once if not wanted in connection with any other case.

The criminal Appeal No.33 of 2012 has abated as already mentioned above.

The Criminal Appeal No.35 of 2012 be allowed. The impunged judgment and order so far as it relates to the accused-appellant A. Salam @ Ketu Salam be set aside and he be acquitted of the charges under sections 302/109 and 302/149 of the Penal Code. The accused-appellant A. Salam @ Ketu Salam be set at liberty at once if not wanted in connection with any other case.

Jail Petition No.20 of 2012 filed by the condemned prisoner Aiyub Ali be dismissed.

Ed.

Shafiullah and others Vs. Sultan Ahmed Mir

Case No: Civil Appeal No.151 of 198

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Abdul Wadud Bhuiyan,Mr. T. H. Khan,,

Citation: 37 DLR (AD) (1985) 193

Case Year: 1985

Appellant: Shafiullah and others

Respondent: Sultan Ahmed Mir

Subject: Property Law,

Delivery Date: 1985-09-05

Shafiullah and others Vs. Sultan Ahmed Mir
37 DLR (AD) (1985) 193

Supreme Court
Appellate Division
(Civil)

Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J

Shafiullah and others .............Appellants
Vs.
Sultan Ahmed Mir being dead his heirs: Mojibur Rahman Mir and others………Respondents

Judgment
September 5, 1985.

The Bengal Land Revenue Sales Act, 1859 (Act No. XI of 1859)
Section 37
Purchaser at a revenue sale of a revenue-paying estate-Right to annul encumbrance

Sale of a revenue paying estate for recovery of the arrear of revenue is governed The Bengal Land Revenue Sales Act, 1859 (Act No. XI of 1859). Section 37 of the Act providing the right of the purchaser of such as estate including the right to annul all encumbrances. Section 37 elaborates the consequences of a revenue sale…………….(9)

An occupancy right

An occupancy right is not an encumbrance but is a protected interest and it remains unaffected by the sale of its superior interest………….(10)

The Bengal Tenancy Act, 1885 (VIII of 1885)
Section 22 (1)
Doctrine of merger
Complete merger is effected when the entire interest of the proprietor/permanent tenure holder is the same person.

The Bengal Tenancy Act, 1885 (VIII of 1885)
Section 22 (2)
It provides for partial merger which takes place if a co-sharer landlord acquires the raiyati interest under him and his other co-sharer landlords. As to sub-section (3), it prohibits an ijaradar or revenue farmer from acquiring any occupancy right………..(10)

The Bengal Tenancy Act, 1885 (VIII of 1885)
Section 22 (1) (2)

In a case of merger, the landlord holds only the superior interest and can possess the land as a tenant but he has to pay rent for the land in his khas possession for use and occupation of the same.
As provided in the Explanation, a person holding occupancy right in a land does not lose it by becoming a joint proprietor in the land.

The Bengal Tenancy Act, 1885 (VIII of 1885)
Section 3 (17)
‘Bargadar’ ‘adhiar’ are not tenants but they can become Tenants when they are admitted as tenants by the landlords evidenced by any document executed by him or executed in his behalf, or if he has been held as a tenant by a Civil Court…………..(12)

Lawyers Involved:
Khondkar Mahbubuddin Ahmed, Senior Advocate instructed by Md, Aftab Hossain. Advocate on Record—For the Appellants.
T. H. Khan, Senior Advocate instructed by Miah Abdul Gafur, Advocate-on-Record—For the Respondent Nos. 2 to 5.
A.W. Bhuiyan, Additional Attorney General, instructed by A W. Mallik, Advocate-on Record—For the Respondent No. 9.
Ex parte —For the Respondent Nos. 1(a) to 1(g), 7 to 8, 10 to 18, 20, 21(a) to 21(f), 22 to 32, 34 to 48 and 50 to 53.
Exempted from filing substitution application vide Court's order dated 7-8-84—For the Respondent Nos. 19. 33 & 49 is dead.
Struck off vide Court's order dated 20-3-84 —For the Respondent No. 6.

Civil Appeal No.151 of 1983.
(From the judgment dated 24 November 1981 passed by the High Court Division, Dhaka, in First Appeal No. 86 of 1965.)

Judgment

Shahabuddin Ahmed J. - In this appeal the judgment and decree of the High Court Division in First Appeal No. 86 of 1965 has been challenged by the plaintiffs. This arises from Title Suit No. 110 of 1958, renumbered as Title Suit No. 64 of 1959, again renumbered as Title Suit No.15 of 1962, in the Second Court of Subordinate Judge, Comilla. It was a suit, among other things, for declaration of plaintiffs' raiyati right, confirmation of possession and injunction and also for declaration that the relevant C.S. Khatians in favour of the defendants are wrong and without any basis. The suit was decreed by the trial Court by its judgment dated 30 September 1963; on appeal by the defendants, the trial Court's decree was modified and the suit was decreed in part by the impugned judgment of the High Court Division dated 24 November 1981 against which this appeal has been filed by the plaintiffs on special leave granted by us.

2. Case of the plaintiffs is that the suit land measuring 7.33 acres was an occupancy raiyati which was originally held by Mohar Ali and Rahimuddin. It was under a Howla-interest known as Howla Karimuddin which was held by Ahmad ullah Dewanji. This Howla was under a Sikimi Taluk known as "Taluk Akber Chowdhury" which was recorded as Touzi No.302 of Pargana Tora of the Comilla Collcctorate. At a later stage the Touzi was renumbered, because of an arrangement between the co-sharers landlords, as Touzi No.3414. Plaintiffs are the heirs of Golam Rahman, one of the three sons of the Howlader, Ahmadullah Dewanji. Golam Rahman purchased the entire raiyati interest from Mohar Ali and Rahimuddin by a registered kabala, Ext.7, dated 22 Poush 1311 B.S., corresponding to 5 January 1905 AD and held it as a raiyat under his father who held the superior Howla-interest, and after the death of his father, he held the raiyati right under the Howladers, namely, heirs of Ahmadullah Dewanji including himself and these facts were duly recorded in the C.S. Khatian No.140 (Ext. 21) which was prepared at a later date. Under this Khatian No.140, there were five khatians namely, Khatians Nos.141 to 145 in which the names of some bargaders of Golam Rahman were recorded. Plaintiffs' case is that by eight barga-kabuliyats those bargaders cultivated the lands for fixed periods and then handed over possession to Golam Rahman, Abdul Gani Mir, predecessor-in-interest of defendants Nos. 2 to 13, was one such bargader and he cultivated the land of C.S. Khatians Nos.141 and 142 under kabuliyat Ext. 1(b); Ahmadullah Munshi, predecessor-in-interest of defendants Nos. 13 to 14, and Jalaluddin, predecessor-in-interest of defendants Nos.37 to 41 barga-cultivated the land of C.S. Khatian No.143 under barga kabuliyats Exts. 1(c), 1(d), 1(e) and 1(f); Maniruddin, predecessor-in-interest of defendants Nos.29 to 34 cultivated the land in C.S. Khatian No.145 under barga kabuliyat Ext.1 (g). The area of Khatian No.140 which is the parent Khatian is 2.69 acres and it was mainly is khas possession of Golam Rahman while the area of the other four khatians is 4.64 acres. As to Khatian No.144, though it is not included in the suit land, it is relevant in this case since it was also given in barga by and returned to, Golam Rahman in the same manner. Case of the plaintiffs is that on the expiry of the terms of these Barga-kabuliyats, the bargaders surrendered their respective professions to Golam Rahman who then cultivated the land as khas, along with the land in parent Khatian No.140.

3. Abdul Gani Mir, four years after he had surrendered his barga land, took an Osat settlement (under-raiyati) of two plots of land, Plot No.199, under Khatian No.140 and Plot No.199/1073 of Khatian No.141, from Golam Rahman by executing an Osat Raiyati kabuliyat dated 25 Sraban 1338 B.S. corresponding to 14 August 1931 AD for a total area of 1.08 acres at a rental of Tk. 10/- per year. He also took the land recorded in Plot No. 870 of Khatian No.141 for the purpose of cultivation on receipt of labour charge of Tk.15/- per year under a kabuliyat dated 9 Sraban 1338 B.S. corresponding to 18 August 1931 AD. Plaintiffs claimed that the lands under both these Kabuliyats were also surrendered on the expiry of their respective terms and then held in khas by Golam Rahman. As to the previous raiyats, Mohar Ali and Rahimuddin, as they had no place of residence after the sale of their occupancy raiyati by the sale-deed, Ext.7, they were permitted by Golam Rahman to reside temporarily in Plot No.365 of Khatian No.140 by raising a kutcha structure; in due course Mohar Ali and Rahimuddin vacated the land.

4. The Touzi recording the Sikimi Taluk "Akbar Chowdhury" was put to sale in 1951 for arrears of revenue due thereupon and was purchased by the Collector in a Revenue-sale under the Bengal Land Revenue Sales Act-Act XI of 1859. The interest of Golam Rahman, an occupancy-raiyati, which was a protected interest, was not subject to annulment under section 37 of the said Act XI of 1859. But some of the defendants, namely, heirs of Ahmadullah Munshi, by fraud and collusion, got fresh settlement of the entire raiyati of Golam Rahman from the Khas Mohal Office some time in 1952 AD. These interests were, also again put to sale in auction under the Public Demands Recovery Act, 1913, and were purchased by one Makram Ali (defendant No.25) in 1954 and immediately after the purchase, were sold to different persons including the heirs of Ahmadullah Munshi. Case of the plaintiffs is that by the Revenue-sale their raiyati interest was not affected, that the Jamabandi on the basis of the annulment is void and consequently, all subsequent proceedings and actions, such as the Certificate sale, followed by series of transfers from these purchasers are void. Plaintiffs claimed to have been in possession of the entire land all-through, but taking advantage of the wrong entry in the C.S. Khatians Nos.14 to 145 which had shown the bargaders as “raiyats", the defendants threatened them with dispossession. Hence they filed the suit claiming the relief’s as stated above.

5. The suit was contested by the heirs of two of the bargaders, namely, Abdul Gani Mir and Ahmadullah Munshi. They are defendants Nos. 3 and 4, sons of Abdul Gani Mir and Defendants Nos.14 to 24, heirs of Ahmadullah Munshi; defendants Nos.26(ka) and 26(kha), who also contested the suit, are transferees of defendant No.14. They filed separate written statements which are, however, mostly identical. Their case is that;
(a) Their predecessors, namely, Abdul Gani Mir and Ahmadullah Munshi, were not bargaders of Golam Rahman but they were actual raiyats holding the land in raiyati interest on payment of fixed rent in kind, such as jute and paddy, and as such the C.S, khatians are correct ;
(b) The purchase of the raiyati by Golam Rahman, son of Ahmadullah Dewanji in 1905 AD., was a benami transaction in that the raiyati was purchased by Ahmadullah Dewanji in the benami of his son Golam Rahman, and as such, the Howla-interest and the raiyati interest merged into Howla interest under section 32(1) of the Bengal Tenancy Act and consequently, it was riot a protected interest;
(c) On the sale of the Touzi, the Howla-interest of Ahmadullah Dewanji from whom Golam Rahman and others inherited it was annulled under section 37 of the Revenue Sales Act;
(d) That the subsequent settlement (Jama-bandi) from the Government in favour of the defendants and others was perfectly lawful and valid;
(e) The auction-sale in favour of Makram Ali for arrears of rent was valid and the transfers from the auction purchaser and other connected transfers are lawful and valid;
(f) They have been in possession all along.

6. Heirs of the other two bargaders, namely, Jalaluddin and Maniruddin, did not contest the suit or file any written statement; but an heir of Ahmadullah Munshi (Defendant No.14) claimed that the interests of Jalaluddin and Maniruddin were surrendered to him.

7. A number of issues were framed in the suit and were considered by the trial Court which, after hearing the parties and considering evidence, both oral and documentary, decreed the suit granting all the remedies asked for except in Plot No.199 of Khatian No.140 and Plot No.199/1072 of Khatian No.141 for an area of 1.08 acres. In this area of the suit land the trial court found that the under-raiyati which was created by Golam Rahman under the Osat kabuliyat dated 8 August 1931 AD ripened into raiyati-interest on the State acquisition of rent-receiving interests. In respect of other lands, the suit was decreed by the trial court on the following findings:
(i) The kabuliyats exts.1(b) to 1(f) on the basis of which the lands in khatians Nos.141, 142, 143 and 145 were possessed by the defendants predecessors for fixed periods were barga-kabuliyats and that in terms of the kabuliyats the lands were surrendered on the expiry of the barga-periods to the raiyat namely, Golam Rahman;
(ii) These C.S. khatians (Nos.141, 142, 143 and 145) recording the bargaders as occupancy raiyats (Raiyat-Stithiban) are palpably wrong having no basis;
(iii) Golam Rahman after re-entering into these lands cultivated them in khas, brought about some changes in their character, such as some of the Nal lands were converted into homestead and a big tank was excavated in one plot;
(iv) The transaction under Ext.7 that is, purchase of the occupancy-raiyati from Mohar Ali by Golam Rahman was not a benami transaction but the raiyati was purchased by Golam Rahman himself with his own money and for his own benefits and consequently, he held the land as a raiyat under the Explanation of section 22 of the Bengal Tenancy Act;
(v) Consequently, Golam Rahman's interest being an occupancy-raiyati was a protected interest and was not affected by the revenue sale of the Touzi in the year 1950;
(vi) All subsequent proceedings taken and actions done including the Jama-bandi, Certificate-sale and transfers by She purchaser are null and void;
(vii) In respect of Plot No. 365 of Khatian No.140, the plaintiffs were disposed by defendant No. 14 after filing of the suit but before the filing of the written statement and as such they are entitled to recovery of khas possession in respect of this plot;
(viii) In the rest of the land, the plaintiffs were found in possession.

8. As stated in paragraph 1, the contesting defendants preferred an appeal before the High Court Division, and a Division Bench of the High Court Division allowed the appeal in part, reversed the decision of the trial court on some points and decreed the suit only in respect of two plots, Plots Nos. 882 and 368, though in the finding portion of the judgment they held that the plaintiffs are entitled to a decree in respect of the entire suit land "excepting khatians Nos.142 and 143". Findings of the High Court Division are the following:
(i) The kabuliyats Exts, 1(b)-1(f) on the basis of which the defendant's predecessors claimed raiyati interest by settlement from Golam Rahman are in fact barga kabuliyats;
(ii) that the lands were surrendered on the expiry of the terms of these kabuliyats;
(iii) that the C.S. khatians are wrong and without any basis;
(iv) that Golam Rahman possessed the lands in khas;
(v) that Certificate sale of 195.2 is valid in respect of Khatian Nos.142 and 143 only in that in respect of Khatian Nos.140 and 145 the arrears of rent were deposited by the plaintiffs and accepted by the Certificate Officer before the sale was confirmed.

9. As it appears clearly, findings Nos. (i) to (iv) are concurrent and in total agreement with those of the trial court. But in respect of the nature of Golam Rahman's interest, whether it was a raiyati interest or a howla interest, and whether by the revenue sale of the Touzi his interest was annulled, there is no finding of the appellate Court which went straight to the subsequent certificate-sale under the Public Demands Recovery Act and held that it was valid in respect of two khatians. This impliedly shows that the appellate Court proceeded on the assumption that the revenue sale was valid. Be that as it may, in this appeal before us filed by the plaintiffs, no cross-appeal has been filed by the defendants either in respect of the concurrent findings which went against them or in respect of possession of the plaintiffs on and after the surrender.

10. Mr. Kh. Mahbubuddin Ahmed, learned Advocate for the appellants, has concentrated his whole arguments on the question as to annulment of the interest of the appellants in consequence of the sale of the Touzi. He has contended that Golam Rahman, through whom the plaintiffs-appellants claim, by purchasing the occupancy raiyati of Meher Ali and Rahimuddin, held it as a raiyat and he did not lose this raiyati interest by subsequently inheriting his father's Howla-interest. His raiyati interest being a protected interest under section 37 of the Revenue Sales Act was not affected by the sale of the Touzi; and consequently all actions subsequent to the alleged annulment are void. In support of this argument the learned Advocate has invoked the "Explanation" to section 22(1) of the Bengal Tenancy Act. Mr. T. H. Khan, learned Advocate for the respondents, on the other hand, contends that Golam Rahman purchased the raiyati after the death of his father and as such at the time of this purchase he was a tenure-holder, that is, Howlader, having inherited his father's superior interest; consequently, the two interests were united "in the same person" whereupon he lost the raiyati and held only the Howla-interest which is not protected from annulment in the event of sale of the Touzi under section 37 of the Sales Act. The learned advocate has made strenuous efforts to make, out a case of merger of the tenure and the occupancy raiyati within the meaning and ambit of Sub-section, (1) of section 22 of the B.T. Act, 1885. To appreciate the points involved in these two contentions section 22, B.T. Act as it stood before amendments of 1907 and 1928 is quoted below:
Original section (Act VIII of 1885).
"22. (1) When the immediate landlord of an occupancy-holding is a proprietor or permanent tenure-holder, and the entire interests of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, the occupancy right shall cease to exist but nothing in this sub-section shall prejudicially affect the rights of any third person.
(2) If the occupancy-light inland is transferred to a person jointly interested in the land as proprietor or permanent tenure-holder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person.
(3) A person holding land as an ijaradar or farmer of rents shall not, while so holding acquire a right of occupancy in any land comprised in his ijara or farm.
Explanation-A person having a right of occupancy in land does not lose it by subsequently becoming jointly interested in the land as proprietor or permanent tenure-holder, or by subsequently holding the land in ijara or farm.
Sale of a revenue paying estate for the recovery of arrear of revenue is governed by the Bengal Laud Revenue Sales Act XI of 1859 and section 37 thereof provides the right of the purchaser of such an estate including the right to annul all encumbrances. Section 37 is, therefore, quoted below for appreciation of the consequences of a revenue sale.
"37. The purchaser of an entire estate in the permanently-settled districts of Bengal, (Bihar and Orissa), sold under this Act for the recovery of arrears due on account of the same shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of settlement; and shall be entitled to avoid and annul all under-tenures and forthwith to eject all under-tenants, with the following exceptions:-
First —Istimrari or mukarrari tenures which have been held at a fixed rent from the time of the permanent settlement.
Secondly.—Tenures existing at the time of settlement which have not been held at a fixed rent:
Thirdly.—Talukdari and other similar tenures created since the time of settlement and held immediately by the proprietors of estates and farms for terms of years held, when such tenures and farms have been duly registered under the provisions of this Act.
Fourthly.- Leases of lands whereon dwelling-houses, manufactories or other permanent buildings have been erected, or whereon gardens, plantations, tanks, wells, cabals, places of worship or burning or burying grounds have been made wherein mines have been, sunk.
Provided always that nothing in this section contained, shall be construed to entitle any such purchaser as aforesaid to eject any raiyat having a right of occupancy at a fixed rent or at a rent assessable according to fixed rules under the laws in force or to enhance the rent of any such raiyat otherwise than in the manner prescribed by such laws, or otherwise than the former proprietor irrespective of all engagements made since the time of settlement, may have been entitled to do,"

11. As it appears clearly an occupancy right is not an encumbrance but is a protected interest and remains unaffected by the sale of its superior interest. Now the question is whether the occupancy-raiyati purchased by Golam Rahman, the appellants' predecessor, was merged in the Howla interest under sub-section (1) of section 22, B.T. Act or it continued in existence as raiyati under the Explanation to that section 22 particularly, sub-section (1) introduces the "doctrine of merger” of an estate or tenure with a raiyati interest in the same person resulting in total extinguishment of the raiyati. Here complete merger is effected as the entire interest of the proprietor/permanent tenure-holder and the entire interest of the raiyati unite in the same person. Sub-section (2) provides for partial merger which takes place if a co-sharer landlord acquires the raiyati interest under him and his other co-sharer landlords. As to sub-section (3), it prohibits an ijaradar or revenue farmer from acquiring any occupancy right and as such it is not attracted in the instant case. But the “Explanation” to this section is of fundamental importance in that it operates as an exception to the general principle of merger in sub-sections (1) and (2). It provides that if an occupancy raiyat acquires a share in the superior interest, that is, an estate or a permanent tenure, he shall not lose the raiyati" interest. The doctrine of merger, under which the occupancy right disappears, is based on the common-sense principle that a person cannot be, at the same time, both landlord and tenant of the same premises. This has been explained in Woodfall's Landlord and Tenant, page 326 in the following words:
"Whenever the particular estate and that immediately in reversion are both legal and both equitable, and by any act or event subsequent to the creation of the particular estate, becomes, for the first time, vested in one person in the same right, separate existence will cease, and a merger will take place."
In the case of a merger, it is clear, the landlord holds only the superior interest; he cannot possess the land in khas. To give a co-sharer landlord right to hold the land in khas as well this section was amended first in 1907 and then in 1928. By the amendment of 1907, in sub-section (1) the phrase "the occupancy right shall cease to exist" was replaced by the phrase "such person shall have no right to hold the land as raiyat but shall hold it as a proprietor or permanent tenure-holder". And as to sub-section (2), it was so amended as to enable a co-sharer landlord, if he acquires the occupancy right, to hold the land in khas on payment of rent to his co-sharer-landlords "for use and occupation of the same". But so far as the Exception is concerned, it has remained unaltered all through as a result, a person holding occupancy right in a land does not lose it by subsequently becoming jointly interested in the land as proprietor or permanent tenure-holder. The difference between sub-section (1) and the Explanation is that in the former the landlord acquires the raiyati but the raiyat holding disappears and in the latter a raiyat acquires a share in the superior interest but retains his raiyati interest.

12. Mr. T.H. Khan learned Advocate for the respondents, in order to bring the case within sub-section (1) of section 22 contends that the occupancy raiyat was purchased by Golam Rahman after the death of his father Ahmadullah Dewanji; that is to say, when Golam Rahman already inherited his father's Howla interest and became a tenure-holder. But the date of death of Golam Rahman's father was never an issue in this suit, on the contrary, the whole case of the defendants was built upon their contention raised in then written statement that Golam Rahman's father had purchased the raiyati in the benami of his son. Evidence was led by them in support of the contention that the transaction was a benami purchase by Ahmadullah Dewanji in the name of his son Golam Rahman. But this contention was rejected and it was held that the transaction was not a benami transaction but the raiyati was purchased by Golam Rahman with his own money and for his own interest. The best among the evidence led in this connection by the plaintiffs was the deposition of Ahmadullah Dewanji himself in another suit—T.S. No. 240 of 1907, (Ext.18). In that suit also the question of benami nature of this sale under the kabala, Ext.7, was raised and in that suit Ahmadullah Dewanji deposed as a witness stating that his son had purchased the raiyati. Now at the fag end of the day, the new contention has been raised that Golam Rahman's father was dead when the raiyati was purchased. This contention is inconsistent with the earlier contention taken in the trial court that Ahmadullah Dewanji purchased the land in benami of his son. We have no hesitation to reject this contention and we accept as correct the finding that the acquisition of the occupancy raiyati under Ext.7 in the year 1905 fell into the Explanation to section 2 before its amendment.

13. Mr. T.H. Khan has next made feeble attempts to reopen the question as to the Barga kabuliyats Exts.1 (b) to 1(f) contending that though they are styled Barga kabuliyats, their contents show that occupancy rights or raiyati interests were created in favour of the respondent's predecessors. It has already been pointed out that this is a concurrent finding of both the trial court and the appellate Court that these kabuliyats were barga kabuliyats and not kabuliyats creating any tenancy right and that on the expiry of the terms of these kabuliyats the lands were surrendered to the owner. We have considered the evidence in this connection and we find that the kabuliyats were for fixed periods of time varying from 4 years to nine years; in three cases, kabuliyats Exts.1(c) 1(g), 1(j), the first terms of four years were extended for further periods of five years. In all these kabuliyats it was stipulated that on the expiry of the terms of the kabuliyats the executants would be bound to hand over possession to the owner, Golam Rahman. We also find evidence of overt acts of possession of Golam Rahman after the surrender, such as conversion of two Nal lands into homestead land and excavation of a big tank in one plot of land in respect of which both oral and documentary evidence including payment of labour cost has been led. Above all, in the two subsequent kabuliyats Ext.1 dated 14-8-31 AD and Ext. 2 dated 18-8-31 AD, Abul Gani Mir while taking Osat settlement under the former and right of cultivation against receipt of labour charge under the latter, clearly and unequivocally admitted Golam Rahman as owner in raiyati right. In respect of the Osat kabuliyat, Mr. T.H. Khan has tried to argue that the land thereunder relates to the khas land of Golam Rahman in Khatian No.140 This contention is correct only in the case of Plot No.199 measuring 53 acres of Khatian No.140, but it is not correct in the case of Plot No.199/073 of Khatian No.141 which was covered by Abdul Gani Mir's previous barga kabuliyats Ext. 1(b). If the land under the kabuliyat Fxt.1 (b) had been already settled to him in raiyati right in the year 1916 why he would again take Osat settlement (under raiyati) in the year 1931 AD? Mr. T.H. Khan contends that mere title “barga” of the kabuliyat is not sufficient to draw an inference in favour of a barga settlement, and that determination of the issue depends on proper construction of the document. We have considered this contention and find that excepting the stipulation for payment of fixed quantities of paddy and jute for use and occupation of the land all other ingredients indicate a barga settlement. As to the position of a bargader, he has been excluded from the Definition of a tenant under section 3(17) of the Bengal Tenancy Act, 1885. This definition has remained unaltered all-through. Under this section the bargader or Adhiar is not a tenant, but he acquires the status of a tenant only in two circumstances; if he is admitted as a tenant by the landlord in any document executed by him or exected in his favour and accepted by him, or if he has been held by a civil court to be a tenant. Neither of these two requirements has been fulfilled in the case of the respondent's predecessors. Moreover, these kabuliyats were executed around 1320 B.S. corresponding to 1914 AD. Had occupancy rights been created thereunder, these rights would not have been annulled in consequence of the sale of the Touzi in 1950. Taking fresh settlement by the respondents from the Government in the wake of the revenue-sale goes to show that the kabuliyats did not give them any occupancy right.

14. In the result, this appeal succeeds and accordingly it is allowed; the impugned decision of the High Court Division is set aside and that of the trial Court is restored. In view of the nature of the questions involved we do not make any order as to costs.
Ed.

Shafquat Haider & others Vs. M. Al-Amin and another, 39 DLR (AD) (1987) 103

Case No: Civil Appeal No. 38 of 1986

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Mr. Asrarul Hossain,,

Citation: 39 DLR (AD) (1987) 103

Case Year: 1987

Appellant: Shafquat Haider

Respondent: M. Al-Amin

Subject: Company Matter, Intellectual Property,

Delivery Date: 1986-8-13

Supreme Court
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed J
M. H. Rahman J
A.T.M. Afzal J

Shafquat Haider & others
………………….....Appellants.
Vs.
M. Al-Amin and another
....................... Respondents

Judgment
August 13, 1986.

Companies Act (VII of 1913)
Section 11
This section provides that a company shall not be registered by a name identical with that by which a company in existence is already registered or so nearly resembling that name as to be calculated to deceive. … (5)
Passing Off—
The foundation of a passing-off action is that nobody is entitled to represent his goods as the goods of somebody else, Foundation of a passing-off action is always deception or possibility of deception. …. (6)

Cases Referred to-
K.M. Multani vs. Paramount Talkies AIR 1942 Bom. 241; The North Cheshire and Manchester Brewery Company Ltd. v. The Manchester Brewery Company Ltd. (1899) A.C 83; Hendriks vs. Montagu Ch. D (17), 638; National Bank of India vs. The National Bank of Indore, AIR 1923 Bom. 119; Simatul Chemical Industries Ltd. v. Cibatul Ltd. AIR 1978 Guj. 216; Exxon Corporation and others v. Exxon Insurance Consultants International Ltd. All E.R. (1981) Vol. 2 pages 495; Turton vs. Turton, 42 Ch. Division, 128; Office Clearing Services Ltd. v. Westminster Window and General Cleaners Ltd. RPC Vol. 62-63 p. 39; K.M. Multani v. Paramount Talkies, AJR 1942 Bom. 119.

Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Appellants.
Asrarul Hossain, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondents.

Civil Appeal No. 38 of 1986.
(From the judgment and order dated 26-6-1986 passed by the High Court Division, Dhaka Bench, in Company Matter No. 21 of 1986.)

JUDGMENT

Shahabuddin Ahmed J.

That appeal by special leave calls in question an order of a learned Single Judge of the High Court Division dated 26 June 1986 refuting temporary injunction to restrain the respondents' use of a trade name, “Ciproco Computers”. The learned trial Judge took the view that "there is a gulf of difference between the ''Ciproco Computer" and the "Ciproco Computers Ltd." which is the name of appellant No. 3, a Company, of which respondent No. 1 is the Chairman and appellant No. 1 is the Managing Director. This arises in a winding up proceeding under section 162 of the Companies Act, namely Company Matter No. 21 of 1986 pending before the High Court Division,

2. The application for winding-up the company was filed by respondent No. 1, M. Al-Amin, the Chairman and his mother, Dr. Jahanara Begum, a Director, they hold 50% of the total shares of the company while appellant No. 1, Shafquat Haider, Managing Director and his wife, Mrs. Haider, another Director, hold the remaining 50% shares of the company. In the application for winding-up they alleged a complete dead-lock that arose in the company's business due to serious difference of opinion and mutual distrust between the Chairman and the Managing Director. The company was registered under the name and style "Ciproco Computers Ltd." in June 1985. The business of the company consists in import, sale and servicing of computer machines of various kinds, manufactured by reputed Foreign Firms including Tandy and IFM and also in imparting technical education and training in computer science and technology. The company got a clientele of 300 computer systems and its customers include, among others, Banga Bhaban. Bangladesh Biman, Defence Intelligence Directorate, Power Development Board, T & T Board and UNDO Dhaka. The company by rendering meritorious service to the customers already acquired considerable reputation in the field of computer business.

3. Immediately after the proceeding for winding-up was started, appellants filed an application seeking injunction against the Chairman-respondent alleging that at about the time the application for winding-up of the company was filed, the Chairman surreptitiously and fraudulently procured a trade licence in the name of "Ciproco Computers" and started a private business under that name as Proprietor and alto made correspondence with the company's customers falsely representing that the company's business ceased to exist and that in its place his private firm, Ciproco Computers, was doing the business and further that he advised those customers to cancel their existing orders with the company and place fresh orders to his new firm. It was further alleged in the application for injunction that respondent No. 1 wrote to the Petrol Station, where the Company's cars used to be serviced on credit basis, to discontinue the credit facilities, that the Bangladesh Biman which had placed an order for supply of Computer Machines worth several lacs of taka with the company to cancel the order. It was alleged that respondent No.1 by practising deception and creating confusion by this close similarity between the two names and also by misrepresentation already enticed away the company's Customers while the application for winding-up is pending. In these circumstances, they soughs temporary injunction to restrains the respondents from using the Trade name, "Ciproco Computers" which is so similar to the company's name “Ciproco Computers Ltd.” that the public, particularly the customers, are being deceived and misled causing great damage to the company's business.

4. The application for injunction was resisted by the respondents. They denied that their business under the name “Ciproco Computers” was a new one, but asserted that it had been in existence long before the company was incorporated. The name "Ciproco Computer", it was alleged, was a trade mark registered in January 1984, in the name of respondent No.1, under the Trade Marks Act. Respondent No.1 claimed to be a graduate in Computers Science having a decree from an English University and that he was the pioneer in this special field of Computer business. He further claimed that he had been doing the business from 1981 under the name "Ciproco" that it is he who promoted the formation of the company and took appellant No. 1 as Managing Director. He alleged that respondant No.1 had not she required qualification but was refused admission into the Business Administration Course of the Dhaka University on his filing false documents of Admission- qualification, his relation with the appellant started to deteriorate. He further alleged that appellant No.1 suddenly submitted resignation from the office of Managing Director and thereby created dead-lock in the business and affairs of the company since affairs of the company were so distributed between the Chairman and the Managing Director, other two Directors being silent Directors that without their mutual co-operation the company would collapse. The Chairman alleged that he had disclosed in a meeting held on 26 April 1965 that he would resume his private business under his own trade mark "Ciproco Computer". He explained that the Trade licence in the name of ''Ciproco Compulsory" taken in May 1986 was a mere formality, that it was not taken fraudulently or surreptitiously but as a matter of course in that he had already got his name registered as owner of the Trademark "Ciproco". He denied having practised any deception or got any fraudulent intention in resuming his own business and as such there was no ground for restraining the use of the Trade mark in his name. It was contended that appellants No.1 and 2 got no right to speak or do anything on behalf of the company,

5. The learned Single Judge, as already stated, refused injunction observing, among other things, that no prima facie case was made out for an injunction and that the two names were not similar so as to create any confusion in the public mind. Mr. Ishtiaq Ahmed, learned Advocate for the appellant, has seriously challenged this observation of the learned trial Judge and has contended that in view of the facts disclosed in the evidences adduced it in a clear case of "passing-off" in that not only the two names, Ciproco Computers an Ciproco Computers Ltd., are almost exactly similar, very likely to deceive the public, but also respondent No. 1 by specific action diverted away the company' customers mis-representing that the company is no longer in the business and that in its place his firm has been doing the same business. Mr. Asrerul Hossain, learned Counsel for the respondents has on the other hand, contended that the company's business is not the "existing business,' but it is the respondents' business which is In fact, the existing business as it has been in existence from before, that is, since 1981, whereas the company was incorporated in 1984. In support of this contention he has referred to a number of documents, particularly Annexures ‘I’ 'J 'K and ‘L’, of the Affidavit-in Opposition about the business carried on by respondent No.1. Al-Amin. Prior to the incorporation of the company. But hardly anything has been mentioned either in the appellants' application or in the documents filed by the respondents as to on what consideration respondent No.1 formed the company discontinuing or temporarily suspending his own business, or whether, with the incorporation of the company he reserved any right to do private business of similar nature. No paper regarding the formation of the company, such as Memorandum of Articles of Association have been produced before us by either party. Section 11 of the Companies Act provides that a company shall not be registered by a name identical with that by which a company in existence is already registered or so nearly resembling that name as to be calculated to deceive. The Trade mark registered on 5-1-84 in the name of respondent No.1 under the Trade Marks Act, 1940, shows that the Trade Mark is "Ciproco Computers Co." But other documents which are copies of correspondence made by Al-Amin, President of "Ciproco Computers Company", show that this company was variously referred to at different times, such as Ciproco Business Computers Service Ltd. Ciproco Ltd., 'Ciproco Corporation. In these different names respondent No.1 had carried on business, as appears from these correspondences, from 1981 to 1983 but there is no paper to show that he carried on any business under those names after the incorporation of the Company In June, 1984. To be precise there is no evidence to show that respondent No. 1 carried on business in the name of, "Ciproco Computers' from the time of incorporation of the Company till the application for winding-up was filed. This is all the more evident from the fact that the disputed Trade licence was obtained from the Dhaka Municipal Corporation on 28 May 1986 that is about a fortnight before the filing of the application for win-ding-up the company. On these materials we are in a position to hold that though respondent No.1 had carried on business in computers under the general name of 'Ciproco" prior to the Incorporation of the company, but since then he did not carry on any such private business and that whatever he did, as chairman of the company. It is he who is seeking winding-up of the company, but the matter is still pending. Now the question is whether during the pendency of the proceeding for winding-up he is entitled to do any business of his own under a trade name which, because of its close similarity with that if the company, is calculated or likely to deceive the public, particularly the customers into the belief that they are doing business with the company, though in fact they are doing business with respondent No.1.

6. Mr. Ishtiaq Ahmed contends that use of the name''Ciproco Computers" is clearly Intended to pass off the respondents, business as that of the appellant-company and as such. It is a clear case of 'passing-off'. In support of this contention he has relied upon a number of decisions. Before we consider them we propose to see what is meant by "passing off" which Is rather a technical trade term The foundation of a passing off action is that nobody is entitled to represent his goods of somebody else. Foundation of a passing-off action is always deception or possibility of deception, Beaumont, C. J. has elucidated the principle of pasting-off in his decision in the case of K.M. Multani vs. Paramount Talkies AIR 1942 Bom. 241 in the following words 'In a passing-off action it is never the plaintiff's case that he has been himself deceived by the action of the defendant. His case is that other people, the public, have been deceived, or are likely to be deceived. Two issues must always arise in a passing-off action: First has the name or description of make up or whatever it maybe, of the wrongful user of which the plaintiff complains, come to be associated in the public mind with the goods, business, or works of the plaintiff; secondly, is the defendant so describing, or getting as to up, his goods or whatever it may be, be likely to mislead the public into believing that they are acquiring the plaintiff's goods when in fact they are acquiring the defendant's goods. Referring to Lord Halsbury in (1896) A.C 199, the learned Judge further observed: “There is of course, a great variety in the nature of passing-off actions. Sometimes the plaintiff's goods are described by purely fancy names, sometimes by names which are descriptive of their nature or they may be referred to merely by the name of the plaintiff and sometimes the defendant may bear the same name. The issues in each case have to be framed with reference to the facts of that case but in my judgment the plaintiff has always to succeed substantially on two issues of the nature mentioned above the...first funding the plaintiff's right to sue, the second the defenders liability to be sued." In that Bombay case, injunction was however refused though two Films (motion pictures) got the same name, 'Virginia'. The ground for refusal was that there were two producers in two countries, one in India and the other in United States of America; the Indian film was in Urdu with Indian cast in black end white, depicting an imaginary story between the Greek & the Romans about 4000 B. C; the other film was in English produced in America with foreign cast in technicolour depicting modern American life; the Indian film was given the came Virginia after the name of its heroine, but the American film was given the name Virginia because of its setting in the state of Virginia, USA; production and exhibition of the two films were contemporaneous just by mere co-incidence without having any knowledge about each other.

7. In the instant case the trade mark is directly involved, but it is the name of the appellant-company vis-a-vis that of the respondents' private business which is involved. The company is named Ciproco Computers Ltd." and respondent No.1 has started business of his own firm under the name "Ciproco Computers". If there is any similarity between the names which is likely to create confusion in the minds of the public that while they are doing business with the Company they are in fact doing the business with respondents No. 1, then this case comes within the ambit of passing-off as has been explained above. Mr. Ishtiaq Ahmed has referred to the case of The North Cheshire and Manchester Brewery Company Ltd. v. The Manchester Brewery Company Ltd. (1899) A.C 83. There the Manchester Brewery Company Ltd. had carried on business under that name for years. The appellant bought an old business called "the North Cheshire Brewery Company Ltd." and then got this incorporated and registered under the name "The North Cheshire and Manchester Brewery Company Ltd.". In an action brought by the respondent it was held upon evidence that as a matter of fact the name of the appellants company was calculated to deceive and that the appellant must therefore be restrained by injunction.

8. Next case relied upon by Mr. Ishtiaq Ahmed is Hendriks vs. Montagu Ch. D (17), 638. In that case an existing company—Universal Life Assurance Society-was granted an injunction restraining the defendant from obtaining registration of another company to be called "Universe Life Assurance Association." The plaintiff company, namely the Universal Life Assurance Society, was formed in 1834 and acquired a large business in Life Assurance Association' stating that this Association was formed to transact the business of life Insurance, the same business as the plaintiff had been doing from the fame place. It was held that the names were' so similar that it was calculated to deceive the public. Another case relied upon by Mr. Ishtiaq Ahmed is the National Bank of India vs. The National Bank of Indore, AIR 1923 Bom. 119 and the questions there were whether there was any close similarity between the names of the two banking companies and whether the ordinary public would mistake one for another. The questions were answered in the affirmative and it was observed that "a person shall not trade under a name so closely resembling that of the plaintiff as to be mistaken for use by the public and that the plaintiff to such an action need not show that the defendant in adopting such a name complained of by the plaintiff has any fraudulent intention". The next case referred to by Mr. Ishtiaq Ahmed' is Simatul Chemical Industries Ltd. v. Cibatul Ltd. AIR 1978 Guj. 216. In that case the plaintiff, a manufacturing company, complained that the likely customers of its goods were apt to be confused by the similarity between its name and that of the defendant's company which subsequently started production of same goods. Plaintiff- company was originally named as Atul Products Ltd. engaged in the manufacture of dyes and chemicals of various kinds since 1947. It then collaborated with a reputed Swiss Company. CIBA, and got registered under the name "Cibatul Ltd." which signified participation of both the companies and under that name this company was carrying on manufacturing business with considerable success. In 1974 the defendant company was formed for the purpose of manufacturing same kinds of goods and it adopted the name "Simatul" Chemical Industries. The plaintiff company brought an action to restrain the defendant from using the name ‘Simatul’ which, because of its close similarly was calculated to deceive the public, and it was held that the name 'Simatul' was so deceptively similar to the name of the plaintiff’s names "Cibatul" that the public at large and the consumers in particular were likely to be deceived into believing that they were dealing with the same company or companies having some connection or association with each other. The last case referred to by Mr. Ishtiaq Ahmed is Exxon Corporation and others v. Exxon Insurance Consultants International Ltd. All E.R. (1981) Vol. 2 pages 495. There the plaintiff company dealt in petroleum and similar products is decided to devise a new corporate name and was looking for an invented name which should be short and distinctive, capable of being easily memorised. After spending considerable time and efforts the word Exxon' was invented and it was Died as a part of the corporate name of the company which was "Exxon Corporation". The defendant company after some time adopted the same word 'Exxon' as part of its corporate name which thus came to be Exxon Insurance Consultants International Ltd. The plaintiff company brought an action against the defendant claiming injunction to restrain the Infringement of Its ‘copy right’ in the name of Exxon on the ground that this word was an "original literary work" within section 2(5) of the Copy-rights Act, 1956. The plaintiff also sought an injunction to restrain the defendant from passing-off its goods as that of the plaintiff by using the word Exxon. Injunction was refused on the first count on the ground the word ‘Exxon' was not an 'original literary work" since it got no meaning or significance in itself; but injunction was granted on the second count, that is, the plaintiff were held entitled to the auxiliary relief restraining the passing-off by the defendant by its use of the word ‘Exxon'.

9. Mr. Asrarul Hossain, on the other hand has referred to certain decisions in which in spite of some similarity between the names of companies injunction was refused. One such case is Turton vs. Turton, 42 Ch. Division, 128. There the plaintiff had many years carried on the business of steel manufacturers under the name of Thomas Turton & Sons. The defendant, John Turton, had also for many years earned on a similar business in tile same town, first as ''John Turton" then as John Turton and Co. In 1888 he took his two sons into partnership and carried on the same business as ‘John Turton & Sons'. There was no evidence that the defendants imitated the trade marks or labels of the plaintiff or otherwise intended to deceive the public; it was held that although there was some probability that the public would be occasionally misled by the similarity of the names the plaintiffs were not entitled to an injunction restraining the defendants from the use of the name "John Turton & Sons”. The ground given for this view was that "John Turton" is actually the Christian name of the defendant as "Thomas Turton" was the Christian name of the plaintiff and that John Turton honestly used the name John Turton & Sons just to show that his sons were brought into partnership. Further it wan observed that the defendant could not be restrained from using his own name or from bringing his sons into partnership and thereupon modifying the former name to as to signify the participation of his sons in the business. Next case referred to by Mr. Asrarul Hossain is Office Clearing Services Ltd. v. Westminster Window and General Cleaners Ltd. RPC Vol. 62-63 p. 39—a case finally decided by the House of Lords confirming the decision of the Court of Appeals which was reported in RPC Vol. 60-61, page 133. There the plaintiff and the defendant both carried on business of Office Cleaners, the plaintiffs having traded under the style "Office Cleaning Services" since heir incorporation in 1930, the defendants having traded under the style "Westminister Office Cleaning." The plaintiffs brought this action to restrain the defendants from trading under this name and style which, they contended was likely to cause the business of the defendants to be confused with their business. They admitted that they had no monopoly in the two words ‘Office Cleaning’ and also that these words had not acquired a secondary meaning so as to be distinctive of their firm. The trial Court (Mortou, J.) gave judgment for the plaintiffs' but he did not hold that fraud by the defendants was proved. The decision was reverted in appeal and the appellate decision was affirmed by the House of Lords which observed that the differentiation between the two names was sufficient to avert any confusion which might otherwise arise from the use of two ordinary descriptive words "Office Cleaning": that where a trader adopts a trading name containing words in common use some risk of conclusion may be inevitable, but that risk must be run unless the first trader is allowed an unfair monopoly, and in such cases the court will accept comparative; small differences as sufficient lo avert confusion.

10. And it appears clearly from the decisions discussed above, in some cases injunction was granted and in some others it was refused. Issues were framed and decision taken on the basis of facts of the respective cases the broad question being there was whether the similarity of name or mark was such as to create confusion or deceive the public in the instant case there is close similarity between the names ‘Ciproco Computers Ltd,' and "Ciproco Computers." We are unable to agree with the learned Single Judge that "there is a gulf of difference between the two names." Even Mr. Asrarul Hossain does not strongly support the view that there is "a gulf of difference' between the two names, but the whole of his argument is based on the claim that respondent No.1, Al-Amin, was already in the field having done business in the name of Ciproco and having got his Trade mark registered, whereas it is the appellant-company which was subsequently formed at the initiative of Al-Amin with this name, also suggested by Al-Amin himself. But after the company was formed, we find, respondent No.1 did not do any business in the name of his former proprietorship firm or at least no evidence has been led in support of any such separate business during this period. In the circumstances, when he himself sought for the winding-up he should wait for the court's decision on the question. The action taken by him particularly in getting the existing orders of the company for supply of goods and machine to different customers cancelled on the representation that the company is no longer in the business cannot be approved. Here we find not only the case of close similarity between the two names likely to create confusion in the minds of the customers, both existing and intending, but also we find that respondent No. 1 took definite steps to entice away the customers, from the company to his private business. In the circumstance, respondent No. 1 should be restrained from doing so. Mr. Asrarul Hossain contends that the court may, instead of restraining the respondent from using the disputed name, grant relief by way of damage. In support of this contention he has referred to an observation in the case of K.M. Multani v. Paramount Talkies, AJR 1942 Bom. 119 as already referred to above. The learned Judge there observed that "in a suit for injunction the court can grant relief in the alternative by way of damages even if the plaintiff has not alleged loss or damage." This may be possible in appropriate cases, but in the case before us we do not find any reason for granting the alternative relief by way of damage. Mr. Asrarul Hossain lastly contends that the ad interim injunction issued while granting leave to this appeal is likely to restrain respondent No. 1 from functioning as Chairman of the company. We do not see any reason for such an apprehension, for by the ad interim order of injunction only the use of the disputed Trade licence dated 28 May 1986 has been restrained.

11. In the result, the appeal is allowed and the impugned order of the High Court Divison is set aside. The application for injunction is allowed and respondent No.1 is restrained from using the trade name 'Ciproco Computers’ till disposal of the winding-up petition. This order, however, does not restrain respondent No.1 from discharging his duties as Chairman of the company. The winding-up matter should be disposed of expeditiously. No order as to costs.

Ed.

Shah Alam Mollah (Md) Vs. Election Commission, 42 DLR (AD) (1990) 73

Case No: Civil Appeal No. 19 of 1989

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,,

Citation: 42 DLR (AD) (1990) 73

Case Year: 1990

Appellant: Shah Alam Mollah

Respondent: Election Commission

Subject: Election Matter,

Delivery Date: 1989-4-31

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Shah Alam Mollah (Md)
........................Appellant
Vs.
The Election Commission Sher-e-Bangla Nagar, Dhaka and ors
……..............Respondents

Judgment
April 31, 1989.

The Local Government (Union Parishads) Election Rules, 1989
Rules 38-43
The appellant is not entitled to raise the question of repoll for the first time before the Appellate Division. Even if the question was raised before the High Court Division on the ground that there was no peaceful polling at the centre concerned, the High Court Division could not have embarked upon an enquiry to make a finding of fact as to truth or otherwise of the allegations made by the appellant. When the Election Commission directed consolidation and acceptance of the result as submitted by the Presiding officer, the High Court Division could not sit on judgment over it and direct repoll………………………(5)

Lawyers Involved:
Md. Joynul Abedin, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record.—For the Appellant.
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on- Record.—Respondent No. 4.
Not Respondent—Respondent Nos. 1-3 & 5-6.

Civil Appeal No. 19 of 1989.
(From the judgment order dated 11.12.1989 passed by the High Court Division, Dhaka in Writ Petition No. 1314 of 1988).

JUDGMENT

A. T. M. Afzal J.

1. The appellant in this appeal, by leave, was a contestant along with respondents 4-6-for chairmanship of No.8 Munshirhat Union Parishad within Upazila Chauddagram, District Comilla. The election was held on 10.2.88. Dispute arose over election at the Munshirhat High School Centre in Ward No. 3 According to the appellant there was no peaceful election in the said centre but the Presiding Officer counted the votes and submitted a result in TA Form. At the instance of the appellant, the Election Commission held an enquiry through the Deputy Commissioner, Comilla and then directed the District Election Officer, Comilla to obtain the election results including the result of the Munshirhat High School Centre from the Returning Officer and send the same to the Election Commission. This order dated 2.7.88 (Anx. G to the Writ petition) was challenged by the appellant in Writ Petition No. 1314 of 1988. A rule Nisi was issued upon the respondents to show cause why the said order should not be declared to have been made without any lawful authority, etc. and further why respondent Nos. 1-3 should not be directed to hold fresh poll at Munshirhat High School Centre.

2. Respondent No.4 contested the rule by filing an affidavit-in-opposition.

3. It appears from the impugned Judgment that the only point raised for consideration was whether the Election Commission had authority to direct recounting of voles. On behalf of the respondent it was argued that the impugned order was not for recounting of voles but for consolidation of the results in DMA Form as submitted by the Presiding Officer in TA Form. The learned Judges took the view that the impugned order so far as it relates to the recounting of voles of Munshirhat High School Centre was passed without lawful authority and accordingly the rule was made absolute in part.

4. At the time of hearing of the leave petition the learned advocate for the appellant made submission for the proposition that the Election Commission ought to have directed a fresh poll at the aforesaid centre.

5. It does not appear from the impugned judgment that the appellant raised the question of re-poll in the High Court Division which was the second part of the rule. Objection was only taken to 'counting' or 'recounting' of the votes as was understood by the Court. Evidently, the appellant is not entitled to raise the question of re-poll for the first lime before us. Even if the question was raised in the High Court Division on the ground that there was no peaceful polling at the centre concerned, the High Court Division could not have embarked upon an enquiry to make a finding of fact as to the truth or otherwise of the allegations made by the appellant when the Election Commission directed consolidation and acceptance of the result as submitted by the Presiding Officer, the High Court Division could not sit on judgment over ii and direct a fresh poll on the prayer of the appellant.

6. In any view of the matter, there is no merit in this appeal which is, accordingly, dismissed without any order as to costs.

Ed.

Shah Alam Patwari Vs. Md. Siddiqur Rahman Bhuiyan, 53 DLR (2001) 390

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mainul Hosein,,

Citation: 53 DLR (2001) 390

Case Year: 2001

Appellant: Shah Alam Patwari

Respondent: Md. Siddiqur Rahman Bhuiyan

Subject: Election Matter,

Delivery Date: 2001-5-16

Supreme Court of Bangladesh
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Abdur Rashid J

Shah Alam Patwari (Md)
……............Petitioner
Vs.
Md. Siddiqur Rahman Bhuiyan and others
…………Opposite Parties

Judgment
May 16, 2001.

Union Parishad Election Rules, 1983
Rules 34 & 38
Code of Civil Procedure (V of 1908)
Section 115
In the absence of any materials before it, and there being no objection raised at the time of recount before the appropriate forum, this Division cannot hold that the Election Tribunal did not recount votes in accordance with the rules nor accept any of the invalid votes as found by the Election Tribunal as valid.

Cases Referred To-
Moulana Delwar Hossain Saydee Vs. Sudhanshu Shekhar Halder and others, 52 DLR (AD) 20; Nur Hossain Vs. Election Tribunal, Cox’s Bazar, 27 DLR (AD) 117.

Lawyers Involved:
Mainul Hosein with Md. lqbal Malik and Mozammel Hoque, Advocates — For the Petitioner.
Shafique Ahmed with Kazi Kamrul Alam, Advocates— For the Opposite Party No.1.

Civil Revision No. 2049 of 2001.

JUDGMENT

Md. Abdur Rashid J.

1. This Rule was obtained upon making a revision application under section 115 of the Code of Civil Procedure against judgment and order dated 20-03-2001 passed by the Additional District Judge, 4th Court at Comilla in Election Appeal No.01 of 2000 affirming those dated 24-09-2000 passed by Senior Assistant Judge, Barura and the Election Tribunal at Comilla in Election Tribunal Case No. 01 of 1998.

2. This Rule arises out of an election of the Chairman of No.3 Uttar Khoshbash Union Parishad under PS Barura held on 1-12-97. In the election, AHM, Khaleque since deceased, was elected Chairman.

3. Opposite party No.1 Siddiqur Rahman Bhuiyan challenged the election of said AHM Khaleque by making an election petition before the above Election Tribunal on various grounds of illegal and corrupt practices. He also prayed for recount of the votes. In the election, five candidates including the revision-petitioner and the election-petitioner contested. Said AHM Khaleque opposed the election petition by filing a written objection. Similarly, this revision-petitioner who was opposite party No.3 in the election petition, also filed an objection. Pending hearing of the election petition, AHM Khaleque, the returned candidate died and his name was expunged from the election petition by an order dated 25-01-99. But ultimately, none of the opposite parties in the election petition contested the election petition and the Election Tribunal dismissed the same ex parte against all by its order dated 14-11-99. The prayer for recount was also rejected.

4. The election-petitioner then took an appeal therefrom to the District Judge at Comilla. The appeal was heard and allowed. The order of the Election Tribunal was set aside and the case was sent back on remand to the Election Tribunal with a direction for fresh decision after recount of the votes in four centers, namely, Dewannagar Non-Government Primary School, Shahpur Government Primary School, Kemtali Government Primary School and Adampur Forkania Madrasa.

5. Against this order of remand, the revision-petitioner unsuccessfully made an application under Order 41 rule 21 of the Code of Civil Procedure for rehearing of the appeal in Miscellaneous Case No.10 of 2000 in the Court of District Judge at Comilla. Then, he also moved this Division in revision against the order of remand and obtained a Rule in Civil Revision No. 1756 of 2000 and the Rule was also discharged. So, the order of recount stood confirmed.

6. Thereafter, the Election Tribunal on 30-04-2000 recounted the votes. After the recount, the Election Tribunal found that 3021 votes in total were cast in those four centers and out of those votes, 309 votes were invalid. Besides, the Tribunal found that the returned candidate got 722 valid votes and 1731 ambiguous votes while the election-petitioner got 1 valid vote and 53 ambiguous votes. The Election Tribunal upon such recount has held that if those ambiguous votes are excluded or added to the valid votes obtained by the returned candidate and the election-petitioner, in any case, the returned candidate received less votes than the election- petitioner, and accordingly, it allowed the election petition and declared the election-petitioner election Chairman of the Union Parishad by its judgment and order dated 24-09-2000. The Election Tribunal also cancelled the election of the returned candidate AHM Khaleque and set aside the election of the revision-petitioner in the by-election held in the meantime.

7. It may be noted here that challenging the notification for holding by-election for the office of Chairman of the said Union Parishad, the election-petitioner moved this Division in writ jurisdiction in Writ Petition No. 4304 of 1999 with prayer for stay of the holding of the by-election pending decision of the election petition. Rejecting the petition summarily by its order dated 21-11-99 this Division observed-

“…………………It is held that person elected in the by-elections will step into the shoes of the deceased Chairman, and he will be declared elected subject to the result of the election petition”.

8. Against this order of the Election Tribunal, this revision-petitioner, preferred an appeal before the District Judge at Comilla. On hearing the appeal, the learned Additional District Judge dismissed the appeal and affirmed the judgment and order of the Election Tribunal by the impugned judgment and order as stated above.

9. Mr. Mainul Hosein, the learned Senior Counsel appearing for the revision-petitioners submits that the Election Tribunal committed serious error of law in sorting the votes into invalid as well as into ambiguous votes. He also submits that the Election Tribunal was wrong to hold 1731 of the returned candidates as ambiguous for want of initial inside the official seal or any official mark. Secondly, he submits that in excluding of 309 votes as invalid from the total count the Election Tribunal neither gave any reason nor has shown which of the votes from which of the candidates were so declared invalid. He cited the decision in the case of Moulana Delwar Hossain Saydee Vs. Sudhanshu Shekhar Halder and others, 52 DLR (AD) 20.

10. Mr Shafique Ahmed, the learned Senior Counsel appearing for the election-petitioner, submits that even if the questioned ambiguous votes are not excluded and added to the valid votes of respective candidates, the election-petitioner is rightly found to have received 56 votes more than the regurned candidate AHM Khaleque. Secondly, he submits that 309 votes were rightly excluded from the count as invalid and the Election Tribunal is under no obligation to give any reason for each of such invalid votes as no objection was raised thereto at the time of recounting of votes. He also cited the decision in the case of Nur Hossain Vs. Election Tribunal, Cox’s Bazar, 27 DLR (AD) 117.

11. I have perused the revision application and the judgments and orders of the Court of appeal below and those of the Election Tribunal. I have also heard the learned Counsels at length.

12. I find, under section 29 of the Local Government (Union Parishad) Ordinance 1983, the decision of the District Judge in appeal is final and shall not be called in question in or before any Court. In view of such provision, the jurisdiction under section 115 of the Code of Civil Procedure is very limited for me to see only whether the Court of appeal below has committed any error of law which has resulted in failure of justice.

13. The learned Additional District Judge by his independent consideration of the materials on record has concurred the findings of the Election Tribunal that the returned candidate got 722 valid vote and 1731 defective votes while the election- petitioner got 1 valid vote and 53 defective votes in those four centers. In those four centers 3021 votes in total were cast out of which 309 votes were excluded as invalid votes from the total count. Even, after adding those questioned votes to the valid votes of those four centres with the valid votes of the rest six centres, the Court of appeal below also found that the returned candidate got in total 2676 votes while the election-petitioner got 2732 votes and he accordingly, affirmed the decision of the Election Tribunal holding that the election-petitioner got 56 votes more than the returned candidate late AHM Khaleque. This is the factual position.

14. Now, let me consider the submissions of learned Counsels. It is true that at the recount of the votes, the Election Tribunal sorted ambiguous votes of individual candidates and separated them from the total invalid votes from the count. The Election Tribunal found those votes ambiguous for absence of any initial or official mark inside the official seal.

15. Rule 34 of the Union Parishad (Election) Rules, 1983, says-

(1) When a voter presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him two ballot papers—
(a) one for members; and
(b) one for Chairman.
(2) Before the ballot papers are issued to a voter—
(a) ……………. …………. ………………
(b) ……………. …………. ………………
(c) ……………. …………. ………………
(d) the ballot papers shall on their back be stamped with the official mark.
(e) ……………. …………. ………………
(f) ……………. …………. ………………
(3) The Official mark shall be kept secret until the commencement of the poll.

Regarding count, Rule 38 of the said Rules reads-

(1) ……………. …………. ………………
(2) the Presiding Officer shall—
(a) open the ballot box or boxes and count the entire lot of ballot papers taken out therefrom; and
(b) open the packet labeled “challenged ballot papers” and include the ballot papers therein in the count.
(3) For the purpose of counting ballot papers, the Presiding Officer shall—
(a) arrange separately the ballot papers in respect of members and of Chairman.
(b) separate the ballot papers which are unambiguously marked in favour of a contesting candidate from those of the invalid ballot papers which bears—
(i) no official mark; or
(ii) ……………. …………. ………………
(ii) ……………. …………. ………………
(iv) ……………. …………. ………………
(v) ……………. …………. ………………
(4) The Presiding Officer may recount the votes—
(a) on his own motion if he considers it necessary or
(b) upon the request of a contesting candidate or an election agent present at the count if, in his opinion, the request is not unreasonable.

Like the Presiding Officer, the Election Tribunal is also obliged to follow the above rules in the recount of the ballot papers. The Election Tribunal following the above rules shall separate the unambiguously marked ballot papers i.e. valid votes from the ambiguous ballots i.e. invalid votes. A ballot paper may be invalid for any of reasons as mentioned in clauses (i) to (v) of sub-rule 3 (b) of rule 38. In the recount, the Election Tribunal found as stated earlier that total votes cast in those four centres were 3021 and out of them, 309 votes were invalid. It also found that the returned candidate Mr. AHM Khaleque got 1731 ambiguous votes, the election-petitioner got 53 ambiguous votes and the revision petitioner got 49 ambiguous votes. Appellate Court called them defective votes. The Election Tribunal held those votes ambiguous as there was no initial or official mark in the official seal. The official mark has not been defined. The record does not show what was the official mark used in the poll under rule 34(3). Therefore, it cannot be said that the official seal found on those so-called ambiguous votes was not the official mark. In the circumstances, and in view of the decision in the case of Moulana Delwar Hossain Saydee, Mr. Mainul Hosein is correct that the Election Tribunal had no jurisdiction to exclude those votes as ambiguous from the final tally only for want of initial or official mark in the official seal.

16. But the Election Tribunal also counted the votes by adding those ambiguous votes with the valid votes received by the individual candidates in all the centres and came to a finding that the returned candidate late AHM Khaleque in total got 2,676 votes while the election petitioner got 2,732 votes. The revision petitioner received only 1918 votes in all. So, the Election Tribunal found no difficulty in declaring the election petitioner elected by a margin of 56 votes. Mr. Mainul Hosein submits that the Election Tribunal erred in law in excluding 309 votes as invalid from the count in those four centres in the absence of assigning any reason.

17. In the whole election proceeding, after filing of the written objection the revision petitioner was found absent. He did not contest the election petition. Even after he failed to get the order of remand of the District Judge for recount of the votes reversed up to this Division, he was not present at the recount. No objection was even raised from any quarter during the recount of the votes. Under the above rules, the Election Tribunal is empowered to exclude any of the ballots as invalid for any of the reasons as mentioned in clauses (i) to (v) of rule 38(3)(b) of the Election Rules, 1983. It is also not practically possible to give reason for every ballot found not valid for this or that reason under the above clauses. The finding of 309 votes as invalid in the recount was never challenged either before the Election Tribunal or before the Court of appeal below.

18. Exercising a limited jurisdiction under section 115 of the Code, I cannot entertain such a question for the first time in revision. In the absence of any materials before it, and there being no objection raised at the time of recount and/or before the appropriate forum, this Division cannot hold that the Election Tribunal did not recount votes in accordance with the above rules nor accept any of the invalid votes as found by the Election Tribunal as valid. The decision in the case of Nur Hossain is therefore squarely applicable in the case at hand. In the case, the Appellate Division held-

“In view of the allegations of improper and incorrect counting of ballot papers by the Presiding Officers, the Tribunal scrutinised the ballot papers and recounted them in the presence of the parties and their lawyer and then rejected certain ballot papers as being unambiguous or having been otherwise invalid and accepted those which were unambiguous following the provision of rule 40 (3) (b) of the Rules, 1973.”

In the above facts and circumstances and in view of the law, the exclusion of 309 votes as invalid from the total count in those four centres by the Election Tribunal and as was concurred by the Court of appeal below therefore does not suffer from any infirmity calling for any interference by this Division. So, the submission of Mr. Mainul Hosein has no substance.

19. In the result, the Rule is discharged. No order as to costs. The decision of the Appellate Tribunal affirming that of the Election Tribunal declaring the election-petitioner, Mr. Md. Siddiqur Rahman Bhuiyan elected Chairman of No.3 Khoshbash Uttar Union Parishad under the police station Barura in the District of Comilla is hereby upheld. Order of status quo granted at the time of issue of the above Rule on 24-06-2001 is hereby recalled and vacated.

Communicate this order at once.

Ed.

Shah Cement Ltd. Vs. Customs, Excise and VAT Tribunal and others 2017 (1) LNJ 7

Case No: Writ Petition No. 5491 of 2003

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Mr. Ramjan Ali Sikder, Mr. Abdus Salam Mondal,

Citation: 2017 (1) LNJ 7

Case Year: 2016

Appellant: Shah Cement Ltd.

Respondent: Customs, Excise and VAT Tribunal and others

Subject: Income Tax

Delivery Date: 2018-02-04

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Md. Ziaul Karim, J

And

Sheikh Md. Zakir Hossain, J

Judgment on

14.02.2016

}

Shah Cement Industries Limited having its Head Office at Hussein and Khan Chamber, 13 Dilkusha Commercial Area, (4th Floor), Dhaka and factory office at Muktarpur, Police Station Muktarpur, Munshigonj.

. . . Petitioner.

-VERSUS-

1. The Chairman, Customs, Excise and VAT Appeal Tribunal, 4^th Floor Jiban Bima Bhaban, 10 Dilkusha C/A Police Station Motijheel, Dhaka and 5 others

. . . Respondents.

Value Added Tax Act (XXII of 1991)

Section 5(7)

Value Added Tax Rules, 1991

Rule 3(7)

In the case in hand, the VAT authority did not follow the procedure laid down in section 5(7) of the Act and Sub-Rule(7) of rule 3 of the Rules 1991 and therefore, the price fixed by the authority is not sustainable in law. . . . .(17)

BOC Bangladesh Ltd. Vs. National Board of Revenue and others, 67 DLR (AD) 372 ref.

Mr. Ramjan Ali Sikder, Advocate, with

Mr. Abu Khaled Al Mamun, Advocate,

. . . For the Petitioner.

Mr. Abdus Salam Mondal,DAG, with

Ms. Mahfuza Begum, AAG, and

Mr. Sukumar Biswas, AAG,

. . . For the Respondents.

JUDGMENT

Syed Md. Ziaul Karim, J.

This Rule Nisi was issued on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, calling upon the respondents to show cause as to why the impugned order and decision dated 12.6.2003 (Annexure-F) passed by the respondent No.1 vide Nothi No. CEVT/CASE (VAT) DHAKA-92/2002 and communicated to the petitioner on dated 24.7.2003 affirming the order bearing Nothi No. 4/A(26)Shah Cement/Mulla Anu: /Tek/ 2002/4515(3) dated 10.9.2002 passed by the respondent No.2, and communicated to the petitioner on 10.9.2002 (Annexure “D”) should not be declared to have been made illegally and without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. At the time of issuance of Rule an adinterim order was passed to the following effect:-

Pending hearing of the Rule, let operation of the order and decision dated 12.6.2003 (Annexure-F) passed by the respondent No.1 vide Nothi No. CEVT/CASE(VAT)-DHAKA-92/2002 and communicated to the petitioner on dated 24.7.2003 affirming the order bearing Nothi No. 4/A(26) ShahCement/ Mulla Anu: /Tek/2002/4515(3) dated 10.9.2002 passed by the respondent No.2, and communicated to the petitioner on 10.9.2002 (Annexure-D) be stayed for a period for 4(four) months from date.

3. The short facts leading to this Rule are that, the petitioner is a limited company incorporated under the Companies Act and is engaged in manufacturing and producing “SHAH CEMENT” from imported raw materials, like, Cement Clinker. The petitioner is a sister concern of Abul Khair Group of Industries. The petitioner has been paying huge amount of duties and taxes on its imported raw materials and also paying huge amount of VAT on its finished product and thus makes a substantial contribution to the national economy. The petitioner Company is duly registered with the Controller of Imports and exports and with the VAT authority. In accordance with the provisions of Rule 3(1) of the VAT Rules,1991 (‘the Rules’), the petitioner on 3.8.2002 made its price declaration in the prescribed VAT Form-1 declaring the ‘price of its Cement (the goods) of Tk.167.00/- per bag containing 50kg including all costs of the manufacturer except VAT. The retail price of the goods after VAT was stated as Tk.192.05/- (TK167.00/- price + 15% VAT on the price). After submission of the price declaration (Annexure-A) the respondent No.3 issued its office letter dated 18.8.2002 bearing Nothi No. 4/Cement(6) 5/VAT/ 2000/Aonsha-1/1724 holding that the VAT payable is on the retail price of Tk. 188.00 per bag containing 50kg cement. Against which the petitioner preferred appeal to the commissioner and then to the VAT appellate tribunal who also affirmed the order of the Deputy Commissioner.

4. Feeling aggrieved the petitioner preferred the instant writ petition and obtained the present Rule.

5. The learned Advocate appearing for the Petitioner seeks to impeach the impugned order on four fold arguments –

Firstly:

The impugned order is without lawful authority inasmuch as the respondent No.1, Tribunal, in passing the impugned order failed to consider that the retail price of the petitioner’s product is Tk.167.00/- per bag containing 50 kg and 15% VAT calculated pursuant to Rule 3(1) of the Rules 1991. The retail price of the goods after addition of VAT becomes Tk.192.05/- (TK167.00/- price + 15% VAT on the price). But the respondents wrongly decided and approved the price of the petitioner’s goods at Tk.188.00/- which is excess Tk. 21.00/- (Tk.188.00 - Tk.167.00). If that excess amount is payable, it would amount to VAT on VAT and thus the impugned orders are liable to be declared to have been issued without lawful authority and are no legal effect.

Secondly:

The impugned order is without lawful authority inasmuch as the respondents No.1-4 failed to appreciate that the petitioner declared price of its goods on 3.8.2002 at Tk.167.00/- per 50 Kg bag. The respondent No.3 approved the price at Tk.188.00/- per 50 kg bag without showing any reason whatsoever; that the petitioner filed appeal and the respondent No.2, Commissioner of Customs Excise and VAT, who wholly on erroneous premises approved and confirmed the above price on the ground that the same was fixed on the basis of the guidelines issued by the NBR on 10.9.2002. On the date of approving the price of the petitioner’s goods there was no guidelines of the NBR. The NBR issued its guidance for the first time on 10.9.2002 which is about one month after such approval and thus the respondents on erroneous view arrived at a wrong decision and thus the impugned orders are liable to be declared to have been issued without lawful authority and are of no legal effect.

Thirdly:

The learned Deputy Commissioner, Commissioner and Appellate Tribunal failed to consider the method of calculation of VAT and the buyer of the manufacturer and therefore, arbitrarily imposed VAT and as such the same has been passed without lawful authority and is of no legal effect.

Fourth and lastly:

The buyer of the petitioner is distributor and not the consumer and as such back calculation of VAT on the retail sale price has been made with mala fide intention and without any lawful authority.

6. In support of his contentions he refers the case of Chittagong Cement Clinker Grinding Co. Ltd. -vs- Chairman, National Board of Revenue and others, 60 DLR-287 held:

Value Added Tax Act 1991 Section-5

Value Added Tax Rules 1991 Rules 3 & 9.

“The provision for determination by such departmental officers of the base-value of such goods, which a manufacturer is entitled to supply at his consideration, appears to have been made under rule 3 in derogation of sub-section (2) of section 5 of the VAT Act. When the law does not put any embargo in fixation of the price by a manufacturer of its goods no rules or decision of the VAT authority can impose any such flat or minimum value for such goods in the country, adversely affecting the interest of such manufacturer.

7. The learned Assistant Attorney General appearing on behalf of the respondents opposes the Rule and submits that the respondents are empowered by the law to assess the value of the product independently. He lastly submits that the points raised before this court are absolutely the disputed question of facts which cannot be resolved in writ petition. Therefore the Rule is liable to discharged.

8. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

9. On going to the materials on record it transpires to us that, in view of the provisions laid down in section-5 of the VAT Act 1991 and Rule 3 of Rules 1991 the concern authority i.e. respondents are empowered by law to assess the value of the product and to impose VAT upon such value.

10. For the convenience of understanding section 5 of the VAT Act 1991 and Rule 3 of the Rules 1991 read as hereunder-

5z j§mÉpwk¡Se Ll d¡kÑl SeÉ j§mÉ ¢el©fez- (1) fZÉ Bjc¡¢el ®rœ kC j§mÉl Efl j§mÉ pwk¡Se Ll fËcu qCh a¡q¡ ¢ejÀl©f Ll¡ qCh Customs Act Hl section 25 [Abh¡ section 25A] Hl Ad£e Bjc¡¢e öó Bl¡fe£u j§mÉl p¢qa Bjc¡¢e öó Hhw pÇf¤lL öó pq AeÉ¡eÉ öó J Ll (k¢c ¢LR¤ b¡L), BN¡j BuLl hÉa£a, ®k¡N L¢lu¡z

(2) Ef-d¡l¡ (3) Hl ¢hd¡e p¡fr, fZÉ plhl¡ql ®rœ ®kC j§mÉl Efl j§mÉpwk¡Se Ll fËcu qCh, EJ² fZÉl (fËÙ¹aL¡lL h¡ Evf¡cL h¡ hÉhp¡u£) La«ÑL ®œ²a¡l ¢eLV qCa fË¡fÉ fZ, k¡q¡a (fËÙ¹aL¡lL h¡ Evf¡cL h¡ hÉhp¡u£) La«ÑL œ²uL«a EfLlZ j§mÉ, k¡ha£u hÉu J avLa«ÑL fËk¡SÉ ®rœ, fËcš L¢jne, Q¡SÑ ¢g J pÇf¤lL öó pq pLm öó J Ll (j¤mÉ pwk¡Se Ll hÉa£a) Hhw j¤e¡g¡ A¿¹i¥ÑJ² b¡¢Lhx

ah naÑ b¡L ®k, Bjc¡e£L«a EfLlZ hÉhq¡lœ²j Llk¡NÉ fZÉ fËÙ¹aLlZ h¡ Bjc¡e£L«a fZÉ ¢hœ²u, ¢h¢eju h¡ fËL¡¿¹l qÙ¹¡¿¹ll ®rœ Customs Act Hl Section 25 Abh¡ 25A ®j¡a¡hL ®k j§mÉl ¢i¢ša d¡l¡ 9 Ae¤k¡u£ EfLlZ Ll ®lu¡a NËqe Ll¡ qu ®pC j§mÉl ¢i¢ša plhl¡qL«a fZÉl j§mÉ pwk¡Se Ll Bl¡fk¡NÉ j§mÉ pwk¡Sel q¡l Hhw f¢lj¡Z ¢e¢cÑÖV L¢la f¡¢lhz)

[2Lz ®L¡e ¢eh¢åa hÉ¢J² k¢c L¾VÊ¡ƒ h¡ p¡h-L¾VÊ¡ƒl j¡dÉj AeÉ ®L¡e hÉ¢J²l Evf¡¢ca fZÉ pwNËqf§hÑL a¡q¡l ¢eSü hË¡ä e¡j pl¡p¢l h¡ ¢eSü ¢hœ²u ®L¾cÐ h¡ ¢X¢ØVÊ¢hEVl h¡ L¢jne HS¾Vl j¡dÉj ¢hœ²u Lle, a¡q¡ qCm hË¡ä e¡jk¤J² fZÉ¢Vl ®rœ Eq¡l üaÄ¡¢dL¡l£ La«ÑL ®œ²a¡l ¢eLV qCa fË¡fÉ fZl ¢i¢ša j§mÉ pk¡Se Ll ¢el©fZ Ll¡ qCh Hhw EJ² fZ Ef-d¡l¡ (2) ®a h¢ZÑa ""fË¡fÉ fZ'' Hl pjf¢lj¡Z qChz]

(3) ®k fZÉl ®rœ M¤Ql¡ j§mÉl ¢i¢ša j§mÉ pwk¡Se Ll¡ Bl¡¢fa qCh plL¡l, plL¡l£ ®NSV fË‘¡fe à¡l¡, a¡q¡ ¢Øbl L¢la f¡¢lh Hhw j§mÉ pwk¡Se Ll Bl¡fl ®rœ EJ² fZÉl M¤Ql¡-j§mÉ qCh Eq¡l fËÙ¹aL¡lL h¡ Evf¡cL La«ÑL pw¢nÔÖY~ LjÑLaÑ¡l Ae¤j¡ceœ²j, ¢edÑ¡¢la ®pC j§mÉ k¡q¡a pLm fËL¡l hÉu, L¢jne, Q¡SÑ, öó J Ll A¿¹i¥ÑJ² b¡¢Lh Hhw EJ² fZÉl ¢hno R¡f (brand) h¡ ¢Qq² k¤J² L¢lu¡ Eq¡ ®kC j§mÉ (k¡q¡ EJ² fZÉl N¡u h¡ Eq¡l fË¢a¢V ®j¡sL, b¢mu¡ h¡ ®L¡o p¤ØfÖV, mre£u J Aefe£ui¡h j¤¢âa Ll¡ qu) p¡d¡lZ ®i¡J²¡cl ¢eLV ¢hœ²u qChz

(4) ®ph¡ fËc¡el ®rœ j¤mÉ pwk¡Se Ll d¡kÑÉ Ll¡ qCh phÑj¡V fË¡¢çl Eflx

[ah naÑ b¡L ®k, ®L¡e ¢e¢cÑÖV ®ph¡l ®rœ ®h¡XÑ, Bcn à¡l¡, fËL«a j§mÉ pwk¡Sel Abh¡ avLa«ÑL Hac¤ŸnÉ plL¡l£ NSV fË‘¡fel j¡dÉj j§mÉ pwk¡Sel ¢edÑ¡¢la q¡ll ¢i¢ša j§mÉ pwk¡Se Ll¡ d¡kÑÉ L¢la f¡¢lhz]

[4(L) ®L¡e ¢eh¢åa h¡ ¢ehåek¡NÉ hÉhp¡u£ La«ÑL fZÉ plhl¡ql ®rœ, ®L¡e ¢e¢cÑÖV Ll ®ju¡c EJ² hÉhp¡u£l plhl¡q h¡hc fË¡ç h¡ fË¡ç h¢mu¡ ¢hh¢Qa ®j¡V j§mÉ, k¡q¡ ¢h¢d à¡l¡ ¢edÑ¡¢la fÜ¢aa ¢el©¢fa qCh, Hl ¢i¢ša j§mÉ pwk¡Se Ll¡ Bl¡f Ll¡ k¡Chz]

(5) ®kC fZÉl ®rœ h¡¢ZSÉ h¡V¡ (trade discount) fËc¡e Ll¡ qu ®pC fZÉl ®rœ, j§mÉ pwk¡Se Ll Bl¡f ®k¡NÉ qCh h¡¢ZSÉ h¡V¡ fËc¡el fl ®kC j§mÉ Eq¡ plhl¡q Ll¡ qu ®pC j§mÉl Eflx

ah naÑ b¡L ®k, h¡¢ZSÉ h¡V¡ fËc¡el fl ®pC j§mÉ EJ² fZÉ plhl¡q Ll¡ qu Eq¡ Q¡m¡e fœ EõM L¢la qCh Hhw fËcš h¡¢ZSÉ h¡V¡l f¢lj¡e p¡d¡lZ hÉhp¡u l£¢al p¢qa p‰¢af§ZÑ qCa qChz

(7) HC d¡l¡u k¡q¡ ¢LR¤C b¡L¥L e¡ ®Le, k¢c ®h¡XÑ, Seü¡bÑl …l¦aÄ ¢hhQe¡ J kb¡fk¤J² Ae¤på¡e f§hÑL p¿¹ÖV qu ®k ®L¡e Ll ®k¡NÉ fZÉ h¡ ®ph¡l ®rœ j§mÉ pwk¡Se Ll, h¡ ®rœ ja, j§mÉ pwk¡Se Ll J pÇf¤lL öó d¡kÑÉLl¡l ¢e¢jš Eq¡l VÉ¡¢lg j§mÉ ¢edÑ¡lZ Ll¡ pj£Q£e a¡q¡ qCm ®h¡XÑ plL¡l£ ®NSV S¡l£L«a Bcn à¡l¡ EJ² Llk¡NÉ fZÉ h¡ ®ph¡l VÉ¡¢lg j§mÉ ¢edÑ¡lZ L¢la f¡¢lhz

3z [j§mÉ pwk¡Se Ll h¡, ®rœja, j§mÉ pwk¡Se Ll J pÇf¤lL öó] d¡kÑl SeÉ j§mÉ ®O¡oe¡z- [(1) BCe Hl d¡l¡ 5 J d¡l¡ 7 Hl EŸnÉ f§leLÒf Llk¡NÉ fZÉ plhl¡ql f§hÑ ¢eh¢åa hÉ¢J² avLa«ÑL Evf¡¢ca h¡ plhl¡qk¡NÉ fZÉl Efl fËcu j§mÉ pwk¡Se Ll¡ h¡, ®rœja, j§mÉ pwk¡Se Ll J pÇf¤lL öó d¡kÑl mrÉ pw¢nÔÖV fZÉl EfLlZ - Evf¡c pÇfLÑ h¡ pqL (input-output co-efficient) pq j§mÉ ¢i¢š pÇf¢LÑa HL¢V ®O¡oZ¡ glj "j§pL-1' c¤C fËØb pw¢nÔÖV Hm¡L¡l ¢hi¡N£u LjÑLaÑ¡l ¢eLV c¡¢Mm L¢lhe Hhw EJ²l©f c¡¢MmL«a ®O¡oZ¡l ¢i¢šaC, ®O¡oZ¡ c¡¢Mml a¡¢lM qCa, ¢eh¢åa hÉ¢J² a¡q¡l plhl¡qk¡NÉ fZÉl Efl fÊcu Ll¡ ¢edÑ¡lZ J f¢ln¡df§hÑL fZÉ plhl¡q L¢la f¡¢lhez]

[(2) Ef-¢h¢d (1) Ae¤k¡u£ ®O¡¢oa j§mÉ¢i¢šl ®L¡e f¢lhaÑe p¡del fËu¡Se qCm, EJ² f¢lhaÑe L¡kÑLl L¢lh¡l p¡a L¡kÑ¢chp f§hÑ ¢eh¢åa hÉ¢J² glj "j§pL-1' Hl j§mÉ¢i¢šl HL¢V ea¥e ®O¡oZ¡ h¡ f§hÑ c¡¢MmL«a ®O¡oZ¡l pwn¡de£, k¡q¡C fËk¡SÉ qEL e¡ ®Le, ¢hi¡N£u LjÑLaÑ¡l ¢eLV c¡¢Mm L¢lhe Hhw ea¥ei¡h h¡ pwn¡¢da ®O¡¢oa j§mÉ¢i¢š Ae¤k¡u£ fËcu Ll ¢el©fZ J f¢ln¡d L¢lhez ¢hi¡N£u LjÑLaÑ¡ ®O¡¢oa j§mÉ pÇf¢LÑa abÉ¡¢c a¡vr¢ZL i¡h pw¢nÔÖY~ p¡LÑm p¤f¡¢leVeX¾V Hhw L¢jne¡ll cçll L¢ÇfEV¡l ®pmL Ah¢qa L¢lhez

(3) Ef-¢h¢d (1) h¡ (2) Ae¤k¡u£ ®O¡¢oa j§mÉ ¢i¢šl ¢hou flha£Ñ pju ¢hi¡N£u LjÑLaÑ¡, p¡LÑm p¤f¡¢leVeX¾V Abh¡ L¢jne¡ll ¢eLV qCa rja¡ fË¡ç AeÉ ®L¡e j§mÉ pwk¡Se Ll LjÑLaÑ¡ La«ÑL Hac EŸnÉ f¢lQ¡¢ma ac¿¹ h¡ h¡S¡l Sl£f [Abh¡ p¡LÑm, ¢hi¡N h¡ L¢jne¡ll cçl l¢ra A¢iæ h¡ Ae¤l©f h¡ pjS¡a£u fZÉl j§mÉ pwk¡Sel f¢lj¡Z J ¢hi¡Se, fË¢aÖW¡el fËL«a hÉu, ®O¡¢oa j§mÉ, Ae¤j¡¢ca j§mÉ h¡ h¡S¡l j§mÉ pwœ²¡¿¹ abÉ Ef¡šl ¢i¢ša f¢lQ¡¢ma ac¿¹ h¡ Sl£f] fË¡ç abÉl ¢i¢ša k¢c fËa£uj¡e qu ®k-

(K) fZÉl ®O¡¢oa j§mÉ¢i¢š BCel d¡l¡ 5 Hl p¢qa ApwN¢af§ZÑ h¡

(L) HLC A¢drœ h¡ AeÉ ®L¡e A¢drœl Ae¤l©f fËL«¢a J …eNaj¡el fZÉl j§mÉ¢i¢šl a¥me¡u ®O¡¢oa j§mÉ ¢i¢š EõMk¡NÉ f¢lj¡Z Lj, h¡

(M) glj "j§pL-1' fËc¢nÑa j§mÉ pwk¡Sel f¢lj¡Z EõMk¡NÉ i¡h Lj, h¡

(N) fZÉl plhl¡qL¡l£ J plhl¡q NËq£a¡l jdÉ ¢hcÉj¡e ®L¡e pÇfLÑl L¡lZ h¡ a¡q¡cl f¡lØf¡¢lL h¡ ®k ®L¡e HL frl B¢bÑL p¤¢hd¡ m¡il EŸnÉ ®O¡¢oa j§mÉ¢i¢š EõMk¡NÉ i¡h Lj,

Hhw ®pC L¡lZ j§mÉ pwk¡Se Ll h¡, ®rœja, j§mÉ pwk¡Se Ll J pÇf¤lL öó Lj f¢ln¡¢da qCu¡R h¡ qCa f¡l, a¡q¡ qCm ¢hi¡N£u LjÑLaÑ¡, ¢eh¢åa hÉ¢J²L k¤¢J²p‰a öe¡e£l p¤k¡N fËc¡e Ll¡l fl, EJ²l©f pwNªq£a h¡ fË¡ç abÉl ¢i¢ša k¤¢J²p‰a j§mÉ¢i¢š ¢edÑ¡lZ L¢la f¡¢lhe Hhw ®O¡oZ¡l a¡¢lM qCa EJ² j§mÉ ¢i¢š Ae¤k¡u£ pw¢nÖV pLm Ll ®ju¡c fËcu Ll ¢el©fZ J f¢ln¡dk¡NÉ qChz

hÉ¡MÉ¡z- HC Ef¢h¢dl Ad£e ¢hi¡N£u LjÑLaÑ¡ La«ÑL j§mÉ¢i¢š J Ll ¢edÑ¡lZl L¡lZ, BCe h¡ ¢h¢dj¡m¡l Ad£e pwO¢Va ®L¡e Afl¡dl cä pÇf¢LÑa ¢hd¡el L¡kÑLla¡ r¥æ qCh e¡z]

ah naÑ b¡L ®k, ¢hi¡N£u LjÑLaÑ¡ j§mÉ ®O¡oZ¡ fË¡¢çl 15(fel) L¡kÑ¢chpl jdÉ Eõ¢Ma L¡kÑœ²j pÇfæ L¢la hÉbÑ qCm ®O¡¢oa j§mÉ ¢hou a¡q¡l ®L¡e Bf¢š e¡C h¢mu¡ NZÉ qChz

(4) ...............................

(5) ..........................

(6) d¡l¡ 5 Hl Ef-d¡l¡ (5) Ae¤k¡u£ h¡¢ZSÉ h¡V¡ fËc¡el ®rœ ¢eh¢åa hÉ¢J²L Bpm Hhw h¡¢ZSÉ h¡V¡ fËc¡el fl ®k j§mÉ fZÉ plhl¡q qCh ®pC j§mÉ Hhw ®k ®ju¡cl SeÉ h¡¢ZSÉ h¡V¡ L¡kÑLl qCh ®pC ®ju¡c EõM f§hÑL HL¢V S¡a£u ®~c¢eL ¢h‘¢ç fËQ¡l J pw¢nÔÖV ¢hi¡N£u LjÑLaÑ¡L Ah¢qa L¢la qCh Hhw h¡¢ZSÉ h¡V¡l f¢lj¡Z fËL«a j§mÉl fel na¡wnl A¢dL qCa f¡¢lh e¡ Hhw ®k ®L¡e h¡l j¡p pju ph¡ÑµQ ¢a¢ln ¢cel SeÉ h¡¢ZSÉ h¡V¡ fËc¡e Ll¡ k¡Chz

(7) Ef-¢h¢d (1) H k¡q¡C b¡L¥L e¡ ®Le, [L¢jne¡l] ¢eh¢åa hÉ¢J²l Bhceœ²j h¡ üaÄxfËhªš qCu¡ [h¡ ¢hi¡N£u LjÑLaÑ¡l Ae¤l¡dœ²j] fZÉl h¡S¡l j§mÉ EW¡e¡j¡l L¡le h¡ ay¡q¡l ¢hhQe¡u AeÉ ®L¡e ¢hno L¡lZ ®L¡e fZÉ h¡ fZÉ ®nËZ£l ®rœ Ll ¢el¦fel SeÉ j§mÉ ¢i¢š ¢Øbl L¢la f¡¢lhez

[ah naÑ bL ®k, ¢eh¢åa hÉ¢J²l Bhcel ®rœ, Bhce fË¡¢çl a¡¢lM qCa (fel) L¡kÑ¢chpl jdÉ L¢jne¡l EJ² Bhcel Efl ¢pÜ¡¿¹ fËc¡e L¢la hÉbÑ qCm ¢a¢e Bhce¢V j”¤l L¢lu¡Re h¢mu¡ NZÉ qChx

BlJ naÑ b¡L ®k, üaÄxfËhªš qCu¡ h¡ ¢hi¡N£u LjÑLaÑ¡l Ae¤l¡dœ²j j§mÉ ¢i¢š ¢Øbl Ll¡l ®rœ, L¢jne¡l ®L¡e fZÉ h¡ fZÉ ®nËZ£l j§mÉ ¢hou p¤f¡¢ln fËc¡el SeÉ, ®h¡XÑ La«ÑL Bcn à¡l¡ N¢Wa, j§mÉ ¢i¢š fkÑ¡m¡Qe¡ L¢j¢VL Ae¤l¡d L¢la f¡¢lhez]

(8) plhl¡qk¡NÉ fZÉl ®O¡¢oa j§mÉ a¡¢mL¡ fZÉ fËÙ¹aLlZ h¡ Evf¡ceØbml [h¡ hÉhp¡uØbml] HCl©f ®L¡e Øb¡e By¢Vu¡ l¡¢Ma qCh k¡q¡a Eq¡ pqSC cª¢ÖVN¡Ql quz]

[(9) ®k pLm Evf¡¢ca h¡ plhl¡qk¡NÉ fZÉl Efl BCe Hl d¡l¡ 5 Hl Ef-d¡l¡ (7) Ae¤k¡u£ ®h¡XÑ La«ÑL VÉ¡¢lg j§mÉ ¢edÑ¡lZ Ll¡ qCu¡R ®p pLm fËaÉL¢V fZÉl SeÉ ¢eh¢åa hÉ¢J²L glj "j§pL-1L' H EfLlZ- Evf¡c pÇfLÑ h¡ pqN (input-output co-efficient) pÇf¢LÑa HL¢V ®O¡oZ¡ pw¢nÔÖV Hm¡L¡l ¢hi¡N£u LjÑLaÑ¡l ¢eLV c¡¢Mm L¢la qCh Hhw ¢hi¡N£u LjÑLaÑ¡ EJ² ®O¡oZ¡ fœ k¡Q¡C h¡R¡C L¢lu¡ fË¡ç abÉ fËu¡Se pwn¡def§hÑL Ae¤j¡ce L¢lhe Hhw ¢eh¢åa hÉ¢J² EJ²l©f Ae¤j¡¢ca EfLlZ- Evf¡c pÇfLÑ h¡ pqNl ¢i¢ša VÉ¡¢lg j¤mÉl A¢de fZÉl fËcu j¤mÉ pwk¡Se Ll¡ h¡, ®rœja, j§mÉ pwk¡Se Ll J pÇf§lL öó ¢el©fZ J fËc¡e L¢lhex

ah naÑ b¡L ®k, ¢eh¢åa hÉ¢J² La«ÑL fËcš ®O¡oZ¡u ®L¡e f¢lhaÑe h¡ pwn¡de£ Beuel ®rœ ¢eh¢åa hÉ¢J²L k¤¢J²p‰a öe¡e£l p¤k¡N fËc¡e Lla qChz]

[3Lz ®ph¡l ®rœ j§mÉ pwk¡Se Ll d¡kÑÉl SeÉ j§mÉ ®O¡oe¡z- ®h¡XÑ, p¡d¡lZ h¡ ¢hno Bcn à¡l¡, Llk¡NÉ ®L¡e ph¡ fËc¡el ®rœ pw¢nÔÖV ¢eh¢åa hÉ¢J² LaªÑL j§mÉ pwk¡Se Ll d¡kÑÉl SeÉ j§mÉ¢i¢š ®O¡oZ¡ fËc¡el Bcn fËc¡e J ®O¡oZ¡l fÜ¢a ¢edÑ¡lZ L¢la f¡¢lhz]

11. It is pertinent to point out that the Deputy Commissioner by order dated 18.08.2002 fixed rate considering the market value in the following term:

“p§œ¡J² fœl j¡dÉj c¡¢MmL«a j§mÉ ®O¡oe¡ pwœ²¡¿¹ L¡NS fœ¡¢c fl£r¡ J pjS¡a£u/A¢iæ fZÉ Evf¡ceL¡l£ fË¢aÖW¡el j§mÉl p¡b p¡j”pÉ LlZ ab¡ L¢jne¡l jq¡cul Bcn fœ ew-4/H(36)j§pL/Ax ¢px ®L¡x/j§x Bf£m/j§xn¡M¡/2002/2642-43, a¡¢lM 09-06-2002 Cw ®j¡a¡hL Bfe¡cl L¡lM¡e¡l Evf¡¢ca fZÉ ¢ejÀl©f ¢edÑ¡¢la Ll¡l¡fk¡NÉ j§mÉ Ae¤j¡ce cu¡ qm¡z”

œ²¢jL ew

fZÉl e¡j

¢hœ²ul HLL

¢edÑ¡¢la Ll¡l¡fk¡NÉ j§mÉ

n¡q ¢pj¾V

50 ®L¢Sl fË¢a hÙ¹¡

188.00 V¡L¡

(HLna AÖV¡¢n V¡L¡)

EmÉMÉ, Ae¤j¡¢ca j§mÉ, j§mÉ ®O¡oe¡l a¡¢lM ®bL L¡kÑLl qhz

ü¡x AØfÖV

10/0/02

(®j¡x BSj-C-p¡ca)

Xf¤¢V L¢jne¡l

12. On appeal, the commissioner on considering different method affirmed the order of the Deputy commissioner on the following terms:

“¢hi¡N£u LjÑLaÑ¡ S¡e¡e ®k, ¢a¢e ®h¡XÑl p¡b ®k¡N¡k¡N Ll S¡ea ®flRe ®k, ®h¡XÑ La«ÑL N¢Wa j§mÉ ¢i¢š L¢j¢Vl p¤f¡¢lnL«a j§pL Bl¡fk¡NÉ e§ÉeÉaj j§mÉ 188.00 V¡L¡ Q¥s¡¿¹ i¡h L¡kÑLl Ll¡ qµRz ®p ®j¡a¡hL ¢a¢e EJ² e§eÉaj j§mÉ ¢i¢šLC NËqZk¡NÉ j§mÉ ¢i¢š ¢qp¡h ¢eÜ¡ÑlZ LlRez

BhceL¡l£l hJ²hÉ J ¢hi¡N£u LjÑLaÑ¡l L¡kÑœ²jpq p¡jNË£L ¢hou¡¢c fkÑ¡m¡Qe¡ Ll¡ qm¡z ¢pj¾Vl j§mÉ¢i¢š L¢j¢Vl p¤f¡¢lnl f¢lfË¢ra Na 10-09-02 Cw a¡¢lM ®h¡XÑl ¢cL ¢ecÑne¡ fœ ew- 1(14) j§x h¡Ù¹h¡uex fZÉ/96(Awn-1)/127 Hl j¡dÉj ¢pj¾Vl j§pL Bl¡fk¡NÉ phÑ¢ejÀ j§mÉ 188.00 V¡L¡ ¢eÜ¡Ñ¢la qh jjÑ ¢ecÑn fœ f¡Ju¡ ®NRz ®p L¡lZ fË¢a 50 ®L¢S hÉ¡Nl j§mÉ 188.00 V¡L¡l e£Q Ae¤j¡cel ®L¡e AhL¡n ®eCz a¡C ay¡cl Bhce NËqe Ll¡ qm¡ e¡z ¢hi¡N£u LjÑLaÑ¡ La«ÑL Ae¤j¡¢ca j§mÉC a¡cl j§pL fËc¡el ¢ecÑn fËc¡e Ll¡ qm¡z

ü¡x AØfÖV

(®j¡x Sýl¦m qL)

L¢jne¡l

13. The VAT Appellate Tribunal, later affirmed the order of the Deputy Commissioner relating to fixing the price but considering the findings of the commissioner on the following terms:

S¡a£u l¡Sü ®h¡XÑl Bcn à¡l¡ N¢Wa j§mÉ ¢i¢š fkÑ¡m¡Qe¡ L¢j¢V La«ÑL p¤f¡¢lnL«a fË¢ahÉ¡N ¢pj¾Vl phÑ¢ejÀ j§pL Bl¡fk¡NÉ j§mÉ ¢i¢š 188/- V¡L¡ Ae¤k¡u£ pw¢nÔÖY~ ¢hi¡N£u LjÑLaÑ¡ j§mÉ ¢edÑ¡lZ L¢lu¡ ®k Bcn fËc¡e L¢lu¡Re Hhw EJ² Bcn hq¡m l¡¢Mu¡ ¢h‘ L¢jne¡l ®k Bcn fËc¡e L¢lu¡Re a¡q¡ p¢WLz EJ² Bcn qÙ¹rf Ll¡l ®L¡e L¡lZ ®cM¡ k¡u e¡z AhØb¡d£e Aœ Bf£m e¡j”¤l qChz

AaHh,

Bcn

Aœ Bf£m ®c¡alg¡p§œ e¡j”¤l Ll¡ qCmz L¢jne¡l, L¡ØVjp, H„¡CS J iÉ¡V Y¡L¡ (c¢re), Y¡L¡ La«ÑL fËcš Bcn 4/H(26) n¡q ¢pj¾Y~ Cä¡/j§mÉ Ae¤x/®VL/2002 /4515, a¡¢lM 10-9-2002 hq¡m l¡M¡ qCmz

ü¡x/ 12-6-2003

(L¡S£ nq£c¤m qL)

pcpÉ (®VL¢eLÉ¡m)

ü¡x/ 12-6-2003

(Bm£ jep¤l)

pcpÉ (¢hQ¡l)

14. Therefore, from the aforesaid observations we find that the considerations made the VAT Appellate Tribunal and commissioner are quite inconsistent and contradictory to that of the observations made by the Deputy Commissioner.

15. Section 5(7) of the Value Added Tax Act, 1991 (in short, the Act) allows the Board to fix price, VAT in special cases only and that must be done through gazette notification. According to sub-rule 7 of rule 3 of the Rules, the Commissioner may fix the price as per recommendation of base value Review Committee constituted by the Board. Therefore, the VAT authority cannot fix the base value according to its sweet will and it is only the manufacturer who can fix the actual price. If the price declared by the appellant is supported by the documents and as per law, the VAT authority without verifying the market and conducting any investigation still cannot fix the price.

16. In the case of BOC Bangladesh Ltd. vs National Board of Revenue and others 67 DLR (AD)-372 held:

Value Added Tax Act (XXII of 1991)

Section 5(7)

Section 5(7) of the Ain allows the Board to fixing price, VAT in special cases only and that must be done through gazette notification.

Value Added Tax Rules, 1991

Rule 3(7)

The Commissioner may fix the price as per recommendation of base value Review Committee constituted by the Board. The VAT authority cannot fix the base value according to its sweet will and it is only the manufacturer who can fix the actual price. If the price declared by the appellant is supported by the documents and as per law, the VAT authority without verifying the market and conducting any investigation still cannot six the price.

Value Added Tax Rules, 1991

Rule 3(3)

Because of failure to provide any objection within 10 working days of receipt of the price declaration it shall be deemed that the VAT authorities had no objection regarding the price declaration according to the proviso to sub-rule (3) of rule 3 and the appellant is entitled to pay VAT as per price declaration.

Value Added Tax Rules, 1991

Rule 3(3)

Sub-rule (3) of rule 3 provides that VAT authorities are required to intimate in writing to the VAT registered person their objection, if any, regarding the price declaration within 10 working days of receiving the price declaration.

17. In the case in hand, the VAT authority did not follow the procedure laid down in section 5(7) of the Act and Sub-Rule(7) of rule 3 of the Rules 1991 and therefore, the price fixed by the authority is not sustainable in law.

18. Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. Therefore, the submissions advanced by the learned counsel for the petitioner are the correct exposition of the laws and facts. We have gone through the decisions as referred by him. We are in respectful agreement with the principles enunciated therein, and the same is quite applicable in the instant case. Therefore, we are inclined to accept his submissions. On the Contrary we failed to discover any merit in the submissions advanced by the learned Deputy Attorney General.

19. In the light of discussions made above and the preponderant judicial views emerging out of the authories referred to above, we are of the view that the impugned order suffers from legal infirmities. Thus the Rule Nisi having merit succeeds.

20. In view of foregoing narrative the Rule is made absolute. The impugned order and decision dated 12.06.2003 (Annexure-F) passed by the respondent No.1 vide Nothi No. CEVT/CASE (VAT) DHAKA-92/2002 and communicated to the petitioner on dated 24.7.2003 affirming the order bearing Nothi No. 4/A(26)Shah Cement/Mulla Anu: /Tek/ 2002/4515(3) dated 10.9.2002 passed by the respondent No.2, and communicated to the petitioner on 10.9.2002 (Annexure-D) annexed to the writ petition fixing the price of the cement is hereby declared to have been made without lawful authority and of no legal effect.

Office is directed to send down the record and to communicate the order at once.

Ed.

Writ Petition No. 5491 of 2003

Shah Dairy Products Limited Vs. Commissioner, Customs, Excise and VAT Chittagong and others, 52 DLR (HCD) (2000) 72

Case No: Writ Petition No. 2069 of 1998

Judge: Kazi Ebadul Hoque,

Court: Appellate Division ,,

Advocate: Mr. Rokanuddin Mahmud,,

Citation: 52 DLR (HCD) (2000) 72

Case Year: 2000

Appellant: Shah Dairy Products Limited

Respondent: Commissioner, Customs, Excise and VAT

Subject: Interpretation of Statute, Fiscal Law,

Delivery Date: 1999-6-7

Supreme Court
Appellate Division
(Special Original Jurisdiction)

Present:
Kazi Ebadul Hoque, J.
Md. Muzammel Hossain, J.

Shah Dairy Products Limited
………………Petitioner
Vs.
Commissioner, Customs, Excise and VAT Chittagong and others
…………Respondents

Judgment
June 7, 1999.

Interpretation of Taxing Statutes
Not tax can be imposed on a person without using unambiguous and clear words by which tax is imposed.
When the language of the statute is clear and unambiguous saying that the goods is essential, petitioner cannot escape the liability of paying the duty.

Cases Referred To-
Cape Brandy Syndicate Vs. Inland Revenue Commissioner (1921)11 KB 64; Russell Vs. Scott (1948) AC 422 (6 & 7).

Lawyers Involved:
Rokonuddin Mahmud with Mobina Asif Rahman, Advocates—For the Petitioner.
Quazi Rezaul Hoque, Advocate—For Respondent No.1.

Writ Petition No. 2069 of 1998

JUDGMENT

Kazi Ebadul Hoque J.

1. This Rule was issued at the instance of the petitioner Shah Dairy Products Ltd., calling upon the respondents to show cause as to why imposition of supplementary duty on the import of milk powder by the petitioner as evidenced by Ex-Bond Bills of Entry No.C69121 dated 2-7-98 and No.C676646 dated 8-7-98 No.C70199 dated 9-7-98 and No.C67668 dated 28-6-98 (Annexure ‘F’ series) and on the supply of the same milk powder of the petitioner as made by Memos being File No.4th/A(12)18/VAT Shah Dairy/9/1147 dated 14-6-98, File No.4^th/A(12) VAT/Shah Dairy/96/1313 dated 16-6-98 and File No.4th/A(12)2/VAT/Budget/98/3404-7 dated 18-6-98 (Annexure-’F’ series) shall not be declared to have been made without any lawful authority or of no legal effect.

2. Learned Advocate for the petitioner after placing the petition and other materials on record submitted that imposition of 2.5% supplementary duty on the imported milk powder by section 7(15) of the Finance Act, 1998 by including the same in the Third Schedule of the Value Added Tax (VAT) Act, 1991 is contrary to the provisions of section 7 of the said Act and the said section 7 having provided for imposition of such supplementary duty on luxury, socially undesirable and unessential goods, imposition of the same on essential goods like milk powder by section 7(15) of the said Finance Act is ultra vires of said section 7 of the VAT Act. He further submitted that imposition of 2.5% on the import of milk powder once and again on the supply of the same is double taxation and as such the same is arbitrary, malafide and without any lawful authority. He further submitted that without clear and unambiguous words by implication any provision of law, tax cannot be imposed on a person.

3. It appears that the petitioner company imports milk powder in bulk packs from abroad and repacks the same in its factory keeping the same in the bonded warehouse into various sizes of packets and then sells the same to the buyers. Before the Finance Act 1998 petitioner company paid 40% customs duty and 15% VAT on the imported milk powder under HS code No. 04.02 and was not subject to supplementary duty as the same was essential and baby food item. Section 7(15) of the Finance Act, 1998 amended the Third Schedule of the VAT Act and included milk powder making the import of the same liable to payment of 2.5% supplementary duty. All the milk powders taken out of petitioner’s bonded ware-house since 11-6-1998 have been subjected to payment of supplementary duty at the rate of 2.5%. Petitioner claims that by Annexure-’F’ series respondents demanded 2.5% supplementary duty on all supplies of the milk powder made by the petitioner in addition to the supplementary duty already paid by the petitioner on the imported milk powders. Petitioner also claims that without express provision in the charging section 7 of VAT Act imposition and realisation of supplementary duty on the import and supply of milk powder merely by the inclusion of the same in the Third Schedule of the said Act by section 7(15) of the Finance Act, 1998 is not only arbitrary and mala fide but also without any lawful authority.

4. Value Added Tax (VAT) Act, 1991 came into force on 2nd June and 1st July, 1991 respectively in respect of different provisions of the said Act. Section 3 of the said Act provides for assessment and payment of VAT at the rate of 15% on the import of goods at the stage of import, goods produced in Bangladesh at the stage of making or manufacture, services by the person at the, time of giving the service and in other cases by the supplier. Luxury goods, unessential and socially undesirable goods and services mentioned in the Third Schedule supplied, imported or given in Bangladesh shall be liable to imposition of supplementary duty at the rates mentioned in the said schedule under the provision of section 7 of the said Act. In the Third Schedule of the VAT Act, 1991 milk powder was not included at the time of passing the said Act. By section 7(15) of the Finance Act, 1998. Third Schedule of the VAT Act, 1991 was substituted by the Fourth Schedule of the said Finance Act and by such substitution, amongst others, milk powder was included in the Third Schedule of the VAT Act and the import of the same was made liable to payment of 2.5% supplementary duty.

5. Now the question raised to this Rule is whether such duty can be imposed by merely including the said goods in Third Schedule without amending the corresponding charging section 7 of the said Act and whether milk powder is an unessential goods making it liable to such duty: In other words, whether by implication such duty can be imposed in the absence of clear words in the said Act.

6. Before we consider the provisions of section 7 of the VAT Act, 1991 and provisions of section 7(15) of the Finance Act 1998 which includes milk powder imposing 2.5% supplementary duty in the Third Schedule of the said Act of 1991 let us see whether tax or duty can be imposed by ambiguous words used in a statute. In the case of Cape Brandy Syndicate Vs. Inland Revenue Commissioner reported in (1921)11 KB 64 it has been held that a person who had no pre-war trade or business could not be imposed tax under the Finance Act 1915. In that case it was observed: “In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used.” In the case of Russell Vs. Scott reported in (1948) AC 422 it has been held by the Privy Council that a sand pit is not a concern of like nature of the concerns enumerated in rule 3 of No. III of the schedule of the Income Tax Act 1918 of Ireland. In that case Viscount Simon observed- “I feel that the taxpayer is entitled to demand that his liability to a higher charge should be made out with reasonable clearness before he is adversely affected.” In that case Lord Porter observed:

“There is a maxim of income tax law which though it may sometimes be overstressed, yet ought not to be forgotten. It is that the subject is not to be taxed unless the words of the taxing statute unambiguously impose the tax upon him.”

7. From the above decisions it is clear that no tax can be imposed on a person without using unambiguous and clear words by which tax is imposed.

8. In section 7 of the VAT Act, 1991 it has been clearly stated that supplementary duty shall be imposed on the luxury, unessential and socially undesirable goods and services supplied, imported or given in Bangladesh as mentioned in the Third Schedule of the said Act at the rates mentioned therein. Originally milk powder was not included in that schedule and by section 7(15) of the Finance Act, 1998 Third Schedule was amended and milk powder and other goods and services were included therein. Charging Section 7 only speaks of goods and services which are luxury, unessential and socially undesirable and Third Schedule includes the names of such luxury, unessential and socially undesirable goods and services. By including milk powder in the Third Schedule legislature clearly showed that milk powder is either luxury, or unessential or socially undesirable goods. When legislature has termed it so can the Court embark on an enquiry as to the nature of the said goods. In a given social context a goods may be luxurious or unessential or socially undesirable to the whole community or a section of it. It is a debatable proposition. When legislature termed it so we cannot reopen the same as wisdom of the Legislature cannot be questioned by us. Legislature represents the entire community and it was the plenary power to make law subject to the limitation imposed by the Constitution. In such capacity when the legislature included milk powder in the Third Schedule imposing 2.5% supplementary duty on the same we can only look to the words used as to whether imposition of the same has been made in an unambiguous and clear language and cannot question its wisdom. Inclusion of the words, milk powder” imposing “2.5%f supplementary duty,” in the Third Schedule in our view is very clear and unambiguous and there is no room for any doubt about the same. Even a lay man will clearly understand that by the Finance Act, 1998 2.5% supplementary duty has been imposed on the import of milk powder to Bangladesh. When language of the said statute is so clear and unambiguous merely saying that the said goods is essential petitioner cannot escape the liability of paying the said duty.

9. Schedule of a statute is very much part of the statute and inclusion or exclusion of any item in or from the schedule of the statute can be made by the legislature only. In the instant case inclusion of the milk powder imposing 2.5% supplementary duty on the same in the Third Schedule of the VAT Act, 1991 was made by the legislature by the Finance Act 1998 and not by any executive authority by any notification or circular and, as such, schedule is not subordinate legislation by the executive authority. Only when a subordinate legislation like rules is made by the executive authority in exercise of power vested under the parent law then the vires of such subordinate legislation can be questioned on the ground of its being in excess of such power or in conflict with the provisions of the parent law. But there is no scope for questioning the vires of any item included in the schedule of a statute by the legislature on the ground of its being not in conformity with the charging section. Charging section is couched in general terms and the schedule clarifies the same in specific term to avoid any ambiguity. We have already seen that there is no ambiguity in the inclusion of milk powder imposing 2.5% supplementary duty on the same in the Third Schedule of the VAT Act, 1991 and there is also no conflict with the same and the charging section 7 thereof.

10. It is not clear from the Exbond assessment notices Annexure ‘F’ series that supplementary duty at the rate of 2.5% was realised from the petitioner on the imported milk powder since 11-6-98. Even if it is assumed that the petitioner paid 2.5% supplementary duty on the import of milk powder there is nothing in the notices Annexures “F’ series to show that 2.5% supplementary duty was again charged from the petitioner. By the said notices petitioner was asked to add 2.5% supplementary duty in calculating price of the milk powder produced (possibly meant repacked) by it for purpose of payment of 15% VAT on such price since 14-6-98 and to file declaration of such price to the VAT authority. On consideration of the materials on record we find no substance in the contention that 2.5% supplementary duty was charged from the petitioner once on the import and then on the sale of milk powder by it.

In the above facts and circumstances we find no merit in this Rule.

In the result, the Rule is discharged without any order as to cost.

Ed.

Shah Newaz Ebne Mostaque and others Vs. Shah Alam and others, 55 DLR (AD) (2003) 69

Case No: Civil Petition for Leave to Appeal No. 993 of 1999

Judge: Mainur Reza Chowdhury ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: 55 DLR (AD) (2003) 69

Case Year: 2003

Appellant: Shah Newaz Ebne Mostaque and others

Respondent: Shah Alam and others

Subject: Limitation, Procedural Law,

Delivery Date: 2002-3-4

Supreme Court
Appellate Division
(Civil)

Present:
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Md. Ruhul Amin J

Shah Newaz Ebne Mostaque and others
........................Petitioners
Vs.
Shah Alam and others
........................Respondent

Judgment
March 4, 2002.

The Limitation Act, 1908 (IX of 1908)
Article 181
As the execution case was pending, it was not hit by Article 181 of The Limitation Act and it is the duty of the court to proceed with the same suo muto and the decree holder is not required to file an application to proceed with the pending execution case………(4)

Lawyers Involved:
Md. Nawab Ali, Advocate‑on‑Record‑For the Petitioners
Not represented‑The Respondents.

Civil Petition for Leave to Appeal No. 993 of 1999.
(From the judgment of the High Court Division in Civil Revision No. 2849 of 1992.)

JUDGMENT

Mainur Reza Chowdhury J.

The instant civil petitioner for leave to appeal by judgment‑debtor‑petitioners arises from the judgment passed by a Single Judge of the High Court Division in Civil Revision No. 2849 of 1992 making the Rule absolute and setting aside the Order No. 24 dated 26‑10‑1992 passed by the Senior Assistant Judge, Sadar Cox's Bazar in other Execution Case No. 70 of 1964 allowing an application under section 15 1 of the Code of Civil Procedure and striking off the execution case as barred by limitation and directing restoration of possession to the judgment debtors‑petitioners in the suit property.

2. The facts are that the plaintiff respondents brought Title Suit No. 173 of 1961 in the Court of the then Munsif, Cox's Bazar against the petitioners for declaration of his title to the suit land and for khas possession after demolition of the structures standing thereon. The trial Court decreed the suit of the plaintiff‑respondent by his judgment and decree dated 14‑1‑1963. Against the aforesaid judgment and decree the defendant petitioners preferred Title Appeal No. 86 of 1963 in the Court of District Judge, Chittagong. The appeal was heard by the Subordinate Judge, 3rd Court, Chittagong, who by his judgment and decree dated 10‑2‑1964 dismissed the appeal and affirmed the judgment and decree of the trial Court. After disposal of the aforesaid title appeal the plaintiff‑respondent put the decree to execution by starting Execution Case No. 70 of 1964 in the Court of Senior Assistant Judge, Cox's Bazar. On the other hand, the defendant‑judgment‑debtor petitioners preferred Second Appeal No. 583 of 1964 before the then East Pakistan High Court and the High Court was pleased to stay all further proceedings of other Execution Case No. 70 of 1964 on 4‑12‑1964 till disposal of the Second Appeal. The Second Appeal No. 583 of 1964 was dismissed for default on 4‑8‑1978. On the death of the plaintiff decree‑holder and judgment debtor defendant Nos. 1‑3, their legal heirs, were duly substituted in Execution Case No. 70 of 1992. The heirs of decree‑holder filed an application for proceeding with the execution case and the Assistant Judge, Cox's Bazar allowed the prayer by his order dated 27‑5‑1992 and fixed 3‑6‑1992 for taking necessary steps in the case. By an order dated 3‑6‑1992 the Assistant Judge directed the decree‑holder to deposit Rs 300 as fee of the Nazir and Advocate Commissioner for local inspection of the suit land and ascertain if there were huts standing on the suit land. The Advocate Commissioner was appointed who inspected the suit land and submitted his report. The Nazir of the court delivered possession of the land to the decree‑holder plaintiff on 9‑6‑1992. The judgment debtor petitioners thereafter filed written objection against the report of the Nazir on 10‑6‑1992 and 29‑6‑1992. The application filed on 29‑6‑1992 was under section 151 of the Code of Civil Procedure stating, inter alia, that the starting of execution case on 20‑5‑1992 was not intimated to the judgment debtors or their Advocate and that the schedule of the decree was vague and indefinite and that the execution case in question was barred by limitation and their possession of the suit land be restored to them.

3. The decree holders contested the application of the judgment debtors stating, inter alia, that the judgment debtors and their engaged lawyer had knowledge of the execution case right from 20‑5‑1992 and the notices were duly served upon the substituted heirs of the original judgment debtors and that the execution proceeding was not barred by limitation. The learned Senior Assistant Judge, Cox's Bazar heard both sides on 26‑101992 and allowed the application of the judgment debtors and directed restoration of possession of the suit land in favour of the judgment debtors petitioners upon a finding that the execution proceeding was barred by limitation.

4. Being aggrieved by the said judgment and order the decree holders plaintiff‑respondent moved the High Court Division under section 115 of the Code of Civil Procedure. The High Court Division found that the executing court had held that the other Execution Case No. 70 of 1964 was barred by limitation as per provisions of article 181 of the Limitation Act as the case was ‘revived' after about 14 years since the dismissal of the Second Appeal No. 5 83 of 1964 on 4‑8‑1978. Article 181 of the Limitation Act provides for a limitation of 3 years with respect to application for which no period of limitation is provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908. Section 48 of the Code of Civil Procedure as mentioned in Article 181 provides for a limitation of 12 years in a case where an application is made to execute a decree. Neither in Article 181 of the Limitation Act nor in section 48 of the Civil Procedure Code the term ‘revival' occurs. Neither refers to pending cases. Admittedly the decree holder respondents started the instant execution case on 18‑4‑1964 which was well within the period of limitation of 3 years from the decree. The High Court Division found that the case had a chequered history after the filing of the suit in year 1961. It culminated in the dismissal of the Second Appeal No. 583 of 1964 on 4‑8‑1978. This second appeal was taken by the judgment debtors‑petitioners. So, it was clear that the judgment debtors were not altogether in the dark about the proceedings of the case. The judgment debtor had filed an application for passing an order that the execution proceeding was barred by limitation and that possession of the suit property had been restored to them. The High Court Division was of the view that the central point that called for determination was whether the execution proceeding was barred by limitation for not having been proceeded with for a period of about 14 years and whether the period of limitation would be guided and governed by either article 181 of the Limitation Act or under section 48 of the Code of Civil Procedure. It was of the opinion that article 181 of the Limitation Act or section 48 of the Code of Civil Procedure would be applicable in a case where application was made for the execution of the decree for the first time. The High Court Division referred to decision reported in AIR 1964 (Assam) 64, AIR 1940 (Allahabad) 151 (FB). In the Allahabad case it was revealed that mortgage suit was decreed on the 5th January 1928 and final decree under Order XXXIV rule 5 of the Code of Civil Procedure was passed in favour of the mortgagee 9th August, 1928. The decree holders applied for execution of the decree on 19th December 1930. The matter passed through several stages. The decree holders then applied for execution of the mortgage decree against the judgment debtors on 25th July, 1935. The judgment‑debtors objection was that it was barred by limitation. In the course of arriving of the decision by the full Bench several decisions were referred to and relied upon and it was the considered view that the decree‑holders were not required to file an application for proceeding with the pending execution case and it was the duty of the court to proceed with the same suo moto. The High Court Division therefore held that in the instant case the responsibility lay with the executing court to proceed with the execution case suo moto after dismissal of Second Appeal No. 5 83 of 1964 and therefore, the executing court had wrongly held that the execution case in question was barred by limitation as per provision of Article 181 of the Limitation Act. The execution case was a pending case and was not hit by Article 181 of the Limitation Act. The impugned judgment and order was therefore held to be not legally sustainable by the High Court Division.

5. We are in agreement with the judgment of the High Court Division that the Execution Case No. 70 of 1964 having been filed on 18‑4‑1964 i.e. within 3 years from the date of decree on 10‑21964 it was well within the period of limitation under Article 181 of the Limitation Act and section 48 of the Code of Civil Procedure.

The petition is therefore dismissed.

Ed.

Shahabuddin and others Vs. Mahtab Uddin & others

Case No: Civil Petition for Leave to Appeal No. 812 of 2005.

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Abdur Razzak,,

Citation: VI ADC (2009) 229

Case Year: 2009

Appellant: Shahabuddin and others

Respondent: Mahtab Uddin & others

Subject: Property Law,

Delivery Date: 2006-11-30

Shahabuddin and others Vs. Mahtab Uddin & others
VI ADC (2009) 229

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J

Shahabuddin and others…………………….Petitioners
Vs.
Mahtab Uddin & others.................Respondents

Judgment
November 30, 2006.

The High Court Division held that from the evidence on record it is clear that defendant Abdul Haque resided in the suit land for over 35 years and he was brought up by Firoj Ali from his boyhood and was given in marriage by Firoz Ali and after his death his heirs, the present defendants have been residing in the suit land and that Abdul Haque constructed dwelling hut in the suit homestead. The High Court Division further held that it has not been proved that Abdul Haque was a licensee under Firoj Ali. The High Court Division also held that it is the case of plaintiff that the defendant No.1 raised hut on the suit land and on local inspection by the Advocate Commissioner he also found so and no objection was raised by the plaintiff against such construction of hut by the defendants. ….. (6)

Therefore, the findings of the High Court Division that the nature of license was not proved by the plaintiff and in the facts and circumstances of the case, the defendant No.1, if a licensee at all, could not be asked to vacate the suit land without revoking the license. …. (7)

Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Sufia Khatun, Advocate-on- Record-For the Petitioners.
Abdur Razzak, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent Nos. 1, 3.
Not represented- Respondent No. 2, 4-30.

Civil Petition for Leave to Appeal No. 812 of 2005.
(From the judgment and order dated 05.03.2005 passed by the High Court Division in Civil Revision No.3195 of 1998.)

Judgment

M.M. Ruhul Amin J. - This petition for leave to appeal is directed against the Judgment and order dated 05.03.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3195 of 1998 making the Rule absolute.
2. Short facts are that the plaintiffs instituted Title Suit No. 269 of 1966 in the Court of Munsif(now Assistant Judge), Borolekha, Moulvibazar impleading one Abdul Huque the predecessor in interest of the present petitioners as defendants and opposite party Nos.3-27 and others raying for a decree for declaration of title and recovery of khas possession in the suit land as described in the schedule to the plaint stating, inter alia, that two full mothers, namely, Firoz Ali and Hasan Ali were owners of the suit land. Hasan Ali transferred his share in favour of his brother Firoz Ali by a registered kabala dated 8th Sraban, 1330 B.S. and shifted to his father-in-law's house at Shafarpur and died there leaving behind two sons as heirs through his two wives. The defendant No.1 who is son of Hasan Ali through his first wife, finding himself in difficulty in living with his step brothers and sisters obtained permission from Firoj Ali to live with him as a licensee and accordingly defendant No.1 by erecting a hut has been residing in Plot No.2 of the suit land as a licensee. The further case of the plaintiff is that the defendant No.1 used to look after all the affairs of Firoj Ali and taking advantage there of the defendant No.1 got his name recorded in the Khatian and subsequently when the plaintiffs who are sons of Firoj Ali directed the defendant No.1 to vacate the suit land, the latter refused and hence is the suit.
3. The defendants contested the suit by filing written statement denying the material allegations made in the plaint. Their case is that the defendant No.1 was never a licensee in the suit land under Firoj Ali but he had been possessing the suit land for long over 35 years and acquired title by adverse possession. Their further case is that the suit land originally belonged to two brothers, namely, Hamid Ali and Maidar Ali and by amicable partition Hamid Ali was residing on the southern half portion and Hamid Ali died leaving behind three sons in Joyed Ali, Khorshed Ali and Wasid Ali. Hasan Ali transferred his share in favour of the Firoj Ali in 1330 B.S. Firoj Ali subsequently purchased the share of Joyed Ali and he is residing on his purchased property for over 40 years. The further case is that due to good relationship no formal kabala was executed by Joyed Ali and others in favour of Hasan Ali and record of right was correctly prepared. So the suit is liable to fail.
4. The trial court decreed the suit. On appeal in Title Appeal No.125 of 1986, the court of appeal dismissed the appeal and affirmed the judgment and decree of the trial court. Being aggrieved the defendants moved the High Court Division and obtained the Rule which was made absolute.
5. We have heard Mahbubey Alam, the learned Counsel for the petitioner and Abdur Razzak, the learned Counsel for the respondent Nos.1 and 3 and perused the judgment of the High Court Division and other connected papers.
6. The High Court Division held that from the evidence on record it is clear that defendant Abdul Haque resided in the suit land for over 35 years and he was brought up by Firoj Ali from his boyhood and was given in marriage by Firoz Ali and after his death his heirs, the present defendants have been residing in the suit land and that Abdul Haque constructed dwelling hut in the suit homestead. The High Court Division further held that it has not been proved that Abdul Haque was a licensee under Firoj Ali. The High Court Division also held that it is the case of plaintiff that the defendant No.1 raised hut on the suit land and on local inspection by the Advocate Commissioner he also found so and no objection was raised by the plaintiff against such construction of hut by the defendants.
7. Therefore, the findings of the High Court Division that the nature of license was not proved by the plaintiff and in the facts and circumstances of the case, the defendant No.1, if a licensee at all, could not be asked to vacate the suit land without revoking the license.
8. In view of the discussions made above, we are of view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.
Accordingly, the leave petition is dismissed.
Ed.

Shahabuddin Chisti Vs. Rajdhani Unnayan Katripakhya and another

Case No: Civil Appeal No. 33 of 2006.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. A. K. M. Nazrul Islam,,

Citation: 61 DLR (AD) (2009) 73

Case Year: 2009

Appellant: Shahabuddin Chisti

Respondent: Rajdhani Unnayan Katripakhya and another

Subject: Property Law,

Delivery Date: 2008-07-28

Shahabuddin Chisti Vs. Rajdhani Unnayan Katripakhya and another
61 DLR (AD) (2009), 73

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Abdul Matin J

Shahabuddin Chisti …........Appellant
Vs.
Rajdhani Unnayan Katripakhya and another.........Respondents

Judgment
July 28, 2008.

Building Construction Act (II of 1953)
Sections 3, 14, 15 & 17
Town Improvement Act (XIII of 1953)
Section 169

Preservation of the lake and to maintain a road and walkway with reasonable slope around the lake is a public purpose. Accordingly, this Division directs that with that end in view the land inside the periphery of the lake should be acquired in the public interest and the same should be maintained in a similar manner for preserving the lake with a road and walkway with reasonable slope towards water.

Case Referred To-
Prof. Dr. Niaz Zaman Vs. Rajdhani Unnayan Kartipakkhya and others.

Lawyers Involved:
Khondker Mahbubuddin Ahmed Senior Advocate, instructed, by S.R. Khoshnabish, Advocate-on-Record-For the appellant.
A.K.M. Nazrul Islam, Senior Advocate instructed by Waliul Islam, Advocate-on-Record-For Respondent No. 1.
None represented-For Respondent No.

Civil Appeal No. 33 of 2006.
(From the judgment and order dated the 3rd day of August, 2004 passed by the High Court Division in Appeal from Original Decree (F.A.) No. 2 19 of 2002).

Judgment

Mohammad Fazlul Karim J.- This Appeal, by leave, is directed against the judgment and order dated 03.08.2004 passed by the High Court Division in First Appeal No.219 of 2003 allowing the appeal setting aside the judgment and decree dated 20.02.2003 passed by the Joint District Judge, 1st Court, Dhaka in Title Suit No. 99 of 1999 decreeing the same.

2. The facts of the case, in short, are that the plaintiff appellant instituted Title Suit No.99 of 1999 for declaration that the suit property is his personal property and that the suit property is not a play ground or an open field or a water reservior/river and also for declaring memo dated 06.04.1999 issued by the defendant No.1 Rajdhani Unnayan Katripakkhya in short RAJUK as illegal, without jurisdiction and not binding upon the plaintiff.

3. In the plaint it was asserted, inter alia, that the suit land belonged to Israt Reba Mohammad Zunaid and Shamim Ara Rafique who proposed to sell the property to the plaintiff and accordingly on 05.10.1991 an agreement was executed between the parties and subsequently, the executors refusing to executed the deed of sale the plaintiff appellant filed Title Suit No.46 of 1997 for Specific Performance of Contract and the suit being decreed, in Execution Case No.1 of 1998 a deed of sale was executed and registered in favour of the plaintiff who thereafter mutated his name in the Government sheresta and paid rents to the Government and in order to construct a multi-storied building on the suit land applied to the RAJUK and RAJUK by memo dated 25.03.1998 approved the plan and erected boundary wall, raised earth and made pilling works and got electricity connection and stored construction materials in the suit property and advanced huge amount for supplying construction materials and the plaintiff on 24.01.1999 entered into an agreement with the Entrium Real Estate for making construction on the suit land and in terms of the agreement the Real Estate invested TK.30,00,000.00 for making the construction and while the plaintiff through developer was starting construction he was surprised to receive memo, dated 06:04.1999 from RAJUK withdrawing the approval of the plan and directing him to take the amount deposited by him for approval of the plan alleging that the suit property was open field, water reservoir and river. The plaintiff then requested the defendant No.1 RAJUK to revoke the aforesaid memo dated 06.04.1999 but to no effect and hence filed the suit and that during pendency of the suit the defendant No.1 dispossessed the plaintiff and took forcible possession and as such, the plaint was amended adding a prayer for recovery of khas possession of the suit land.

4. The defendant No.1 contested the suit filing written-statement contending, inter alia, that the suit plot was acquired in L.A. Case Nos. 55 of 58-59 and 10 of 63-64 and is part of Gulshan Lake and that Bangladesh Environment Ainjibi Samity filed Writ Petition No.2482 of 1998 wherein an ad-interim order was passed putting restriction on filing the lake by raising earth and the Manager of the plaintiff appellant was shown the aforesaid order of the Court and was requested not to proceed with the filling works and the Manager gave an undertaking not to proceed with any further work and that the land being acquired land of RAJUK the plaintiff had no right, title and interest therein and thus, had no locus standi to file the suit.

5. The learned trial Court after hearing the parties decreed the suit making, amongst others, the following findings; that after de-requisition, the original owner of the suit land got back the same; that the suit land is private property of the plaintiff and had never been part of lake; that the defendant approved the plan in due course but subsequently, without giving any notice withdraw the same which is violative of the principle of natural justice; that as the suit land not being the part of the lake the order passed in Writ Petition No. 2482 of 1998 is not enforceable in respect of the suit land and accordingly, decreed the suit by judgment and decreed dated 20.02.2003.
6. Against the aforesaid judgment and decree the defendant respondent No.1 preferred First Appeal No.219 of 2003 before the High Court Division and the High Court Division by the impugned judgment and order allowed the appeal as already mentioned above.

7. Hence, is this appeal.

8. Leave was granted to consider the submission of the learned Counsel for the appellant that "In view of the Sections 15, 17 of the Building Construction Act, 1952 and Section 169 of the Town Improvement Act, 1953 we find that the impugned judgment and decree passed by the trial Court suffers from gross illegality and not sustainable in the eye of law; that the issuance of impugned memo dated 06.04.1999 being not an act done under the provision of Town Improvement Act, 1953 or any rules or regulations made thereunder the notice as contemplated in Section 169 of the said Act is not required to be served before filling suit against RAJUK and as such, the High Court Division erred in dismissing the suit holding that the suit is bad for lack of notice under Section 169 of the Town Improvement Act, 1953; that withdrawal of the sanction by the impugned memo not for breach of any terms or condition or for making incorrect statement but the same was issued in compliance of direction of the office of the Prime Minister which cannot be held to be an exercise of Power under Section 9 of the Building Construction Act, and as such, the mischief of Section 14 of the Building Construction Act, 1952 does not attract the instant suit land therefore, the High Court Division erred in law in setting aside the decree of the trial Court holding the suit as not maintainable; that impugned memo dated 06.04.1999 is ex facie, illegal and without jurisdiction and has not been issued in exercise of power under Section 9 of the Building Construction Act, and the same is violation of principle of natural justice as held by the trial Court, the High Court Division erred in law in allowing the appeal; that having found title of the plaintiff to the suit land and admittedly, the defendant took forcible possession of the suit land, the High Court Division erred in law in not maintaining the decree so far as it relates to declaration of title and recovery of possession."

9. Khondker Mahbubuddin Ahmed, learned Counsel, appearing for the appellant submitted that issuance of impugned memo dated 06.04.1999 being not an act done under the provision of Town Improvement Act, 1953 or any rules or regulations made thereunder, notice as contemplated in Section 169 of the said Act is not required to be served before filling suit against RAJUK and, as such, the High Court Division erred in dismissing the suit holding that the suit is bad for want of notice under Section 169 of the Town Improvement Act, 1953; that withdrawal of sanction of plan by the impugned memo not for breach of any terms and conditions nor for making incorrect statement but in compliance of direction of the office of the Prime Minister cannot be held to be an exercise of power under Section 9 of the Building Construction Act, 1952 and as such, the suit does not fall within the mischief of Section 14 of the Building Construction Act, 7952 and the High Court Division erred in law in setting aside the decree of the trial Court holding the suit as not maintainable; that the impugned memo dated 06.04.1999 being ex-facie, illegal and without jurisdiction as not issued in exercise of power under Section 9 of the Building Construction Act, 1952 and the same being in violation of principle of natural justice, the High Court Division erred in law in allowing the appeal. The learned Counsel finally submitted that having found title of the plaintiff to the suit land and the defendant having admittedly taken forcible possession of the suit land, the High Court Division erred in law in not maintaining the decree passed by the trial Court.

10. A.K.M. Nazrul Islam, learned Advocate, appearing for the respondent No.1 submitted that admittedly the suit land was acquired in L.A. Case No.55 of 7958-59 and L.A. Case No.10 of 1963-64 as part of Gulshan Lake and the respondent No.1 was empowered in law to cancel the plan of the plaintiff appellant under Section 9 of the Building Construction Act, 1952 inasmuch as that is the only provision that has been provided in the Act enabling the cancellation only on the ground provided therein, inter alia, for any civil or non-compliance of the provision of the Act. The learned Advocate further submitted that Section 3 of the Building Construction Act, 1952 empowered RAJUK to allow plan to construct or reconstruct or to make addition or alteration to any building or excavate or re-excavate providing mandatory provision for such purpose sanctioned of the authorized officer inasmuch as the said authority had also power to cancel or otherwise. The learned Advocate further submitted that the Section 14 of the Building Construction Act, 1952 read with Sections 3, 3A, 3B, 4, 5, 6 and 9 thereof bars civil suit against any order passed by the authority under the Act inasmuch as the selfsame contained for the purpose has provided the forum of appeal which the appellant has not availed. The learned Advocate lastly submitted that in a series of decisions by the High Court Division particularly in C.P.L.A. No. 588 of 2000 this Court has directed RAJUK to preserved the lake thereto maintained road and walk way with a reasonable slop around the lake for the use of the public and should also acquire in the public interest land if required for the purpose for maintenance and preserve the lake with road and walk way etc and not to approve any plan whatsoever covered by lake.

11. Admittedly the suit land was acquired in L.A. Case No. 55 of 1958-59 and 10 of 1963-64 forming a part of Gulshan Lake and the said lake has also been shown in the said plan of the Gulshan area which is required to be preserved and protected in the public interest. Furthermore, any deviation of the said acquired land by way of any construction on plan allegedly sanctioned by the authority is liable to be cancelled under the provision of Section 9 of the Building Construction Act, 1952 inasmuch as even if the grounds may not be covered by the said provision the said provision is only enabling providing for cancellation of any sanction plan on any cogent ground apart from them mentioned in the sanction.

12. The Act has provided an ouster of jurisdiction of the Civil Court under the provision of Section 14 of the Building Construction Act, which is bar to maintain any suit against the order passed by RAJUK under the Act providing provision for an appeal therein. In the instant case the appellant has not availed the said provision of appeal instead filed the suit which is not maintainable as the special provision provides a special remedy for the purpose and the person being the satisfied with any order of RAJUK could prefer appeal in the special forum for the purpose.

13. In spite of the fact that the disputed land is apart of Gulshan lake but the writ petitioner applied for approval of a plan in order to make building but RAJUK though inadvertence approved the plan and subsequently realizing the same, RAJUK cancelled the plan. RAJUK, accordingly dispossessed the writ petitioner from the suit land upon issuance of the impugned notice cancelling the approval of the plan; that later on the plaintiff filed a petition to the appellant for restoration of the plan. The appellant filed the suit in the Civil Court in spite of the provision of appeal under the Building Construction Act, 1952 which the appellant did not avail. In his cross examination the appellant has admitted that he did not prefer any appeal. Further in sub-section 2 of Section 17 of the Act it has been clearly enacted that no such, prosecution or legal proceeding shall lie against any person in respect of anything which in good faith done or intended to be done under this Act. By this enactment, the legislature has ousted the jurisdiction of the Civil Court from interfering or calling in question of any order passed by the appellant under the aforesaid Act. Thus, the Civil Court's Jurisdiction has been specifically ousted by the concerned Act governing the subject.

14. The Building Construction Act, 1952 provides in Section 3 authorizing RAJUK to allow plan for construction or re-construction, addition or alteration to any building or excavate or re-excavate provides sanction for the purpose by the authorized officer and under the provision of General Clauses Act as well a person who is empowered to grant would in its inherent power revoke or withdraw the same.

15. This Court considering the public interest and the convenience and inconvenience of the people in the vicinity has long before pronounced in unequivocal terms in Civil Petition for Leave to Appeal No. 386 of 2000 is the case of Prof. Dr. Niaz Zaman Vs. Rajdhani Unnayan Kartipakkhya and others directing RAJUK to preserve the lake maintaining road and walkway with reasonable slop around the lake for the purpose and directed RAJUK as well, to acquire any land in the vicinity in the public interest for maintaining and preserving the lake, road and walk way with reasonable slop to the water and further directed not to approve any building plan in the area covered by lake.

16. In the said decisions this Court further held that "In order to prevent private encroachment in the lake area a direction is required to be made upon RAJUK not to approve any building plan in the area covered by lake including the area proposed to be acquired for preserving the lake. That a layout plan has already been prepared by RAJUK for the existing Gulshan, Baridhara lake and the plots and lands adjacent to the lake. In the said layout plan all the existing and proposed roads and walkway alignments have been delineated and depicted using different colours. The cross section of the lake has been shown also in the said layout. It has been proposed that the slanted space (greenery) in between the lake and the walkway will be used for preserving the navigability and depth of the lake and the proposed road and walkway will be constructed on the boundary wall of the duly allotted plots. That the area marked under red hatching in the layout plan of Gulshan Baridhara lake and its side land is not in existence as part of the lake and is intended to be acquired and preserved as part of the lake, The signed statements dated 14tn January, 2003 and 25th January, 2003 and the layout plan No.TP/RLT/234/APRIL-3 (53) dated 4^th April, 1994 have been made Annexure-A, B and C respectively and prayed for forming part of the additional paper book filed in this Court.
Annexure- A as referred to above is quoted below as under;
“বিষয়ঃ গুলশান ও বারিধারা লেক ও পার্শ্বব্ররতী ভুমির লে- আউট প্ল্যন প্রসঙ্গে ।
গুলশান ও বারিধারার বিদ্যমান লেক পার্শ্ববর্তী প্লট ও জমি সহ একটি লে-আউত প্ল্যান প্রনয়ন করা হইয়াছে ।
০১। লে-আউট এ বিদ্যমান ও প্রস্তাবিত সড়ক এবং walkway এলাইমেন্ট ভিন্ন ভিন্ন রঙ দ্বারা চিহ্নিত করা হইয়াছে ।
০২। লে-আউট প্ল্যানে লেকের cross section দেখান হইয়াছে ।
০৩। Walk Way and Open Space (Greenery) এর পর থেকে লেকের পার্শ্ববর্তী ভুমির Slops ১:২ অনুপাতে লেকের নাব্যতা সংরক্ষন করার ব্যবস্থা গ্রহন করা হইবে। প্রস্তাবিত সড়ক ও walkway বরাদ্দকৃত প্লট বাউন্ডারী পার্শ্ব দিয়া নিরমানের প্রস্তাব করা হইয়াছে ।
Annexure- B as referred to above is quoted below as under;
বিষয়ঃ গুলশান ও বারিধারা লেক ও পার্শ্বব্ররতী ভুমির লে- আউট প্ল্যন প্রসঙ্গে ।
নকশায় চিহ্নিত Red hatching বরতমানে লেকের অংশ হিসাবে সরেজমিনে আছে ।

17. Annexure-C as referred to above is the layout plan of lake and side-land in between Gulshan and Baridhara being drawing No.TP/RLT/234 /APRIL-3(53) dated 4th April, 1994."
"But since this petition is also by way of public interest litigation and accordingly, this Division gave directions to RAJUK to clarify the status of the land proposed to be acquired and for preparing a layout plan depicting the proposed road around the Gulshan and Baridhara lake and walkway with slops which must be constructed and maintained by the side of the boundary wall of the adjacent allottees. RAJUK has stated the land within the red hatching in the layout plan of Gulshan Baridhara lake filed by RAJUK in its additional paper book together with the layout plan etc. showing its side land now in existence as part of the lake is intended to be acquired expeditiously and preserved as part of the lake. Preservation of the lake and to maintain a road and walkway with reasonable slop around the lake is a public purpose and accordingly, this Division directs that with that end in view the land inside the periphery of the lake should be acquired in the public interest as early as possible and the same should be maintained in a similar manner for preserving the lake with a road and walkway with reasonable slop towards water. This Division, accordingly, further gives the direction to the RAJUK for implementation of its aforesaid directions as soon as possible."

18. In view of the above, we find no merit in the submissions of the learned Counsel for the appellant.
Accordingly, the appeal is dismissed without any order as to costs.
Ed.

Shahabuddin Vs. Abu Sayed and others

Case No: Civil Petition for leave to appeal No. 121 of 1990.

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Md. Zakir Hossain,Sultan Ahmad,,

Citation: 45 DLR (AD) (1993) 22

Case Year: 1993

Appellant: Shahabuddin

Respondent: Abu Sayed and others

Subject: Property Law,

Delivery Date: 1991-10-31

Shahabuddin Vs. Abu Sayed and others
45 DLR (AD) (1993) 22

Supreme Court
Appellate Division
(Civil)

Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J

Shahabuddin ................................Petitioner
Vs.
Abu Sayed and others ......................Respondents

Judgment
October 31st, 1991.

Code of Civil Procedure (V of 1908)
Section 151
Order having been passed in the absence of the plaintiff and the trial Court having not rejected the plaintiff’s plea that the case records remained untraced for some time, restoration of the suit in exercise of inherent power was not justified.

Lawyers Involved:
Sultan Ahmad, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioner.
Zakir Hossain, Advocate, instructed by Md. Nowab Ali, Advocate-on-Record-For the Respondent No. 1.
Not Represented ‑Respondent No. 2.

Civil Petition for leave to appeal No. 121 of 1990.
(From the judgment and order dated 27.2.90 passed by the High Court Division, Dhaka in Civil Revision No. 575 of 1987).

Judgment

Mustafa Kamal J.- The plaintiff-respondent filed Title Suit No. 546 of 1974 in the 1st Court of Subordinate Judge, Dhaka (now renumbered as Title Suit No. 77 of 1990 of the 4th Court of Subordinate Judge, Dhaka), for declaration of title and recovery of possession of the suit land. Application for amendment of the plaint having been rejected the plaintiff obtained a Rule from the High Court Division in civil revision. The Rule was made absolute on 14.8.84 allowing the plaintiff's prayer. The records of the case reached the trial Court on 25.1.86, but the plaintiff failed to file any hajira nor took any steps. On 16.3.86 the plaintiff was directed to file deficit court fee by 4.4.86. The plaintiff having failed to do so the plaint was rejected by order dated 5.4.86.

2. On 18.4.87 the plaintiff filed an application under section 151 CPC for vacating the order dated 5.4.86 and for restoring the suit to file on the ground that owing to the LC records being misplaced and owing to the plaintiff's own indisposition, he could not take steps after 25.1.86 and the order of rejection of the plaint was passed without his knowledge. By order dated 11.5.87, the trial Court, although unable to take any firm decision as to the plaintiff s pleas, vacated the order dated 5.4.86 and restored the suit to its file on payment of Tk. 1000.00 as costs to defendant No, 1.

3. Defendant No. 1 unsuccessfully took a revision before the High Court Division, which took the view that the prayer of the plaintiff was allowed on proper appreciation of the matter on record.

4. Defendant No. 1 now seeks leave to appeal from the Judgment of the High Court Division.

5. Mr. Sultan Ahmad, learned Advocate for the petitioner, submits that the learned Subordinate Judge as well as the High Court Division erred in law in not considering that rejection of the plaint being a decree, an appeal was available to the plaintiff and that the application under section 151 CPC did not lie.

6. The suit was filed on 13.11.74 and it had a chequered career. When the case records reached the trial Court on 25.1.86, the plaintiff was not available and it appears that all subsequent orders were passed by the court in the absence of the plaintiff including the order of rejection of the plaint dated 5.4.86. The trial Court did not reject the plaintiff’s plea that the case records remained untraced for some time. In these circumstances the restoration of the suit in exercise of the Court's inherent power under section 151 CPC was not unjustified.

7. Mr. Zakir Hossain, learned Advocate entering caveat on behalf of the plaintiff respondents, has filed a certified copy of the entire order sheet of the trial Court. We find therein that the suit has again been dismissed for default of the plaintiff and the defendants by order dated 17.3.91.

8. This Judgment will have no bearing on the trial Courts latest order dated 17.3.91.

As, however, we find no ground for interference with the judgment of the High Court Division, the petition is dismissed.
Ed.

Shahana Chowdhury and another Vs. Kamrun Nahar Begum [4 LNJ AD (2015) 167]

Case No: CIVIL APPEAL No. 113 of 2010

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,,

Citation: 4 LNJ AD (2015) 167

Case Year: 2015

Appellant: Shahana Chowdhury and another

Respondent: Kamrun Nahar Begum

Subject: Pre-emption,

Delivery Date: 2014-06-11

APPELLATE DIVISION
(CIVIL)

Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J.

Judgment on
11.06.2014

Shahana Chowdhury and another ....Appellants
Versus
Kamrun Nahar Begum
....Respondent

Partition Act (IV of 1893)
Section 4
It might be that the petitioner-respondent Kamrun Nahar Begum used to reside in the house of Kala Miah with his family but where, admittedly, all the heirs of Kala Miah sold out their entire share in the suit property in question, that is the entire property to the petitioner-respondent and the appellants opposite parties, there remains no question of any undivided family now. . . . (10)

Partition Act (IV of 1893)
Section 4
The transferee appellants did not file any suit for partition, rather they, as earlier purchasers, filed pre-emption cases to preempt the land purchased the petitioner-opposite party. So the other element for attracting the operation of section 4 of the Partition Act-that is the transferee should sue for partition-also is absent in this case. . . .(11)

Partition Act (IV of 1893)
Section 4
Both the petitioner-respondent and the appellants were stranger purchasers and admittedly the appellants purchased their share before the purchase of the petitioner-respondent. In the circumstances the prayer of the petitioner-respondent for buying up the share of the appellant opposite parties is not entertainable at all. . . . (12)

Partition Act (IV of 1893)
Section 4
In a case under section 4 of Partition Act the possession of the parties is not at all a necessary factor to be considered. So, the allowance of the prayer for buy off on the ground that the petitioner is in possession of the property in question and the purchaser opposite parties are not in possession-has been most erroneous and illegal. . . . (13)

For the Appellants: Mr. Mahmudul Islam, Senior Advocate, (Mr. Fazlenur Tapash, Advocate with him) instructed by Mr. Taufique Hossain, Advocate-on-Record.
For Respondent: Mr. Mahbubey Alam, Senior Advocate, (Mr. M. A. Quayum, Senior Advocate with him) instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record.

CIVIL APPEAL No. 113 of 2010

JUDGMENT

Nazmun Ara Sultana, J.

This Civil Appeal, by leave, has arisen out of the judgment and order dated 11.03.2009 passed by the High Court Division in Civil Revision No.4245 of 2008 making the rule absolute, setting aside the judgment and order dated 13.08.2008 passed by the learned Joint District Judge, Dhaka in Civil Revision No.199 of 2008 summarily rejecting the revision thereby affirming the judgment and order dated 07.05.2008 passed by the learned Joint District Judge, 6th Court, Dhaka in Miscellaneous Case No.26 of 2006 under section 4 of the Partition Act dismissing the case.

The facts necessary for disposal of this Civil appeal, in short, are that one Kala Miah was the owner of the property in question. Kala Miah died leaving two wives, 8 sons and 10 daughters. From these heirs of Kala Miah the present respondent Kamrun Naher Begum purchased 2 anas 3 godans and 13 till share and the present appellants purchased the rest 13 anans 16 gondas,3 koras, 2 kranties, 7 till share. Kamrun Nahar Begum-the respondent herein-filed Partition Suit No.86 of 1993 for declaration of title and for partition of her share in the suit property and got a decree on 04.06.2003. In that decree the present appellants also were allotted separate shaham for the rest 13 anas 16 gondas, 3 karas, 2 kranties, 7 till share. The said judgment and decree was upheld upto the High Court Division. Thereafter, the plaintiff of that Title Suit No.86 of 1993 (the respondent herein) filed Miscellaneous Case No.26 of 2006 for buying up the share of the opposite parties (the present appellants) under section 4 of the Partition Act contending, inter-alia, that the property in question was her homestead property and she had been possessing the same with her family members since 1978; that the opposite parties are stranger purchasers and they had no possession in this property. That the petitioner had been possessing the entire property on paying rent, municipal taxes, electricity, WASA and gas bills. The opposite parties are strangers and as such the petitioner was entitled to by up the share of the opposite parties and she was ready to pay the compensation money.

The opposite party Nos.1 to 3 contested the case by filing written statement contending, inter-alia, that they acquired the major share of about 14 annas in the property in question by three documents dated 30.04.1981 which was earlier then the purchase of the petitioner. That these opposite parties earlier filed Miscell-aneous Case Nos.189 and 190 of 1984 for pre-emption of the land of the petitioner and it went upto Appellate Division and the Appellate Division found that the property fell within Dhanmondi Residential Area and for this reason the pre-emption would not lie.

The trial court, on consideration of evidence adduced by both the parties and the facts and circumstances dismissed that miscellaneous case under section 4 of the Partition Act finding that the petitioner was not a member of undivided family and heir of Kala Miah and that she was a stranger purchaser and her purchase was subsequent to the purchase of the contesting opposite parties who were major share holders. The revisional court below affirmed this judgment of the trial court. The High Court Division set aside the concurrent findings and decision of the courts below and allowed the miscellaneous case by its impugned judgment and order.

Mr. Mahmudul Islam, the learned senior Counsel appearing for the appellants has made submissions to the effect that admittedly the petitioner-respondent was not heirs of Kala Miah nor was a member of the family of Kala Miah, but she, admittedly became co-share by virtue of purchase from the heirs of Kala Miah. The learned Counsel has argued that both the courts of facts, on proper appreciation of these facts and circumstances rightly dismissed the case under section 4 of the Partition Act, but the High Court Division without adverting to or reversing the concurrent findings and decision of the courts below most unjustly allowed the case under section 4 of the Partition Act ignoring the fact that none of the elements for attracting operation of section 4 of the Partition Act was present in this case. The learned Counsel has argued that in this case it is an admitted fact that all the members of Kala Miah-the original owner have transferred their entire interest in favour of the petitioner and the respondents and now there is no question of undivided family and that the petitioner, admittedly, being brother’s daughter of one of the wives of Kala Miah-is not a member of Kala Miah’s family and that there is no evidence at all to prove that the petitioner was a member of Kala Miah’s family. The learned Counsel has contended that the High Court Division most unreasonably and unjustly allowed this miscellaneous case under section 4 of the Partition Act by the impugned judgment and order and as such the impugned judgment and order is liable to be set aside.

Mr. Mahbubey Alam and Mr. M. A. Quayum, the learned Senior Advocates for the respondent has made submissions supporting the impugned judgment and order of the High Court Division. They have made submissions to the effect that the petitioner being brother’s daughter of one of the wives of Kala Miah used to reside in the property in question with the family of Kala Miah and as such her claim under section 4 of the Partition Act cannot be brushed aside.

We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division, those of the revisional court below and the trail court and also the evidence on record.

Section 4 of the Partition Act provides:

”Where a share of a dwelling house belonging to an undivided family has been transferred to a persons who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share-holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such share-holder, and may give all necessary and proper directions in that behalf.”

From the above quoted section 4 it is evident, that the elements which must co-exists in order to attract the operation of section 4 of the Partition Act are:

that the dwelling house should belong to an undivided family,
that the share thereof should have been transferred to a person who is not a member of such family,
that the transferee should sue for partition.

Here, in the present case, the main element for attracting section 4 of the Partition Act is absent. There is no existence of any undivided family now, Admittedly, Kala Miah was the original owner and possessor of the property in question and he died leaving 2 wives, 8 sons and 10 daughters. Admittedly, all of these heirs of Kala Miah have transferred their entire share in the property in question. It is also an admitted fact that the present appellants purchased about 14 annas share of the property in question from the heirs of Kala Miah before the purchase of 2 annas, 3 gondas and 13 till share by the petitioner respondent Kamrun Nahar Begum. So, admittedly the appellants and opposite party are now owners of the entire property in question and none of these appellants and the opposite party is heir of Kala Miah. So, the question of undivided family now does not arise at all.

From the side of the petitioner-respondent though some arguments has been advanced to the effect that the petitioner being the brother’s daughter of one of the wives of Kala Miah used to reside in the property in question with the family of Kala Miah and as such she should be treated as the member of family of Kala Miah, but this argument also is not acceptable at all. It might be that the petitioner-respondent Kamrun Nahar Begum used to reside in the house of Kala Miah with his family but where, admittedly, all the heirs of Kala Miah sold out their entire share in the suit property in question, that is the entire property to the petitioner-respondent and the appellants opposite parties, there remains no question of any undivided family now.

In this case, admittedly, the transferee appellants did not file any suit for partition, rather they, as earlier purchasers, filed pre-emption cases to preempt the land purchased the petitioner-opposite party. So the other element for attracting the operation of section 4 of the Partition Act-that is the transferee should sue for partition-also is absent in this case.
Both the petitioner-respondent and the appellants were stranger purchasers and admittedly the appellants purchased their share before the purchase of the petitioner-respondent. In the circumstances the prayer of the petitioner-respondent for buying up the share of the appellant opposite parties is not entertainable at all.

It appears that the trail court, on proper appreciation of all the facts and law rightly rejected the case under section 4 of the Partition Act. The revisional court below also, on proper appreciation of the facts and law rightly affirmed this judgment and order of the trial. But it appears that the High Court Division set aside these concurrent findings and decision of the courts below and allowed the case under section 4 of the Partition Act, on making findings to the effect that “the opposite parties are strangers of the suit premises and the petitioner is residing in the suit land.” Evidently, the High Court Division committed serious wrong and illegality in allowing the case under section 4 of the Partition Act on the above findings. In a case under section 4 of Partition Act the possession of the parties is not at all a necessary factor to be considered. So, the allowance of the prayer for buy off on the ground that the petitioner is in possession of the property in question and the purchaser opposite parties are not in possession-has been most erroneous and illegal. It appears that the learned Judge of the High Court Division, in its impugned judgment, though has quoted section 4 of the Partition Act, but could not appreciate the true purport of this very section.

However, from the above discussion, it is evident, that the impugned judgment and order of the High Court Division cannot be sustained in law.

In the circumstances this appeal is allowed on contest without any order as to cost. The impugned judgment and order of the High Court Division is set aside and those of the courts below are hereby affirmed.

Ed.

Shahe Alam (Md) Vs. Md. Golam Sarwar and others, 52 DLR (AD) (2000) 164

Case No: Civil Petition for Leave to Appeal No. 1205 of 1999

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Fazlul Karim,,

Citation: 52 DLR (AD) (2000) 164

Case Year: 2000

Appellant: Shahe Alam (Md)

Respondent: Md. Golam Sarwar

Subject: Election Matter,

Delivery Date: 2000-1-19

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
BB Roy Choudhury J
M Amin Choudhury J

Shahe Alam (Md)
……………………Petitioner
Vs.
Md. Golam Sarwar and others
…………………….Respondent

Judgment
January 19, 2000.

The Code of Civil Procedure, 1908
Order XLI, Rule 14(3)
Even though The High Court Division acted under section 151 of Code of Civil Procedure, Order XLI rule 14(3) has given ample power to the High Court Division to dispense with service of notice upon the non contesting respondents.

Lawyers Involved:
Fazlul Karim, Senior Advocate instructed by Nawab Ali, Advocate-on-Record—For the Petitioner.
Aftab Hossain, Advocate-on-Record—For the Respondent No. 1.
Not represented—The Respondent No. 2-5.

Civil Petition for Leave to Appeal No. 1205 of 1999

JUDGMENT

Mahmudul Amin Choudhury J.-

1. This petition for leave to appeal is against judgment and order dated 18-8-1999 passed by a Single Bench of the High Court Division in Civil Revision No. 2561 of 1999. By this order the High Court Division dispensed with the service of notices upon opposite party Nos. 2 to 5.

2. The short fact leading to this petition is that on 11-12-1997 election for the constitution of No. 3 Atmol Union Parishad under Shibganj police station of Bogra was held and in that election respondents were contesting candidates and on 8-1-1998 the petitioner was declared elected as Chairman of the said Union Parishad who took, oath of office on 3-2-1998. Thereafter on 5-2-1998 respondent No 1 instituted Election Petition No. 3, of 1998 before the Tribunal praying for a declaration that the election held was void on certain grounds and that the petitioner was disqualified to contest the post of the Chairman as he was below 25 years and also on other ground Respondent No. 4 also filed a separate election petition which is Election Case No. 4 of 199 almost on similar grounds. The Election Tribunal, by order dated 11-4-1999 declared the election, of the petitioner void against which the petitioner moved the Appellate Tribunal who also upheld the decision of the Tribunal. The petitioner then moved the High Court Division in the present revisional application No. 2561 of 1999 and the. High Court Division issued Rule. Thereafter on 16-8-1999 an application was filed on behalf of respondent No. 1 praying for dispensation of this service of notices upon opposite party Nos. 2 to which was allowed by order dated 18-8-1999 by, the High Court Division. The petitioner then fuel this application for leave to appeal.

3. Mr. Md Fazlul Karim, learned Counsel appearing on behalf of the petitioner, submits that dispensation of service of notices upon respondent Nos. 2 to 5 is contrary to the provision of section 29 of the Local Government (Union Parishad) Ordinance, 1983. It is submitted that it exercising the authority under section 151 of the Code of Civil Procedure in dispensation of’ service of notice, the High Court Division 8 committed illegality. The learned Advocate contends that Order 41 rule 14 of the Code of Civil Procedure has not provided for any power upon the High Court Division to dispense with the service of notice upon respondent Nos. 2-5 and Election Rules also provided that such notices must be given to the contesting candidate of the election to which the petition relates.

4. We have gone through the provision of section 29(1) of the Election Ordinance and it provides that the Election Tribunal shall upon receipt of an election petition give notice to all contesting candidates of the election to which the petition relates. It is not the case of the petitioner that no such notice was issued by the Election Tribunal or by the Appellate Tribunal. Admittedly the service of notices has been ordered to be dispensed with by the High Court Division in revision. This section of the Election Ordinance it appears relates to the election petition. This has nothing to do with revisional application. Opposite party Nos. 2-5 have been impleaded in the election petition as well as in the appeal and they were also impleaded in the revisional application and from the perusal of the record it appears that they never entered appearance before the Election Tribunal or before the Appellate Tribunal and the High Court Division found that they are non contesting opposite parties.

5. It has been argued that under Order 41 rule 14 of the Code of Civil Procedure no discretionary power has been given to the court for dispensing with the service of notice on any respondent who did not appear and the High Court Division also found the submission to be correct but in passing the order of dispensation of service of notices the High Court Division acted under section 151 of the Code of Civil Procedure but as far back as in 1928 Calcutta Amendment has been made in Order 41 rule 14 of the Code of Civil Procedure and a new sub-rule (3) has been incorporated. Though as a matter of fact this new sub-rule has not been printed in the Government publications of the Code of Civil Procedure but as amendment was made in the year 1928 in Calcutta the provision is applicable in our country, as we have adopted that Code. This sub-rule (3) that provided that appellate Court in its discretion may make an order, at any stage of the appeal whether on its own motion or ex parte, dispensing with the service of notice on any respondent who did not appear.

6. Admittedly respondent Nos. 2-5 have not entered appearance before the Tribunal or the Appellate Tribunal. They are non-contesting respondents and in such a situation Order 41 rule 14(3) of the Code of Civil Procedure has given ample power to the High Court Division to dispense with the service of notice upon the non- contesting respondents which has been done by the High Court Division. The High Court Division though acted under section 151 of the Code of Civil Procedure they could have acted under Order 41 rule 14(3) of the Code of Civil Procedure. This amendment it appears has escaped the notice of the learned Advocate who appeared on behalf of the respondent before the High Court Division and also of the said Division. In view of the clear provision of the Rule and in view of the fact that section 29(1) of the Local Government (Union Parishad) Ordinance 1983 relates to issuance of notice in the election petition which has been done in present case we hold that no illegality and wrong has been committed by the High Court Division and this has not caused any prejudice to the petitioner. We therefore find no substance in this petition.

The petition is therefore dismissed.

Ed.

Shahid Hamid Vs. Nilufar Momtaz, 14 MLR (AD) (2009) 33

Case No: Civil Petition for Leave to Appeal No.1357 of 2008

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Mr. Chowdhury Md. Zahangir,,

Citation: 14 MLR (AD) (2009) 33

Case Year: 2009

Appellant: Shahid Hamid

Respondent: Nilufar Momtaz

Subject: Family Law,

Delivery Date: 2008-10-14

Supreme Court
Appellate Division
(Civil)

Present:
M.M. Ruhul Amin CJ
Md.Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J

Shahid Hamid
........................Petitioner
Vs.
Nilufar Momtaz
.......................Respondent

Judgment
October 14, 2008.

Family Court Ordinance, 1985
Section 5
When the marriage is admittedly dissolved by talak at the instance of the husband, the wife is legally entitled to realize the dower money as stipulated in the kabinnama and also maintenance during the period of her iddat. The husband having failed to prove the payment of dower by any cogent evidence the Family Court decreed the suit which has been upheld consistently upto the apex court by concurrent findings.

Lawyers Involved:
Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner.
Chowdhury Md. Zahangir, Advocate-on-Record- For the Respondent.

Civil Petition for Leave to Appeal No.1357 of 2008.
(From the Judgment and Order dated 1st June, 2008 passed by the High Court Division in Civil Order No.2080 of 2008.)

JUDGMENT

M.M. Ruhul Amin CJ.

1. This petition for leave to appeal is directed against the judgment and order dated 1st June, 2008 passed by the High Court Division in Civil Order No. 2080 of 2008 summarily rejecting the application.

2. Short facts are that the opposite party of this application as plaintiff instituted Family Suit No. 185 of 2006 in the Court of 2nd Assistant Judge and Family Court, Dhaka for realization of dower and maintenance contending inter alia, that marriage was solemnized between her and the petitioner on 19.2.1999 and they started living together. Dower was fixed at Tk. 5,00,001/- and that the marriage was registered by a kabinnama dated 19.9.1999. It was her case that the 19.9.1999. It was her case that the petitioner ousted her from his mess and she lodged a G.D. Entry with Kafrul Police Station to that effect and it was her further case that since 2005 she had not been given any maintenance and that while she was living alone she received a registered talaknama on 19.3.2006. Following talaque a proceeding was started before the City Corporation, Dhaka and the marriage tie ended on 22.5.2006. Thereafter she instituted a suit for realization of dower and maintenance for Tk. 5,00,000/-.

3. The defendant contested the suit contending inter alia, that the dower has already been paid and that thereafter he has sent a divorce letter and that the divorce vas ultimately effected upon starting a proceeding by the concerned City Corporation.

4. We have heard Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioner and Chowdhury Md. Zahangir, the learned Advocate-on-Record for the respondent and perused the judgment of the High Court Division and other connected papers on record.

5. The vital question for consideration in the case was whether payment of dower was made by the defendant husband to the plaintiff wife.

6. The High Court Division on consideration of the materials on record held as under:

"Save and except that submission made by the learned Advocate there is no other evidence to show that the payment of dower was made by the defendant. The Family Court below discussed the evidences of both the parties side by side and has come to the finding that no dower was paid by the defendant in favour of the plaintiff and decreed the suit. The payment of dower is a question of fact and the Courts below decided the issue in favour of the plaintiff that no dower money was paid by the defendant. That finding is concurrent and based on evidence".

7. The High Court Division further held that since the Courts below by concurrent findings on the question of fact concluded that the husband could not prove that he made payment of dower to the wife and the finding is based on evidence.

8. In the above facts and circumstances of the case, we are of the view that the learned Counsel for the petitioner could not point out any error of law or infirmity in the decision of the High Court Division.

Accordingly, the petition is dismissed.

Ed.

Shahid Ullah @ Shahid and others Vs. The State, 3 LNJ AD (2014) 15

Case No: Jail Appeal No. 08 of 2011

Judge: Nazmun Ara Sultana,

Court: Appellate Division ,,

Advocate: ABM Bayezid,Md. Salim,,

Citation: 3 LNJ AD (2014) 15

Case Year: 2014

Appellant: Shahid Ullah @ Shahid and others

Respondent: The State

Subject: Confessional Statement, Commutation of Sentence,

Delivery Date: 2013-04-07

APPELLATE DIVISION
(CRIMINAL)

Nazmun Ara Sultana, J
Muhammad Imman Ali, J
Mohammad Anwarul Haque, J
Hasan Foez Siddique, J

Judgment on
7^th April, 2013

Shahid Ullah @ Shahid and others
... Petitioners.
Vs.
The State
... Respondent

Code of Criminal Procedure (V of 1898)
Section 164
Evidence Act (I of 1872)
Sections 24 and 27
The evidence of the prosecution witnesses have proved sufficiently that immediately after the murder of the deceased both these condemned prisoners were caught by the local people with their blood stained wearing clothes and at that time, on their asking, both these condemned prisoners confessed that they with an intention to hijack a C.N.G. baby taxi murdered the driver of that baby taxi and thereafter as per showing of these condemned prisoners the dead body of the deceased driver was recovered. The evidence of the prosecution witness have been corroborated fully by the confessional statements of the condemned prisoners which are found voluntary and true. . . .(13)

Code of Criminal Procedure (V of 1898)
Section 376
As these two condemned prisoners along with another committed the murder of baby taxi driver in a cool brain and preplanned way which is brutal and heinous too. It does not deserve any leniency or mercy as such offenders are enemy for the whole society. There is no scope of reducing the sentence of death to imprisonment for life, rather, it is a fit case for imposing capital sentence.
The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that preplan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. There is no reason for showing any leniency or mercy to this type of offenders who are enemy for the whole society. So we are unable to accept the submission of the learned advocate for the condemned prisoners to reduce the sentence of death to life imprisonment. In our opinion this is a fit case for imposing death sentence on killers. The trial court rightly imposed the death penalty on these two condemned prisoners and the High Court Division also rightly affirmed the sentences of death of these two condemned prisoners. . . .(15)

For the Petitioners: ABM Bayezid, Advocate.
For the Respondent: Md. Salim, Deputy Attorney General.

Jail Appeal No. 08 of 2011

JUDGMENT

Nazmun Ara Sultana J.

Condemned Prisoner Md. Shahid Ullah @ Shahid and Md. Saiful Islam @ Shahid have filed this Jail Petition against the judgment and order dated 31.01.2011 passed by the High Court Division in Death Reference No. 170 of 2005 with Jail Appeal Nos. 1430 of 2005, 1431 of 2005 and 1432 of 2005.

These two condemned prisoner-petitioners along with another accused named Mir Hossain were put on trial in Sessions Case No. 597 of 2004, corresponding to G.R. Case No. 81 and 2004 and Fatikchhari police Station Case No. 8(9) of 2004 under Sections 302/34 of the Penal code before the learned Sessions Judge, Chittagong.

The Prosecution case, in short, was that deceased Reazul Karim @ Azim, the brother of the informant was a baby taxi driver. He used to play CNG vehicle bearing No. Chhatta-Metro-Tha-11-4571. On 19.05.2004 he went out with that vehicle from his house but did not come back. On 20.05.2004 the informant got information from Miraswarai Police Station that the dead body of his brother was recovered from the Datmara Takia Jalanti Rubber Plantation Garden by Police. Receiving that news, the informant along with some other people went to that place and identified the dead body of his brother. He saw there 2 accused persons also in apprehended condition. At that time those 2 apprehended accused persons confessed before him and others that they along with accused Mir Hossain hired the CNG baby taxi of the deceased with the intention to hijack the same and took the same along with the deceased-driver to the place of occurrence and there they brutally killed him and after killing while the accused persons were changing their blood stained wearing clothes, the people of nearby market appreh-ended the present two condemned petitioners and interrogated them and the accused persons confessed that they murdered the brother of the informant. The other accused Mr. Hossain Managed to flee away. Being informed by the local people the police came to that place and as per showing of the apprehended accused persons they recovered the dead body of the deceased. The informant, thereafter, lodged the First Information Report on the basis of which the case was started. The police took up investigation of the case and after completion of investigation submitted charge sheet against all the three accused persons under sections 392/302/34 of the Penal code. The trial court framed charge against all the three accused persons under sections 302/34 of the Penal code. The charge so framed was read over and explained to the accused persons who pleaded not guilty and claimed to be tried. The prosec-ution examined 11 witnesses and tendered two witnesses. The defence adduced no witness. The accused persons were examined under section 342 of the Code of Criminal Procedure and that time also they pleaded innocence only and informed the court that they would not adduce any witness. The trial court, on consideration of the evidence adduced by the prosecution and the confessional statements of all the three accused persons recorded by a Magistrate, 1st class, found all the three accused persons guilty of the charges levelled against them and convicted them thereunder and sentenced these two present condemned prisoners to death and the other accused Mir Hossain to imprisonment for life along with fine.

On a reference made by the trial court for confirmation of the death sentences of these two condemned prisoners Death Reference No. 170 of 2005 was registered. All the three accused persons also preferred three separate jail appeals as already mentioned above. A division bench of the High Court Division heard the Death Reference and all the three jail appeals analogously and by the impugned judgment accepted the death reference and dismissed all the three jail appeals affirming the judgment and order of conviction and sentence passed by the trial court.

The condemned prisoner Md. Saiful Islam @ Shahid in his jail petition has stated that they were entangled in this case falsely on mere suspicion by some terrorist of their locality who beat them mercilessly causing bleeding injuries on their persons and thereafter handed them over to the police and the police also tortured them inhumanly and thus obtained the so-called confessional statements from them against their will. That the confessional statements are not voluntary and true. The other condemned prisoner Shahid Ullah @ Shahid also in his petition, has stated a same story and has stated further that he is physically handicapped his right leg is crippled and he is not able to move normally.

Mr. ABM Bayzid, the learned advocate for the condemned prisoner petitioners has made argument focusing mainly on these two petitions of the condemned prisoners. The learned advocate has argued to the effect only that both these two condemned prisoners, in fact, were not at all involved in the alleged murder of the deceased and that they were caught by local people on suspicion only and were beaten mercilessly causing bleeding injuries on their persons and that the police also tortured them inhumanly and compelled them to make the so-called confessional statements as per the dictation of the police and that these confessional statement are not at all voluntary and true. The learned advocate has submitted also that the condemned prisoner Shahid Ullah @ Shaid is physically handicapped whose right leg is crippled and he is unable to move norm-ally and has argued that it is not believable at all that such physically handicapped man could murder any person in the manner as stated by the prosecution. The learned advocate for the condemned prisoners has argued also that the death sentences imposed on these two petitio-ners have been too harsh and that for the ends of justice this division may reduce the sentence of these condemned prisoners.

Mr. Md. Salim, the learned Deputy Attorney General, on the other hand, has made submissions to the effect that this is a very heinous crime and in this case the commission of this heinous crime by these two condemned prisoners have been proved beyond all reason-able doubt by overwhelming evidence adduced by the prosecution and that considering the very nature and gravity of this offence no lenient view can be taken and no mercy-can be shown to these condemned prisoners by reducing their sentences to imprisonment for life even.

We have considered the submissions of the learned advocates of both the sides and gone through the impugned judgment, that of the trial court and the evidence on record.

The prosecution case as it appears from the FIR, the evidence of the prosecuting witnesses and also the 164 statements of all the three accused persons is that the deceased Reazul Karim @ Azim was a baby taxi driver and he used to ply a CNG vehicle. That on 19.05.2004 he went out of his house with that CNG vehicle and the three accused persons hired his vehicle with intention of hijacking the same alter murdering the driver Reazul Karim @ Azim and accordingly, after going some distance they stopped that vehicle at Datmara Takia Jalanti Rubber Plantation Garden and these two condemned prisoners took the deceased Reazul Karim @ Azim inside that   Rubber Plantation Garden and there they brutally murdered Reazul Karim @ Azim by inflitting knife blows indiscriminately on his persons causing grievous bleeding injuries on various parts of his body including some vital parts and as a result Reazul Karim @ Azim died there. Thereafter while these accused persons were about to flee away with that baby taxi the local people saw them with their blood stained clothes and on suspicion they caught these 2 present condemned petitioners and thereafter, on their asking, these condemned petitioners confessed that they murdered the driver of the CNG baby taxi. The local people then informed the police and the police came and thereafter as per showing of these conde-mned petitioners the police along with the local people recovered the dead body of Reazul Karim from that rubber Plantation Garden.

It appear that the above prosecution case has been proved by sufficient reliable and convincing evidence including the confessional   statements of all the three accused persons. Both the trial court and the High Court Division have discussed all these evidence and the confessional statements of all the three accused persons elaborately in their respective judgment.

It appears that among the 11 prosecution witnesses the P.W.I, P.W.2, P.W.3, P.W.4, P.W.5, P.W.7, and P.W.8, have deposed before the court to the effect that both the accused condemned prisoners Md. Saiful Islam @   Shahid and Md. Shahid Ullah @ Shahid made extra judicial confessional statements before them stating that they and the other accused Mir Hossain, with an intention to hijack the baby taxi of the deceased, hired that baby taxi as passengers and went with that baby taxi near the Datmara Takia Jalanti Rubber Plantation Garden and took the deceased driver inside that Rubber Plantation Garden and there they brutally murdered him by inflicting knife blows indiscriminately causing grievous bleeding injuries on his person. From the evidence of these prosecution witnesses it has also been proved beyond all reasonable doubt that as per these extra judicial confessional statements of these two accused condemned prisoners and also as per their showing the dead body of the deceased was recovered from that Rubber Plantation Garden. Besides these evidence of the prosecution witnesses the judicial confess-ional statements of all the three accused persons under section 164 of the Code of Criminal Procedure also have corroborated this prosecution case fully. In their judicial confessional statements all the three accused persons have-corroborated the above stated prosecution case entirely. In their judicial confessional statements these 2 condemn petitioners have stated that they all made a preplan to hijack a baby taxi and according to that pre-plan, they on the night of occurrence, hired the baby taxi of the deceased as passengers and took the baby taxi to Datmara Takia Jalanti Rubber Plantation garden and there they asked the driver to stop the baby taxi and took the driver inside that Rubber Plantation Garden and murdered him there brutally by inflicting knife blows on his person indiscriminately. The other accused Mir Hossain also has made conf-essional statement supporting the prosecution case and also the confessional statements of these two condemned prisoners. It appears that both the trial court and the High Court Division, on meticulous examination of all aspects and the facts and circumstances and other evidence on record found all the 3 confessional statement of the accused persons voluntary and true.

Mr. A. 8. M. Bayezid, the learned advocate for the accused petitioners though has alleged before us that these confessional statements were not voluntary at all, these were extracted by inhuman torture, but he could not point out anything before us in support of this argument. Rather, it appears that during the whole trial of the case these condemned accused petitioners or the other accused Mir Hossain did not make any prayer even for retraction of their confessional statements making allegations that those were not voluntary and were extracted from them under tortured. During examination under section 342 of the Code of Criminal Procedure also they did not deny the voluntariness or truth of these confessional statements though these were specifically brought to their notice by the trial Judge at that time also. The learned Magistrate who recorded the confessional statements of the accused persons, also was examined by the prosecution as P.W. 12 and it appears that to this recording magistrate also, from side of these accused persons, no suggestion even was put to the effect that these confessional statements, were not voluntary and true. The learned advocate for the condemned-petitioners has drawn our attention to the jail petition submitted by the condemned prisoners and argued that in fact these accused petitioners were caught by local terrorists from their houses and they were beaten mercilessly by those terrorists and thereafter were entangled in this case falsely on suspicion. But it appears that during the whole trial, of the case and even before the High Court Division no such case was put forward from any of the accused persons. During cross examination of the prosecution-witnesses also no such suggestion even was put to any of the witnesses, nor during examination under section 342 of the Code of Criminal Procedure any single statement alleging any such plea was made by any .of the accused persons except the plea of innocence only. So in the circumstances we are unable to put any reliance on the mere statements made in the jail petition by the condemned-petitioners.

However, we find that in this case there are overwhelming evidence from the side of the prosecution to prove its case. The evidence of the prosecution witnesses have proved sufficiently that immediately after the murder of the deceased both these condemned prisoners were caught by the local people with their blood stained wearing clothes and at that time, on their asking, both these condemned prisoners confessed that they with an intention to hijack a C.N.G. baby taxi murdered the driver of that baby taxi and thereafter as per showing of these condemned prisoners the dead body of the deceased driver was recovered. The evidence of the prosecution witnesses have; been corroborated fully by the own confessi-onal statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court.

We also do not see anything to find the confessional statements of these two accused condemned prisoners not voluntary and true, We do not find anything else also to differ with the findings of the trial court and the appellate court as to guilt of these two condemned prisoners. In our opinion also the charges against these two condemned prisoners have been proved beyond all reasonable doubt.

The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that preplan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law. There is no reason for showing any leniency or mercy to this type of offenders who are enemy for the whole society. So we are unable to accept the submission of the learned advocate for the condemned prisoners to reduce the sentence of death to life imprisonment. In our opinion this is a fit case for imposing death sentence on killers. The trial court rightly imposed the death penalty on these two condemned prisoners and the High Court Division also rightly affirmed the sentences of death of these two condemned prisoners.

In the circumstances this jail petition is dismissed.

        Ed.

Shahida Khatun Vs. Alhaj Abdul Malek Howlader & ors., (Md. Abdul Wahhab Miah, J.)

Case No: CIVIL PETITION FOR LEAVE TO APPEAL No. 3096 OF 2012

Judge: Md. Abdul Wahhab Miah, J, Muhammad Imman Ali, J,

Court: Appellate Division ,

Advocate: Mr. Md. Harun-Ar-rashid, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record. ,

Citation: 2018(2) LNJ (AD)

Case Year: 2016

Appellant: Mst. Shahida Khatun

Respondent: Alhaj Abdul Malek Howlader being dead his heirs: 1(a) Parul Begum and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-01

APPELLATE DIVISION

(CIVIL)

Md. Abdul Wahhab Miah, J,

Muhammad Imman Ali, J,

Judgment on

01.02.2016

}

Mst. Shahida Khatun

. . . Appellant

-Versus-

Alhaj Abdul Malek Howlader being dead his heirs: 1(a) Parul Begum and others

. . . Respondents

Code of Civil Procedure (V of 1908)

Section 144

If the defendant succeeds to set aside the exparte decree he would to be without any remedy and he shall be surely entitled to restitution of possession of the suit land under section 144 of the Code. . . . (6)

Code of Civil Procedure (V of 1908)

Sections 144 and 151

It does not require any elaboration for the proposition that if fraud is detected Court can always act under section 151 of the Code, but when the decree passed in a suit or a case is in existence no relief can be given to the defendant by way of restitution or restoration of possession of the suit land wherein the plaintiff was put into the possession through due process of law. ...(6)

For the Petitioner: Mr. Md. Harun-Ar-rashid, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record.

For Respondents: Not represented.

JUDGMENT

Md. Abdul Wahhab Miah, J: This petition for leave to appeal has been filed against the judgment and order dated the 12^th day of June, 2012 passed by a learned Judge of the single Bench of the High Court Division in Civil Revision No.700 of 2005 discharging the Rule.

2. Facts necessary to dispose this petition are that respondent No.1 as the plaintiff filed Title Suit No.284 of 2000 in the Court of Assistant Judge, Dohar for declaration of title and for recovery of khas possession. Subsequently, the suit being transferred to the Court of Assistant Judge, First Court, Dhaka was renumbered as Title Suit No.400 of 1997.

3. In the suit the petitioner herein was defendant No.1. Eventually the suit was decreed exparte on 03.09.2002. The plaintiff levied Title Execution Case No.5 of 2002 for execution of the decree and pursuant to the decree, he was put into possession of the suit land. Thereafter, the defendant filed an application before the Execution Court under section 151 of the Code of Civil Procedure (the Code) on 01.03.2004 with the prayer to put him into possession of the suit land on the ground that the plaintiff obtained the decree by practising fraud. The Execution Court by its order dated 03.10.2004 rejected the application.

4. Against the order of the Executing Court, the defendant filed Civil Revision No.302 of 2004 before the District Judge, Dhakia under section 115(2) of the Code. The learned District Judge. Dhaka summarily rejected the same on 03.10.2004. Against the order of the learned District Judge, the defendant filed Civil Revision No.700of 2005 before the High Court Division under section 115(4) of the Code and obtained a Rule. A learned Judge of the Single Bench by the impugned judgment and order discharge the Rule; hence this petition for leave to appeal.

5. During hearing of the petition, it transpired that against the exparte decree the defendant had filed Title Appeal No.619 of 2002 before the District Judge, Dhaka and eventually the appeal was dismissed. Thus it is clear that the exparte decree is still in force.

6. Mr. Harun-Ar-Rashid, learned Advocate appearing for the petitioner has argued that since the exparte decree was obtained by practising fraud. The executing Court had power to put back the defendant into possession of the suit land. We cannot accept the submission of Mr. harun-Ar-Rashid for the simple reason that rightly or wrongly so long the decree remains that cannot be nullified or set at naught by putting the defendant into possession of the suit land which the plaintiff got through the due process of the in execution of the decree passed in the suit. We are of the view that if the defendant succeeds to set aside the exparte decree he would to be without any remedy and he shall be surely entitled to restitution of possession of the suit land under section 144 of the Code. Mr. Harun-Ar-Rashid has referred to some decisions in which the High Court Division and this Court as well interfered on the ground of fraud under section 151 of the Code. It does not require any elaboration for the proposition that if fraud is detected Court can always act under section 151 of the Code, but when the decree passed in a suit or a case is in existence no relief can be given to the defendant by way of restitution or restoration of possession of the suit land wherein the plaintiff was put into the possession through due process of law. We would like to observe further that since the appeal has been dismissed, the remedy of the defendant is to file revision application before the High Court Division.

With above observation this petition is dismissed.

Ed.

CIVIL PETITION FOR LEAVE TO APPEAL No. 3096 OF 2012

(From the judgment and order dated 12^th June, 2012 passed by the High Court Division in Civil Revision No. 700 of 2005).

Shahidul Hoq @ Md. Shahidul Hoq Vs. Bangladesh

Case No: Civil Petition for Leave to Appeal No. 1416 of 2004

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: V ADC (2008) 51

Case Year: 2008

Appellant: Shahidul Hoq @ Md. Shahidul Hoq

Respondent: Bangladesh

Subject: Property Law,

Delivery Date: 2006-05-07

Shahidul Hoq @ Md. Shahidul Hoq Vs. Bangladesh
V ADC (2008) 51

Supreme Court
Appellate Division
(Civil)

Present
Md. Ruhul Amin J
Md. Tafazzul Islam J

Shahidul Hoq @ Md. Shahidul Hoq............... Petitioner
Vs.
Government of the People's Republic of Bangladesh represented by the Deputy Commissioner & others, Comilla……………………..Respondents

Judgment
May 7, 2006.

That the plaintiff/respondent claimed that the suit land along with other property belonged to G.M. Faruki and during the settlement survey the suit property was shown in the custody of Court of Wards; D.W.1 in his cross examination admitted that there is no document to show that the father of G.M. Faruki was the owner of the suit property; D.W.1 also admitted that the property was recorded under C.S. Khatian No.34 of Debiddar Mouza in the name of court of Wards on behalf of G.M. Faruki which shows that G.M. Faruki was the owner and possessor of the suit property and there is nothing on record to show that any of the sisters of G.M. Faruki ever inherited the same from their father; D.W.1 also admitted in his cross-examination that the suit property was never transferred or gifted away to any one by G.M. Faruki and he also admitted that the plaintiff respondent has taken over the property of Faruki Estate and thus the exchange of property by a deed of Ewaz has no basis; the witness of the plaintiff respondent also categorically deposed that the disputed land was vested in the Government and since G.M. Faruki left the country the plaintiff respondent is possessing the same. ….. (4)

Cases Referred To-
Md. Afaz Uddin Mollah and others vs. Md. Maizuddin Shaikh, BCR 1983 (AD) 48.

Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Not represented- Respondents.

Civil Petition for Leave to Appeal No. 1416 of 2004
(From the judgment and order dated 18th July, 2004 passed by the High Court Division in Civil Revision No.4555 of 2002).

Judgment

Md. Tafazzul Islam J.- This petition for leave to appeal arises out of the judgment dated 18.7.2004 of the High Court Division in Civil Revision No. 4555 of 2002 making the Rule absolute which was obtained against the judgment and decree dated 15.1.2001 of the learned Subordinate Judge (now Joint District Judge), 2nd Artha Rin Adalat, Comilla in Title Appeal No. 134 of 1991 reversing those of dated 4.4.1991 passed by the learned Senior Assistant Judge, Comilla in Title Suit No. 121 of 1990 decreeing the suit.

2. The respondent instituted the above Title Suit No. 121 of 1990 praying for declaration that the plaintiff i.e. the Government of the People's Republic of Bangladesh, is the owner of the suit land and that the ex parte decree dated 4.3.1975 passed by the learned Munsif (now Assistant Judge), 1st Court, Comilla in Miscellaneous Case No. 104 of 1974 is collusive, fraudulent, null and void stating, inter alia, that Mr. Kazi Golam Mohiuddin faruki (G.M. Faruki) was the original owner and possessor of the suit land along with other lands and Settlement Khatian No. 4 was prepared in the name of the Court of Wards on his .behalf; G.M. Faruki was permanently residing in Comilla and his house was known as "Faruki House", after partition of India in 1947 G.M. Faruki left Comilla and was living at Calcutta permanently and he also died there leaving behind no issue; one Syed Md. Barek, the predecessor of defendant No.1, was staying in the said "Faruki House" with his family and G.M. Faruki did not transfer any property to the said Syed Md. Barek; according to the provisions of the State Acquisition and Tenancy Act 1950 the entire property of the G.M. Faruki vested in the Government; some part of the suit land is used as local hat/bazar and some part of it is in the possession of the Government Tahsil Office and in Dag No. 564 there is a pond which is used by the staff of the Tahsil Office and also by the shopkeepers of local hat/bazar and the employees of respondent cultivates fishery in the said pond; the respondent had also been possessing some portion of the suit land by filing up the low land and thereby improving the hat/bazar; S.A. record was wrongly prepared in the name of G.M. Faruki instead of the respondent; thereafter one Mrs. Sahera Khatoon filed Miscellaneous Case No. 104 of 1974 praying for correction of the khatian and got exparte decree dated 4.3.1975 which clouded the title of the respondent in the suit land and hence the suit. The defendant petitioner contested the above suit by filing written statement contending that late Mr. Kazi Reaz Uddin Ahmed was the owner of the suit land and he died leaving his son Nawab Sir G.M. Faruki and 5 daughters namely (1) Rahela Khatun (2) Amena Khatoon (3) Fatema Khatoon (4) Halena Khatoon (5) Shahera Khatoon as his heirs; Rahela Khatoon died leaving her only one son Syed Md. Barek as her heir; Syed Md. Barek also died leaving his two sons Syed Abdur Rahim and Syed Md. Jafor Sadek as his heirs; thereafter the said Syed Abdur Rahim died without any issue and his share devolved upon Syed Md. Jafor Sadek and thus Syed Md. Jafor Sadek became the owner and possessor of the suit property; thereafter through amicable settlement the whole property was recorded in the name of Nawab Sir GM. Faruki along with other co-sharers of the property; a miscellaneous case filed for correction of record of right by Sahera Khatoon in which the respondent was made a party and notice of the said case was duly served upon the respondent but the respondent not being present at the time of hearing of the case on 4.3.1975, an ex parte order was passed for correction of the record and thereafter the record was duly corrected; that Syed Md. Abdur Rahim paid rent for the suit land and got receipts (Dakhilas); after the death of Syed Md. Abdur Rahinj his brother Syed Md. Jafor Sadek because the sole owner of the suit land; on 20.1.1987 the said Syed Md. Jafor Sadek transferred the suit land to Md. Shahidul Hoq, the defendant No.2 petitioner, by a registered sale deed and thus the defendant No. 2/ petitioner became the owner and possessor of the suit property and none else was/is in possession of the same on behalf of the respondent. The learned Senior Assistant Judge, Comilla after hearing, decreed the suit. On appeal the learned Subordinate Judge (now Joint District Judge) and Artha Rin Adalat after hearing, allowed the appeal, then the respondent moved the High Court Division whereupon Rule was issued in Civil Revision No. 4555 of 2002 and the High Court Division after hearing made the Rule absolute.

3. The learned counsel appearing for the defendant No. 21 petitioner submitted that the appellate court, the final court of facts, on consideration of the evidence and other materials on record allowed the appeal and the High Court Division failed to consider that the plaintiff respondent having failed to prove that the suit land is excess land of the landlord it cannot be said that the plaintiff respondent has right, title and interest in the suit land and as such the finding of the trial Court about the right and title of the plaintiff/respondent in the disputed land is not at all sustainable; the High Court Division also failed to consider that through amicable settlement, the suit land was recorded in the name of G.M. Faruki including other co-sharers of the property and that the respondent was made party to the Miscellaneous Case No. 104 of 1974 and notice was also served upon the respondent and the respondent not being present at the time of hearing of the case on 4.3.1975 an ex parte order was passed directing correction of the record of right and subsequently the records have been corrected.

4. As it appears the High Court Division on consideration of the evidence on record found that the plaintiff/respondent claimed that the suit land along with other property belonged to G.M. Faruki and during the settlement survey the suit property was shown in the custody of Court of Wards; D.W.1 in his cross examination admitted that there is no document to show that the father of G.M. Faruki was the owner of the suit property; D.W.1 also admitted that the property was recorded under C.S. Khatian No.34 of Debiddar Mouza in the name of court of Wards on behalf of G.M. Faruki which shows that G.M. Faruki was the owner and possessor of the suit property and there is nothing on record to show that any of the sisters of G.M. Faruki ever inherited the same from their father; D.W.1 also admitted in his cross-examination that the suit property was never transferred or gifted away to any one by G.M. Faruki and he also admitted that the plaintiff respondent has taken over the property of Faruki Estate and thus the exchange of property by a deed of Ewaz has no basis; the witness of the plaintiff respondent also categorically deposed that the disputed land was vested in the Government and since G.M. Faruki left the country the plaintiff respondent is possessing the same; the High Court Division further found that the trial court disbelieved the photocopy of the rent receipts as well as the claim of possession of the defendant petitioner in the suit land and the trial court also found that although the definite case of defendant petitioner was that notice in the miscellaneous case was duly served on the plaintiff respondent but he took no steps the service of notice on consideration of both oral and documentary evidence the trial court also found that the defendant petitioner had no title or possession in the suit property and that the exparte decree obtained on 4.3.75 in the miscellaneous case was obtained by fraud; the High Court Division further found that the judgment of the trial court is well reasoned and elaborate and is amply supported by evidence and the lower appellate court failed to reverse the findings of the trial court by cogent reason; the High Court Division in its judgment also referred to the case of Md. Afaz Uddin Mollah and others vs. Md. Maizuddin Shaikh reported in BCR 1983 (AD) 48 wherein it was held that reversal of the trial court judgment without adverting to the evidence on which the trial court's judgment is based is not a proper judgment of reversal.

5. We are of the view that the High Court Division on proper consideration of the
evidence and the materials on record arrived at a correct decision and there is no cogent reason to interfere with the said decision.
The petition is dismissed.
Ed.

Shahidullah (Md) Vs. Eastern Bank Ltd. and others

Case No: Civil Revision No. 3901 of 1999.

Judge: Md. Fazlul Haque,

Court: High Court Division,,

Advocate: HR Sharif,Abul Hasnath,,

Citation: 54 DLR (2002) 41

Case Year: 2002

Appellant: Shahidullah (Md)

Respondent: Eastern Bank Ltd. and others

Subject: Property Law,

Delivery Date: 2001-03-22

Shahidullah (Md) Vs. Eastern Bank Ltd. and others
54 DLR (2002) 41

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Fazlul Haque J
NK Chakravartty J

Shahidullah (Md)……Petitioner
Vs.
Eastern Bank Ltd. and others………..Opposite Parties

Judgment
March 22, 2001.

Artha Rin Adalat Ain (IV of 1990)
Sections 6 & 7
Code of Civil Procedure (V of 1908)
Section 115
The High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat.

Cases Referred To-
46 DLR (AD) 174; 52 DLR (AD) 76; 53 DLR (AD) 9.

Lawyers Involved:
HR Sharif Advocate—For the Petitioner.
Abul Hasnath with MGH Ruhullah, Advocates —For Opposite Party No. 1.

Civil Revision No. 3901 of 1999.

Judgment

Md. Fazlul Haque J.- This Rule is directed against the Judgment and Order dated 19-10-99 passed by the Subordinate Judge and Artha Rin Adalat No. 1 Dhaka allowing the Miscellaneous Case No. 40 of 1999 filed by the plaintiff-opposite party No. 1 under section 151 of the Code of Civil Procedure restoring the Title Suit No. 139 of 1999 arising out of Title Suit No. 32 of 1995) to its original file and number.

2. The short facts for the purpose of disposal of this Rule are that the opposite party No. 1 as plaintiff instituted Title Suit No. 32 of 1995 in the Court of Subordinate Judge, 3rd Court & Artha Rin Adalat, Dhaka against the opposite party Nos. 2 and 3 and the present petitioner. The plaintiff is the bank. The opposite party No. 2 was the importer/exporter in ready-made garments. The plaintiff found that the opposite party No. 2 was credit worthy and granted him back to back credit and CC limit facilities. The opposite party No. 2 on behalf of International Corporations of Saudi Arabia opened a LC for an amount of US $ 32,000 and requested the plaintiff bank for an advance of 60% of the LC amount which was allowed by the plaintiff. On 1-11-88 the opposite party No. 2 opened another LC with the plaintiff bank and commitment was made to make equitable mortgage of immovable property located at plot No. 46, Road 9D, Sector No. 5 of the Uttara Model Town as collateral security an amount of US $ 11,899,12 worth of back to back LC but the opposite party No. 2 did not comply with the formalities of equitable mortgage. The opposite party No. 2, in fact, failed to carry out the contract with the said International Corporations of Saudi Arabia and the LC was cancelled. Consequently, a liability of Taka 6,28,950 was credited with the bank as on 28-5-89. The plaintiff bank repeatedly requested the defendant No. 2 for repayment of the said amount but the opposite party No. 2 did not take any steps either to pay or to make arrangement for liquidating the said amount. There was another similar liability of Taka 21,93,701,95 as on 31-12-94. Be that as it may, the plaintiff bank filed the aforesaid suit in the Subordinate Judge and Artha Rin Adalat No. 3 for recovery of Taka 21,93,701,95 with 20% interest.

3. The opposite party Nos. 2 and 3 did not contest the suit though the opposite party No. 3 filed written statement and denied that he was a borrower of the loan as alleged by the plaintiff bank. Ultimately, when the suit came up for hearing it was transferred to the Court of Subordinate Judge and Artha Rin Adalat No. 1 and was re-numbered as Title Suit No. 139 of 1999. It appears that the Title Suit No. 139 of 1999 was dismissed for default by order dated 26-4-99. The plaintiff (opposite party No. 1 herein) filed miscellaneous case being Miscellaneous Case No. 40 of 1999 in the said court under Order 9, rule 9 of the Code of Civil Procedure.

4. On 1-7-99 the learned Subordinate Judge dismissed the said miscellaneous case as being not maintainable on a technical ground that the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure was not signed by the Officer of the Bank.

5. On 29-7-99 the plaintiff bank again filed an application under section 151 of the Code of Civil Procedure praying for restoration of the Miscellaneous Case No. 4 of 1999.

6. The present petitioner filed written objection to the petition filed by the opposite party No. 1 bank. Be that as it may, the learned Artha Rin Adalat allowed the prayer of the plaintiff-opposite party No. 1 bank and restored the suit to its original file and number.

7. Mr. Md. Shahidullah, the respondent No. 3 petitioner being aggrieved with the judgment and order dated 19-10-99 moved this court and obtained the present Rule.

8. Mr. HR Sharif, the learned Advocate appearing on behalf of the petitioner submits that the learned Subordinate Judge and Artha Rin Adalat committed an error of law in allowing the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure and illegally restored the Title Suit No. 139 of 1999. The learned Advocate further submits that since the miscellaneous case was once dismissed for default, the learned Court had no jurisdiction to restore the same under section 151 of the Code of Civil Procedure.

9. Mr. Abul Hasnat, the learned Advocate appearing on behalf of the plaintiff bank submits that this Court does not have jurisdiction to entertain a revisional application under section 115 of the Code of Civil Procedure against any order passed by the Court of Subordinate Judge and Artha Rin Adalat. The learned Advocate submits that there is a clear bar in section 6 of the Artha Rin Adalat Ain that no Court shall raise any question in respect of any order passed by the Court of Artha Rin Adalat subject to section 7 of the Artha Rin Adalat Ain, Section 7 of the said Ain provides for an appeal against the judgment and decree passed by the Artha Rin Adalat.

10. We have heard the learned Advocate and perused the application as well as the counter affidavit filed by the plaintiff opposite party No. 1. We have also considered the decision referred to by the learned Advocate appearing on behalf of the plaintiff opposite party No. 1 bank reported in 46 DLR (AD) 174, 52 DLR (AD) 76 and lastly, a decision reported in 53 DLR (AD) 9. The consistent view that has been taken by the Appellate Division is that the High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat. This is now a settled law and we have no option but to follow the same. Accordingly, we are of the view that this revisional application is not at all maintainable and the Rule is liable to be discharged.
Accordingly, the Rule is discharged without any order as to costs.

11. The order dated 14-11-99 staying all further proceedings of Title Suit No. 139 of 1999 pending in the Court of Subordinate Judge and Artha Rin Adalat No. 1, Dhaka is hereby vacated.
The suit shall proceed in accordance with law and the same shall be disposed of expeditiously, preferably within three months from the date of receipt of the copy of this judgment.
Ed.

Shahidullah (Md) Vs. Eastern Bank Ltd. and others, 54 DLR (2002) 41

Case No: Civil Revision No. 3901 of 1999

Judge: Md. Fazlul Haque,

Court: High Court Division,,

Citation: 54 DLR (2002) 41

Case Year: 2002

Appellant: Shahidullah (Md)

Respondent: Eastern Bank Ltd. and others

Subject: Revisional Jurisdiction,

Delivery Date: 2001-3-22

Supreme Court
High Court Division
(Civil Revisional Jurisdiction)

Present:
Md. Fazlul Haque J
NK Chakravartty J

Shahidullah (Md)
.…..……Petitioner
Vs.
Eastern Bank Ltd. and others
………..Opposite Parties

Judgment
March 22, 2001

Artha Rin Adalat Ain (IV of 1990)
Sections 6 & 7
Code of Civil Procedure (V of 1908)
Section 115
The High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat.

Cases Referred To-
46 DLR (AD) 174; 52 DLR (AD) 76; 53 DLR (AD) 9.

Lawyers Involved:
HR Sharif Advocate—For the Petitioner.
Abul Hasnath with MGH Ruhullah, Advocates —For Opposite Party No. 1.

Civil Revision No. 3901 of 1999.

JUDGMENT

Md. Fazlul Haque J.

1. This Rule is directed against the Judgment and Order dated 19-10-99 passed by the Subordinate Judge and Artha Rin Adalat No. 1 Dhaka allowing the Miscellaneous Case No. 40 of 1999 filed by the plaintiff-opposite party No. 1 under section 151 of the Code of Civil Procedure restoring the Title Suit No. 139 of 1999 arising out of Title Suit No. 32 of 1995) to its original file and number.

2. The short facts for the purpose of disposal of this Rule are that the opposite party No. 1 as plaintiff instituted Title Suit No. 32 of 1995 in the Court of Subordinate Judge, 3rd Court & Artha Rin Adalat, Dhaka against the opposite party Nos. 2 and 3 and the present petitioner. The plaintiff is the bank. The opposite party No. 2 was the importer/exporter in ready-made garments. The plaintiff found that the opposite party No. 2 was credit worthy and granted him back to back credit and CC limit facilities. The opposite party No. 2 on behalf of International Corporations of Saudi Arabia opened a LC for an amount of US $ 32,000 and requested the plaintiff bank for an advance of 60% of the LC amount which was allowed by the plaintiff. On 1-11-88 the opposite party No. 2 opened another LC with the plaintiff bank and commitment was made to make equitable mortgage of immovable property located at plot No. 46, Road 9D, Sector No. 5 of the Uttara Model Town as collateral security an amount of US $ 11,899,12 worth of back to back LC but the opposite party No. 2 did not comply with the formalities of equitable mortgage. The opposite party No. 2, in fact, failed to carry out the contract with the said International Corporations of Saudi Arabia and the LC was cancelled. Consequently, a liability of Taka 6,28,950 was credited with the bank as on 28-5-89. The plaintiff bank repeatedly requested the defendant No. 2 for repayment of the said amount but the opposite party No. 2 did not take any steps either to pay or to make arrangement for liquidating the said amount. There was another similar liability of Taka 21,93,701,95 as on 31-12-94. Be that as it may, the plaintiff bank filed the aforesaid suit in the Subordinate Judge and Artha Rin Adalat No. 3 for recovery of Taka 21,93,701,95 with 20% interest.

3. The opposite party Nos. 2 and 3 did not contest the suit though the opposite party No. 3 filed written statement and denied that he was a borrower of the loan as alleged by the plaintiff bank. Ultimately, when the suit came up for hearing it was transferred to the Court of Subordinate Judge and Artha Rin Adalat No. 1 and was re-numbered as Title Suit No. 139 of 1999. It appears that the Title Suit No. 139 of 1999 was dismissed for default by order dated 26-4-99. The plaintiff (opposite party No. 1 herein) filed miscellaneous case being Miscellaneous Case No. 40 of 1999 in the said court under Order 9, rule 9 of the Code of Civil Procedure.

4. On 1-7-99 the learned Subordinate Judge dismissed the said miscellaneous case as being not maintainable on a technical ground that the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure was not signed by the Officer of the Bank.

5. On 29-7-99 the plaintiff bank again filed an application under section 151 of the Code of Civil Procedure praying for restoration of the Miscellaneous Case No. 4 of 1999.

6. The present petitioner filed written objection to the petition filed by the opposite party No. 1 bank. Be that as it may, the learned Artha Rin Adalat allowed the prayer of the plaintiff-opposite party No. 1 bank and restored the suit to its original file and number.

7. Mr. Md. Shahidullah, the respondent No. 3 petitioner being aggrieved with the judgment and order dated 19-10-99 moved this court and obtained the present Rule.

8. Mr. HR Sharif, the learned Advocate appearing on behalf of the petitioner submits that the learned Subordinate Judge and Artha Rin Adalat committed an error of law in allowing the said miscellaneous case under Order 9, rule 9 of the Code of Civil Procedure and illegally restored the Title Suit No. 139 of 1999. The learned Advocate further submits that since the miscellaneous case was once dismissed for default, the learned Court had no jurisdiction to restore the same under section 151 of the Code of Civil Procedure.

Mr. Abul Hasnat, the learned Advocate appearing on behalf of the plaintiff bank submits that this Court does not have jurisdiction to entertain a revisional application under section 115 of the Code of Civil Procedure against any order passed by the Court of Subordinate Judge and Artha Rin Adalat. The learned Advocate submits that there is a clear bar in section 6 of the Artha Rin Adalat Ain that no Court shall raise any question in respect of any order passed by the Court of Artha Rin Adalat subject to section 7 of the Artha Rin Adalat Ain, Section 7 of the said Ain provides for an appeal against the judgment and decree passed by the Artha Rin Adalat.

9. We have heard the learned Advocate and perused the application as well as the counter affidavit filed by the plaintiff opposite party No. 1. We have also considered the decision referred to by the learned Advocate appearing on behalf of the plaintiff opposite party No. 1 bank reported in 46 DLR (AD) 174, 52 DLR (AD) 76 and lastly, a decision reported in 53 DLR (AD) 9. The consistent view that has been taken by the Appellate Division is that the High Court Division is not vested with the revisional jurisdiction against any order passed by the Artha Rin Adalat. This is now a settled law and we have no option but to follow the same. Accordingly, we are of the view that this revisional application is not at all maintainable and the Rule is liable to be discharged.

10. Accordingly, the Rule is discharged without any order as to costs.

11. The order dated 14-11-99 staying all further proceedings of Title Suit No. 139 of 1999 pending in the Court of Subordinate Judge and Artha Rin Adalat No. 1, Dhaka is hereby vacated.

The suit shall proceed in accordance with law and the same shall be disposed of expeditiously, preferably within three months from the date of receipt of the copy of this judgment.

Ed.

Shahidullah (Md) Vs. Md. Yunus and others , 50 DLR (AD) (1998) 164

Case No: Civil Petition for Leave to Appeal No.775 of 1997

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Korban Ali,,

Citation: 50 DLR (AD) (1998) 164

Case Year: 1998

Appellant: Shahidullah (Md)

Respondent: Md. Yunus and others

Subject: Procedural Law,

Delivery Date: 1997-11-16

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Shahidullah (Md)
…………………Plaintiff-Petitioner
Vs.
Md. Yunus and others
……………….Respondents

Judgment
November 16, 1997.

The Constitution of Bangladesh, 1972
Article 103
The appeal was heard ahead of the date appearing on the notice for hearing, at detriment of the petitioner. It is a fit case in which the petitioner should move the High Court Division for a rehearing of the appeal and the Court should allow it provided the allegation is found to be correct. Nobody should suffer for any wrong done or omission made by a court …………………(3)

Lawyers Involved:
Mahbubey Alam, Advocate instructed Chowdhury Md. Zahangir, Advocate-on-Record, For the Petitioner.
Korban Ali, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No.1.
Not represented — Respondent Nos. 2-3.

Civil Petition for Leave to Appeal No.775 of 1997.

JUDGMENT

ATM Afzal CJ.

In view of the order we propose to make in this petition for leave to appeal, it will be sufficient to notice that the plaintiff petitioner is making a grievance that FMA No. 42 of 1997 filed by the defendant-respondents which arises out of Miscellaneous Case No. 1 of 1986, under Order XXXIX rule 2(3) of the Code of Civil Procedure, of the Second Court of Subordinate Judge, Dhaka, was heard by a Division Bench of the High Court Division in the absence of the petitioner (respondent in said FMA) and allowed by the impugned judgment and order dated 1st June, 1991 even though in the notice served upon the petitioner the date fixed for hearing of the said appeal was 25 June, 1997. The impugned decision was thus made without the petitioner being heard. In support of his allegation, the petitioner has enclosed a copy of the notice, which clearly states that the FMA No. 42 of 1997 has been set down for hearing on 25 June, 1997.

2. Mr. Korban Ali, learned Advocate, entering caveat for respondent No. 1, had no reply to the allegation made by the petitioner. Mr. Korban Ali says that he was not in the High Court Division and so it is difficult for him to refute the allegation.

3. There is no reason to disbelieve, prima facie, the allegation made by the petitioner. Nobody should suffer for any wrong done or omission made by a Court. It is a fit case in which the petitioner should move the High Court Division for a rehearing of the appeal and the Court should allow it provided the allegation is found to be correct.

4. Mr. Mahbubey Alam, learned Advocate for the petitioner, has submitted that on merit, also the impugned judgment is not sustainable, the submission may be reserved for the appropriate forum. Here the petitioner succeeds on the ground that he could not make his submission in the appeal for no fault of his own.

The petition is disposed of with observation as above.

Ed.

Shahin Mia Vs. Parul Begum wife of Ibrahim and others

Case No: Civil Petition for Leave to Appeal No. 1431 of 2009

Judge: B. K. Das,

Court: Appellate Division ,,

Advocate: Mr. Sarder Abul Hossian,Mazibur Rahaman,,

Citation: VII ADC (2010) 394

Case Year: 2010

Appellant: Shahin Mia

Respondent: Parul Begum wife of Ibrahim and others

Subject: Property Law,

Delivery Date: 2009-12-17

Shahin Mia Vs. Parul Begum wife of Ibrahim and others
VII ADC (2010) 394

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Shah Abu Nayeem Mominur Rahman J
BK Das J

Shahin Mia…………….….......Petitioner
Vs
Parul Begum wife of Ibrahim and others…………….....Respondents

Order
December 17, 2009.

We have heard the submissions of the learned Advocates for both the parties and perused the impugned judgment and all other evidence on record. The learned Advocate for the petitioner submits that the High Court Division committed an error of law in disturbing the findings of facts arrived at by both the Courts below and on misreading of the evidence on record committed an error of law in holding that the plaintiffs did not mention the date of cause of action and the date of dispossession and also gave perverse finding upon non-consideration of the findings of facts recorded by the lower appellate Court. The learned Advocate further submits that the learned judge of the High Court Division committed an error of law in holding that the suit is barred by limitation and also in finding that the plaintiffs did not adduce any direct evidence to prove alleged dispossession. …. (8)

Lawyers Involved:
Md. Shardur Abul Hossain, Advocate, (appeared with the leave of the Court) Instructed by Md. Nurul Islam Chowdhury, Advocate-on-Record-For the Petitioner.
Mazibur Rahaman, Advocate-on-Record-For Respondents Nos. 1-4 and 7.
Not represented- Respondent Nos. 5, 6 and 8-23.

Civil Petition for Leave to Appeal No. 1431 of 2009.
(From the judgment and order dated 11.05.09 passed by the High Court Division in Civil Revision No.57 of 2003)

Order

B. K. Das J. - This application for leave to appeal is directed against the judgment and order dated 11.5.09 of a learned Single Judge of the High Court Division making the rule being Civil Revision No. 157 of 2003 absolute and thereby setting aside the judgment and decree of the courts below and decreeing the suit in favour of the plaintiff.

2. The respondent Nos.1-8 as plaintiffs instituted Title Suit No. 18 of 1997 in the court of Senior Assistant Judge, Kasba, Brahmanbaria, impleading the present petitioner as defendants and respondent Nos.9-22 as other defendant and respondent No.23 as Proforma defendant, praying for declaration of title to the suit land and for recovery of Khas possession therein alleging, inter alia, that the suit plot No. 638 and 639 along with on non suited plot no. 643 measuring 39 decimals of land originally belonged to Samena Bibi which was finally published in her name in C.S. Khatian and that the said Samena Bibi died leaving behind her only daughter Amena Khatun and thereafter Amena Khatun died leaving behind her daughter Malekernessa alias Melaka. While Melaka was owning and possessing the said plots she transferred the entire land of plot No. 643 by executing and registering deed of sale No.3219 dated 26.4.62 and 07 decimals of land from the suit plots by executing and registering another deed of sale bearing No. 4967 dated 6.12.72 to the plaintiff No. 4 Abdul Sobhan alias Sobhan Miah. After purchase he mutated his name and got Jama separated in separation case No. 22483-84 by creating a separate Khatian No. 982 and took a loan from the Janata Bank, Brahmanbaria branch by mortgaging the said 07 decimals of land. Thereafter Maleka Begum died leaving behind one son Abdul Hossain, father of plaintiff No. 5, who died leaving behind plaintiff Nos. 3-5 as his sons and daughter and thus the plaintiff Nos. 1-4 became the owners of .27 decimals of land in the suit plot by way of purchase and by inheritance. It is further stated that in S.A. operation the suit property along with the property of plot No.643 has been wrongly recorded in the name of one Aderjaman and other, predecessors of the defendants in khatian No.117. The plaintiff learnt about the wrong record in the S.A. khatian on the basis of so-called partition suit No.172 of 1929. The defendant no. 5 with the help of other defendants forcibly entered into the land of plot No. 638 on 30.9.96 and constructed two dochala tin shed and 3 chouchala tin shed defying the objection raised by plaintiff No.3.

3. The defendant no. 5 contested the suit by filing a written statement contending, inter alia, that the suit is barred by limitation and that the suit plot no. 638 and 639 along with non suited plot no. 643 measuring an area of .39 decimals of land belonged to Samena Bibi and her name was rightly recorded in C.S. Khatian. Samena Khatun subsequently defaulted to pay rents and the Talukder was going to file a suit for realization of rent when Samena Bibi executed Istafanama deed dated 06.06.1920 and surrendered the property in favour of the landlord who settled the property to Munshi Mia son of Nawaj Ali on 10.09.1921 and thus Munshi Sheikh became the sole owner of the land of the said 3 plots and has been in possession of the said land and prayed for dismissal of the suit.

4. The Trial Court took necessary evidence both oral and documentary and on hearing the parties by the impugned judgment and decree dated 19.04.49 dismissed the suit.

5. Being aggrieved thereby the plaintiff preferred Title Appeal No. 74 of 1999 before the learned District Judge, Brahmanbaria, and that the 1st Court of the Additional District Judge, Brahmanbaria by judgment and decree dated 23.7.2002 dismissed the appeal and affirmed the decision of the trial Court.

6. Being aggrieved thereby the plaintiff as petitioner moved the High Court Division in Civil Revision no. 57 of 2003 and the learned Single Judge of the High Court Division upon hearing the parties made the rule absolute, set aside the judgment and decree of the courts below and decreed the suit in favour of the plaintiff.

7. Being aggrieved thereby the defendant as petitioner filed the instant petition seeking leave to appeal before the Appellate Division, Mr. Sharder Abul Hossain, the learned Advocate appears with the leave of the court for the petitioner while Mr. Mazibur Rahman, the learned-on-record appears on behalf the of respondent nos. 1-4 and 7.

8. We have heard the submissions of the learned Advocates for both the parties and perused the impugned judgment and all other evidence on record. The learned Advocate for the petitioner submits that the High Court Division committed an error of law in disturbing the findings of facts arrived at by both the Courts below and on misreading of the evidence on record committed an error of law in holding that the plaintiffs did not mention the date of cause of action and the date of dispossession and also gave perverse finding upon non-consideration of the findings of facts recorded by the lower appellate Court. The learned Advocate further submits that the learned judge of the High Court Division committed an error of law in holding that the suit is barred by limitation and also in finding that the plaintiffs did not adduce any direct evidence to prove alleged dispossession.

9. The grounds and submissions appear to have merit.
Accordingly, leave is granted.
Security of Tk.1,000/- is to be deposited within 1 (one) month.
The petitioners are permitted to prepare the paper book out of court in accordance with the Rules.
The order of stay granted earlier by this Division shall continue till disposal of the appeal.
Ed.

Shahin Reza and others Vs. Abdul Hamid & others

Case No: Civil Petition for Leave to Appeal No. 1089 of 2005

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: V ADC (2008) 682

Case Year: 2008

Appellant: Shahin Reza and others

Respondent: Abdul Hamid & others

Subject: Property Law,

Delivery Date: 2006-10-15

Shahin Reza and others Vs. Abdul Hamid & others
V ADC (2008) 682

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J

Shahin Reza and others.................Petitioners
Vs.
Abdul Hamid & others.....................Respondents

Judgment
October 15, 2006.

It is not disputed that the plaintiff was not a party to the decree passed in Title Suit No.167 of 1990. The High Court Division accordingly held that the plaintiff has no locus-standi to bring the present suit. The learned Advocate-on-Record submits that the plaintiff proved that his interest was adversely affected by the judgment and decree passed in Title Suit No. 167 of 1990. It is needless to mention here that the plaintiff not being party to the decree in question, the same is not automatically binding on him. Since the plaintiff could not prove that his interest was adversely affected by the decree, he is not required to avoid the decree by obtaining a declaration from the court. …. (7)

Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Petitioners
Subash Chandra Biswas, Advocate-on-Record-For the Respondents

Civil Petition for Leave to Appeal No. 1089 of 2005.
(From the judgment and order dated 26.07.2005 passed by the High Court Division in Civil Revision No.4786 of 1999.)

Judgment

M. M. Ruhul Amin J. - This petition for leave to appeal is directed against the judgment and order dated 26.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No.4786 of 1999 discharging the Rule.

2. Short facts are that the petitioner as plaintiff instituted Title Suit No. 22 of 1998 in the 4th Court of Assistant Judge, Dhaka praying for declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title Suit No. 167 of 1990 was illegal, inoperative and not binding upon the plaintiff contending, inter alia, that the suit land was allotted to one Musleem Miah, a refugee on 04.06.1963. The said Musleem Miah paid the entire money as per terms of allotment and lived in the suit land with other members of his family. The said Musleem Miah borrowed Tk. 3000/- from the father of the plaintiff and allowed him to stay in the land as a permissive possessor. After the war of liberation, Musleem Miah decided to migrate to Pakistan forever and handed over all the title papers in respect of the suit land in favour of the plaintiff’s father. On 30.10.1973 Musleem Miah executed a transfer deed in favour of the plaintiff’s father and that transfer deed was signed by Sirajul Islam, the full brother of Musleem Miah. Since the plaintiff’s father was in possession till his death, a good title by way of adverse possession was created in his favour in the suit land. The further case of the plaintiff is that the defendants were inducted into possession in a room in 1982 under the plaintiff’s father as a monthly tenant. The plaintiff’s father died in 1993. The defendant stopped paying rent from the last part of 1988 and disclosed about a bainanama from Musleem Miah in respect of the suit property and also claimed the ownership of the suit homestead. The further case of the plaintiff is that the defendant No. 1 managed to get a survey report on 31.03.1983 showing his possession in the suit homestead. Musleem Miah went to Pakistan in 1973 and died there. The plaintiff got a letter from the defendant No.2 on 26.04.1994 and came to know about the exparte decree in question. Thereafter, he further came to know about the kabala dated 25.07.1991. Hence is the suit.

3. The defendant No.1 contested the suit by filing a written statement contending, inter alia, that the suit property was allotted to Musleem Miah. While in possession the said Musleem Miah entered into a contract on 11.01.1972 for transfer of the suit property in favour of the defendant No.1. The consideration was fixed at Tk. 12,000/- out of which the defendant No.1 paid Tk.11,500/- as earnest money and on 11.01.1972 Musleem Miah executed a bainanama in favour of the defendant No.1. Musleem Miah banded over possession in favour of the defendant No.1 on that date and the latter began to possess the same. Since Musleem Miah delayed to execute and register the kabala, the defendant filed Title Suit No.35 of 1986 for Specific Performance of Contract.

4. The further case of the defendant is that he has established a silk factory upon the suit land and is in possession.

5. The trial court decreed the suit in part declaring the exparte decree dated 09.08.1990 passed in Title Suit No.167 of 1990 to be illegal, inoperative and not binding upon the plaintiff by judgment and decree dated 31.03.1998. On appeal, Title Appeal No.126 of 1998, the appellate court allowed the appeal and dismissed the plaintiff’s suit. Being aggrieved the plaintiff moved the High Court Division in revisional jurisdiction and the High Court Division discharged the Rule as noticed earlier.

6. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner and perused the judgment of the High Court Division and other connected   papers.

7. It is not disputed that the plaintiff was not a party to the decree passed in Title Suit No.167 of 1990. The High Court Division accordingly held that the plaintiff has no locus-standi to bring the present suit. The learned Advocate-on-Record submits that the plaintiff proved that his interest was adversely affected by the judgment and decree passed in Title Suit No. 167 of 1990. It is needless to mention here that the plaintiff not being party to the decree in question, the same is not automatically binding on him. Since the plaintiff could not prove that his interest was adversely affected by the decree, he is not required to avoid the decree by obtaining a declaration from the court.

8. In the facts and circumstances, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.
Accordingly, the petition is dismissed.
Ed.

Shahinur Alam (Md) Vs. People’s Republic of Bangladesh and others

Case No: Civil Petition For Leave to Appeal No. 396 of 1996

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Md. Mozaffar Hossain,,

Citation: 50 DLR (AD) (1998) 211

Case Year: 1998

Appellant: Shahinur Alam (Md)

Respondent: People’s Republic of Bangladesh and others

Subject: Administrative Law,

Delivery Date: 1997-11-27

Shahinur Alam (Md)

Vs.

People’s Republic of Bangladesh and others, 1998,

50 DLR (AD) (1998) 211

Supreme Court
Appellate Division
(Civil)

Present :
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Shahinur Alam (Md)…………………………..Petitioner

Vs.

People’s Republic of Bangladesh and others……………….Respondents

Judgment
November 27, 1997.

The Administrative Tribunals Act, 1980 (VII of 1981),
Section 4(2)

The Rules of Business, 1975
Rule 5
Charges against the government servant having proved with opportunity to defend and when such delinquent being dismissed with due approval of the president and omission of use of the name of the President is merely a technicality, such order of dismissal does not call for interference………………(8)

Lawyers Involved:
Md. Mozaffar Hossain, Advocate, instructed by Md Nawab Ali, Advocate-on-Record -For the Petitioner.
Not Represented — For the Respondents.

Civil Petition For Leave to Appeal No. 396 of 1996.
(From the Judgment and order dated 25-6-1996 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 82 of 1994).

Judgment:

Mohammad Abdur Rouf J.- The Petitioner Md. Shahinur Alam as a Munsif was proceeded against under the Government Servants (Discipline & Appeal) Rules, 1985 on the charges of misconduct and corruption with the specific allegation that as a Munsif at Bagaripara Upazila in the district of Natore he on 28-4-87 had delivered two Judgments decreeing suit Nos.58 and 59 of 1986 but on 3-5-87 by tampering with those Judgments he illegally dismissed those suits.

2. The then District Judge, Natore as an inquiry official found him guilty and in pursuance thereof the concerned authority after consultation with the Public Service Commission dismissed the petitioner from service with effect from 11-4-88 under Rules 4(3)(d) of the aforesaid Rules, 1985. On 18-3-89, the petitioner filed an application to the Hon’ble President of Bangladesh for reviewing the order of the dismissal from service and the same was rejected. Thereafter on 31-10-89 he instituted Administrative Tribunal Case No.396 of 1989 under section 4(2) of the Administrative Tribunals Act, 1980, for declaration of the said order of dismissal from service as illegal, alleging, inter alia, that the disciplinary proceeding against him was not lawful and that he was not given proper opportunity to defend himself in the proceeding and thereby he was illegally dismissed from service.

3. Respondent Nos.1 and 2, as opposite party Nos. 1 and 2 respectively, contested the case by filing a joint written statement denying the allegation of the petitioner and asserting, inter alia, that the petitioner was dismissed from service in accordance with law and that previously on one occasion he had also been placed under suspension and in another disciplinary proceeding he was awarded penalty in the form of stoppage of three annual increments and that his service record was not at all satisfactory.

4. The Administrative Tribunal, however, by its judgment and order dated 7-5-94 allowed the said case and set aside the order of dismissal of the petitioner from service holding, inter alia, that, the order of dismissal had been passed without consultation with the Supreme Court which is violative of the provision of Article 116 of the Constitution and that the same had also been passed in violation of the mandatory Rule 5 of the Rules of Business, 1975 inasmuch as the same was not passed by the order of the President the appointing authority of the petitioner.

5. Thereafter respondent No.2 preferred appeal in the Administrative Appellate Tribunal, Appellate case No.82 of 1994 against the said order of Administrative Tribunal. The appeal, however, allowed on contest by the Appellate Tribunal by its Judgment and order dated 25-6-96 and thereby petitioner’s case was dismissed.

6. The petitioner now seeks leave from the said Judgment of Administrative Appellate Tribunal.

7. Mr. Md. Mozaffer Hossain, learned Advocate appearing for the petitioner submits only one point namely that the order of dismissal from service was not expressly made in the name of the President Bangladesh or by his order. It is therefore violative of the mandatory Rule 5 of the Rules of Business, 1975. The Administrative Appellate Tribunal acted illegally in setting aside the Judgement of the Administrative Tribunal.

8. Evidently his point was raised before the appellate Tribunal which after perusing the relevant office file held that the Hon’ble President himself under the own hand had passed the impugned order dismissal and as such the Administrative Tribunal acted illegally in setting aside the impugned order of dismissal. It appears that the Administrative Tribunal itself also noted that the impugned order of dismissal had been passed without the approval of the Hon’ble President. Moreover, the impugned order as it appears at page 42 of the paper book shows that it has been expressly mentioned therein that concerned authority mentioning thereby the President of Bangladesh, who was the appointing authority of the petitioner took the decision on petitioner’s dismissal from service. Thus we find little substantive in the submission of the learned Advocate. No case for leave has been made out.

The petition is dismissed.
Ed.

Shahjahan Mridha Vs. Jalal Sikder and others

Case No: Civil Petition for Leave to Appeal No. 478 of 2006

Judge: Md. Hassan Ameen,

Court: Appellate Division ,,

Advocate: A. K. M. Shahidul Huq,,

Citation: VI ADC (2009) 147

Case Year: 2009

Appellant: Shahjahan Mridha

Respondent: Jalal Sikder and others

Subject: Property Law,

Delivery Date: 2007-11-14

Shahjahan Mridha Vs. Jalal Sikder and others
VI ADC (2009) 147

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J

Shahjahan Mridha………………..Petitioner
Vs.
Jalal Sikder and others…..... Respondents

Judgment
November 14, 2007.

After the death of Nazar Ali Pramanik, Abdul Khaleque Pramink inherited his father's share later selling his lands to Shushil Kumar Bhokta through registered kabala on 24-02-1975 only to buy back Shushil Kumar's lands through registered kabala on 18-02-1978. Subsequently, Abdul Khaleque Pramanik being the owner in possession of the lands sold the same on 18-02-1993 by kabala deed No. 8817 registered on 18-12-1993 to the plaintiff Nos. 1-2 and handed over possession to them. …. (2)

That notwithstanding, the defendant, thereafter, proving unwilling to give up Possession of the suit lands on one plea or the other at the plaintiffs request and on 36-03-1999 the defendant having refused to remove his house there from, the plaintiffs filed the aforesaid Title Suit praying for declaration of title and for khas possession. …. (2)

Lawyers Involved:
A. K. M. Shahidul Huq, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Petition for Leave to Appeal No. 478 of 2006
(From the judgment and order dated 03-08-2005 passed by the High Court Division in Civil Revision No. 6353 of 2002)

Judgment

Md. Hassan Ameen J.- The petitioner, the defendant, seeks leave to appeal against the judgment and order dated 03-08-2005 passed by a Single Bench of the High Court Division in Civil Revision No. 6353 of 2002 making the Rule absolute and thereupon setting aside the judgment and decree dated 25-08-2002 of the learned Joint District Judge, 1st Court, Rajbari in Title Appeal No. 90 of 2002. The appeal was filed, against judgment and decree dated April 23, 2002 in Title Suit No.352 of 1999 of the Court of Assistant Judge, Rajbari.

2. The short facts necessary for the purpose of disposal of the petition are that the plaintiff-respondent-petitioners filed Title Suit No. 35 of 1999 against the defendant-appellant-opposite party No.1 for declaration of title and khas possession of the suit land. The plaintiffs stated that the suit jote of the scheduled lands situated under Mouza-Khankhanapur, p.5. and District Rajbari in R.S. Khatian No. 419 and S.A. Khatian No. 464 belonged to a family of owners-in-possession consisting of Amir Mridha, Mohiuddin Mridha, Hazu Khatun, Jahirun Bibi and Amena Khatoon, who as R. S. recorded tenants held the lands in ejmali. It transpired that the cosharer tenant Amir Mridha died unmarried leaving behind his brother Mohiuddin Mridha, sisters Hazu Khatoon and Jahirun Bibi and mother Amena Khatoon as his heirs and successors. The said Hazu Khatoon and Jahirun Bibi sold .97 decimals and .13 decimals of land to their brother Mohiuddin on 12-02-1949 by registered kabala and handed over possession to him. The said Mohiuddin Mridha sold .30 decimals of land which Mohiuddin got by inheritance through registered kabala on 14-10-1950 to Shundari Nessa, wife of Nazar Ali Pramanik and handed over the possession of the same to her. The said Sundari Nessa possessing .30 decimals of lands through her husband Nazar Ali Pramanik died before the S.A. operation leaving her only son Abdul Khaleque Pramanik and her husband Nazar Ali Pramanik as her heirs and successors, After the death of Nazar Ali Pramanik, Abdul Khaleque Pramink inherited his father's share later selling his lands to Shushil Kumar Bhokta through registered kabala on 24-02-1975 only to buy back Shushil Kumar's lands through registered kabala on 18-02-1978. Subsequently, Abdul Khaleque Pramanik being the owner in possession of the lands sold the same on 18-02-1993 by kabala deed No. 8817 registered on 18-12-1993 to the plaintiff Nos. 1-2 and handed over possession to them. It is against this backdrop that the defendant filed Title Suit No.155 of 1990 which was dismissed for default. The plaintiffs filed Case No.30 of 1994 in the Union Parishad against the defendant No.1 for having cut away bamboos from lot No.5567 by force, taken possession and created house thereon, which was not contested by the defendants and plaintiffs got an ex parte order of compensation. The defendant also forcibly took possession of some lands that, wee initially subject of a wrong entry in the B.S. records lat was subsequently corrected in favour if plaintiffs upon an objection filed by hem. That notwithstanding, the defendant, thereafter, proving unwilling to give up Possession of the suit lands on one plea or the other at the plaintiffs request and on 36-03-1999 the defendant having refused to remove his house there from, the plaintiffs filed the aforesaid Title Suit praying for declaration of title and for khas possession.

3. The defendant No.1 contested the suit by filing writ and statement denying the material allegations so made by the plaintiffs specially on account of the history of the title of the suit lands, contending, inter alia, that Mohiuddin Mridha never parted with the suit lands as stated by the plaintiffs. But instead died owning and possessing of the suit lands leaving his three sons, Shahjahan Mridha, Malek Mridha and Selim Mridha and his first wife Jamiran Nessa and daughter Beauty Khatoon. It was also stated that the defendant No.1, therefore, appropriately has a dwelling house in the suit lands paying taxes to the Union Parishad. In this regard, the defendant No.1 claimed that the documents relied upon by the plaintiffs not being genuine and, therefore, not acted upon, the plaintiffs have not right, title, interest and possession of the suit lands.

4. The learned Assistant Judge, Rajbari upon hearing both sides, decreed the suit vide judgment and decree dated 23-04-2002 and 28-04-2002 respectively against which the defendant-appellant-opposite-party No.1 preferred aforesaid appeal before the learned District Judge, 1st Court, Rajbari, which was transferred to the Court of learned Joint District Judge, who upon hearing the parties allowed the appeal and set aside the judgement and decree of the trial Court. Being aggrieved and dissatisfied thereby, the plaintiff-respondents preferred Civil Revision No.6353 of 2002 before the High Court Division and the learned Single Judge of the High Court Division after hearing both sides made the Rule absolute on 03-08-2005. Hence, the leave-petition has been filed by the petitioner.

5. A.K.M. Shahidul Huq, the learned Advocate-on-Record appearing for the petitioner, submits that the learned Single Judge of the High Court Division committed an error of law resulting an error occasioning failure of justice in setting aside the judgment and decree of the learned Joint District Judge, 1st Court, Rajbari. He further submits that the learned Single Judge of the High Court Division at the time of passing the impugned judgment and order ought to have taken into consideration that the learned Joint District Judge, 1st Court, Rajbari as a final Court of fact rightly arrived at a correct finding in setting aside the judgment and decree of the trial Court on proper appreciation and assessment of both oral and documentary evidences on record and rightly set aside the judgment and decree of the learned Assistant Judge, Rajbari. He lastly submits that the impugned judgment and order of the learned Single Judge of the High Court Division is not a proper judgment of reversal which deserves interference by this Division.

6. We have heard the learned Advocate for the petitioner and perused the materials on record and reasons to believe that the submissions of the learned Advocate for the petitioner have got no substance and as such the impugned judgment and order does not call for our interference and accordingly, the petition is dismissed.
Ed.

Shahriar Rashid Khan and other Vs. Bangladesh and others, II ADC (2005) 181

Case No: Civil Appeal Nos. 18 and 19 of 1997

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: KS Nabi,,

Citation: II ADC (2005) 181

Case Year: 2005

Appellant: Shahriar Rashid Khan and other

Respondent: Government of Bangladesh

Subject: Constitutional Law,

Delivery Date: 1998-4-19

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J

Shahriar Rashid Khan
..............Appellant (In Civil Appeal No. 18 of 1997)
Sayed Faruque Rahman Col. (Reted.)
.......Appellant (In Civil Appeal No. 19 of 1997)
Vs.
Bangladesh and others
............Respondents (In both the appeal)

Judgment
April 19, 1998.

Constitution of Bangladesh, 1972
Article 103(2)
The Indemnity Ordinance (L of 1975)
The Indemnity (Repeal) Act, 1996
On behalf of the respondent Government affidavit-in-opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20th August, 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made the Indemnity Ordinance 1975 a part of the Constitution, that paragraphs 3A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20th August, 1975 and the 9th April , 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the Indemnity Ordinance not being a part of the Constitution, but an Ordinary law, the repeal thereof does not attract article 142 of the Constitution and that the Indemnity Ordinance has been validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional. …. (11)

Cases Referred to-
Kay V. Goodwin; Surtees V Ellison; Dosso's case 11 DLR (SC) 1; Halima Khatun 30 DLR (AD) 207; Haji Joynal Abedin 32 DLR (AD) 110; Eheteshamuddin Iqbal 33 DLR (AD) 154.

Lawyers Involved:
Korban Ali, Advocate, instructed by Azra Ali, Advocate-on-Record - For the Appellant (In both the Appeals)
K. S. Nabi, Attorney General (Bhuiyan, Additional Attorney General, Shahabuddin Ahmed, M. Farooq, Deputy Attorney General, Obadul Raham, Mustafa and Baziur Rahman, Assistant Attorney General with him) Sharifuddin Chaklader, Advocate-on-Record - Respondents No. 1 A. N.(In both the Appeals)

Civil Appeal Nos. 18 and 19 of 1997.
(From the Judgment and Order dated 28th January, 1997 passed by the High Court Division, Dhaka in Writ Petition No. 5321 and 5313 of 1996 respectively)

JUDGMENT

ATM Afzal CJ.

1. These two appeals, certified by the High Court Division under article 103(2)(a) of the Constitution, involve consideration of one central question and that is, whether the Indemnity (Repeal) Act 1996, Act No. 21 of 1996, briefly the Act, (published in the Bangladesh Gazette (additional issue) dated 14, November, 1996) is ultra vires the Constitution. At the end of the hearing of the appeals, we have come to the unanimous and unhesitating conclusion that it is not, and the Act is a valid piece of legislation. Now we turn to the facts leading to these appeals and give the reasons for our decision.

2. The appellant in Civil Appeal No. 18 of 1997 filed writ petition No. 5321 of 1996 seeking a declaration that the Act was void, illegal, ultra vires of the Constitution and of no legal effect and further that Dhanmondi P.S. Case No. 10(10) 96 dated 2.10.96 and Lalbagh P.S Case No. 11(11)75 dated 4.11.75 were unlawful and void.

3. The appellant who was a captain in the Pakistan Army in 1970 joined the liberation war and was ultimately promoted to the rank of Lieutenant Colonel. He stated, inter alia, in his writ petition that he also served in the diplomatic service of Bangladesh but for his personal reason he resigned from diplomatic service in 1982 and coming back to Bangladesh joined both business and politics. He was arrested on 13.8.96 on baseless allegations regarding certain acts or things done in connection with or in preparation or execution of any plan for or steps necessitating the historical change and proclamation of martial law on the morning of the 15 August, 1975. The appellant came to know about the aforesaid criminal cases while inside the jail.

4. The appellant alleged that in 1975 when the democratic system was throttled by the then BAKSHAL Government and an economic crisis and a serious unrest was prevailing all over the country, a revolution took place on the 15th August (1975) when the Government in power was overthrown and in this process some unwanted happenings took place in the residence of the then President of Bangladesh at Road No. 32, Dhanmondi, Dhaka and some other places also. The appellant who was then a Major in the Bangladesh Army performed his duties under the orders of his superiors who were above him in the rank of Colonels, Brigadiers and Major Generals etc.

5. The appellant alleged that all the acts relating to the occurrence of the 15 August, 1975 were indemnified by the Indemnity Ordinance, 1975 (Ordinance No. L of 1975) dated 26.9.75, the entire subject matter of which has been ratified and validated by the Proclamation Order No. 1 of 1977 dated 23^rdApril, 1977 and the 5th Amendment of the constitution. The appellant asserted that the provisions of Act have become inconsistent with the provisions of paragraph 3A and paragraph 18 of the Fourth Schedule of the constitution.

6. The constitutionality of the Act has been challenged from various standpoints which will be noticed in course of the following discussion.
The appellant in the other appeal, Civil Appeal No. 19 of 1997, is Colonel (Retd). Syed Faruk Rahman whose mother, Mohmuda Rahman filed writ petition No. 5313 of 1996 on behalf of her son praying for similar reliefs as in the other case (in her petition only Dhanmondi P. S. Case No. 10(10) 96 dated 2.10.96 was referred to).

7. Syed Faruk Rahman was also an officer of the Pakistan Army who joined liberation war and was ultimately promoted to the rank of Lieutenant Colonel in the Bangladesh Army.

8. It has been stated, inter alia, in the writ petition that in 1975 there was an unrest in the country after the 4th amendment of the Constitution by which democratic system was abolished and one party Government was established. In such circumstances, change of Government took place on the 15 August, 1975, martial law was promulgated and a new Government came into existence. In course of change of Government and proclamation of martial law, said Faruk Rahman, a junior officer at that time, had to perform duties under the orders of his superiors in the Army on 15.8.75 and thereafter.

9. The President of Bangladesh in exercise of his powers under article 93(1) of the Constitution and the proclamation of 20 August, 1975 promulgated the Indemnity Ordinance, 1975 on 26.9.75 and thereby indemnified certain acts and things done in connection with or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of martial law on the morning of the 15^th August, 1975. The said indemnified acts and things were subsequently included in paragraphs 3A and 18 of the Fourth Schedule of the Constitution and in fact made part of the Constitution.

10. The aforesaid criminal Case under sections 120B/302/149/324/34/307/109 of the Penal Code was started in connection with the occurrence of the 15th August, 1975 which is against the provision of the Indemnity Ordinance, 1975 and paragraphs 3A and 18 of the Fourth Schedule as aforesaid. The Indemnity (Repeal) Act, 1996 by which the Indemnity Ordinance, 1975 has been repealed is illegal, void and ultra vires of the Constitution.

11. On behalf of the respondent Government affidavit-in-opposition was filed in which the allegations and submissions of the appellants were denied and it was asserted, inter alia, that the killing of the President of the country along with the members of his family and others including women and children at different places could not be said to be necessary for change of Government on the 20 August, 1975, that the said killings were offences which no law can indemnify nor has indemnified, that no provision of the Constitution had made the Indemnity Ordinance 1975 a part of the constitution, that paragraphs 3A and 18 of the Fourth schedule have not curtailed the power of Parliament of repeal any Act of Parliament or Ordinance made during the period between the 20^th August, 1975 and the 9^th April, 1979, that several Ordinances made during the said period have been repealed either by Ordinance or by Act of Parliament and that the Indemnity Ordinance not being a part of the constitution, but an Ordinary law, the repeal thereof does not attract article 142 of the constitution and that the Indemnity Ordinance has been validly repealed by the Indemnity (Repeal) Act, 1996 which is valid and constitutional.

12. The High Court Division took up the writ petitions together for consideration as the issue in both the petitions was the same, rather one. Mr. Md. Korban Ali, learned Counsel for the appellants before us, himself appeared for the writ petitioners while the learned Attorney General represented the Government respondent. It appears that on the request made by the court six senior members of the Bar had also appeared and made their submissions as Amicus Curiae. There was also an intervener at the end. The High Court Division copiously recorded the submissions of all the learned counsel, whatever was argued, in the impugned judgment. The most striking feature of this laboriously written long judgment which is bound to attract anybody's attention is the lengthy submissions made by almost all the learned Counsel including the learned Attorney General (except Khondker Mahbubuddin Ahmed and of course the Counsel of the appellants) to the effect that the Indemnity Ordinance, 1975 was itself a void legislation. The High Court Division found all the reasonings in support of the said submission to be acceptable and accordingly held:

"Considering the above, we hold that the Indemnity Ordinance No. 50 of 1975 is void under Articles 7(2) and 26(2) of the Constitution. As we are declaring this Ordinance No. 50 of 1975 void, it had and has no legal existence in the eye of the constitution on the very day when it was promulgated that is on 26.9.75 and now." At another place, however, the High Court Division held: "that the Indemnity Ordinance of 1975 was continuing as an existing law along with other laws, after withdrawal of martial law, being protected and saved within the terms "others laws" as constitution, and it is subject to judicial review of this court whenever it is challenged."

And finally the findings were summarized as follows:

It is held that both the writ petitions are maintainable in their present form. It is held that Indemnity (Repeal) Act, 1996 (Act No. 21 of 1996) is a valid piece of legislation and it is not ultra vires the Constitution. It is held that the Indemnity Ordinance. 1975 (Ordinance 50 of 1975) is void since it is repugnant to the Constitution. It is held that since the Indemnity Ordinance No. 50 of 1975 is ultra vires of the constitution and Indemnity (Repeal) Act No. 21 of 1996 does not offended and infringe any provision of the constitution, the prayers for declaring the institution of Dhanmnodi P.S Case No. 10(10)71996 and Lalbagh P.S Case No. 11(11)/ 1975 without lawful authority are illegal and hereby refused. It is found that the five out of six learned jurists of the Country (excepting Mr. Khondaker Mahbubuddin Ahmed) who assisted the court as Amicus Curiae, expressed their views that the Indemnity (Repeal) Act No. 21 of 1996 is a valid piece of legislation and the Indemnity Ordinance No. 50 of 1975 is void being ultra vires the Constitution. Submissions of the learned Attorney General and the views of the majority Amicus Curiae on the points of validity of the Indemnity (Repeal) Act No. 21 of 1996 and the repugnancy of the Indemnity Ordinance No. 50 of 1975 appear to be constitutionally and legally correct and as such the same are accepted.

13. The Rules issued in the writ petitions were accordingly discharged by the impugned judgment and order dated 28 January, 1997 but a certificate under article 103(2)(a) as prayed for by the writ petitioners was granted. Hence these appeals before us as of right.

14. We have noticed that a substantial part of the judgment of the High Court Division, rather the major part has been devoted to the consideration of the submission made on behalf of the Government and supported by all the Amicus Curiae except one that the Indemnity Ordinance, 1975 was a void legislation and the submission has been accepted. The Indemnity Ordinance has been declared void. Apart from the question of correctness and propriety of the decision, we have failed to understand why the vires of the said Ordinance was made the major issue for decision when none of parties came to the court seeking a declaration that the Ordinance was ultra vires. On the other hand, the question directly raised for consideration and decision by the writ petitioners was whether the Indemnity (Repeal) Act, 1996 was ultra vires. That was the only constitutional question for decision before the High Court Division.

15. For good or bad, the Act has repealed the Ordinance. Repeal of a law means its complete abrogation by the enactment of a subsequent statute. CRAIES on Statute Law (Seventy Edition) at P. 351 says:

“The effect of a repeal before 1890 without any express savings was thus stated by Tindal CJ in Kay V. Goodwin, where he said: "I take the effect of repealing a statute to be to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law". And in Surtees V Ellison, Lord Tenterden said: "It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed."

16. So the effect of repeal of a law is that as if it never existed and it is obliterated completely from the records of the Parliament except for the purpose of those actions which were taken under it. That being the position in law, the Indemnity Ordinance was not in existence after the passing of the Repeal Act and it was therefore unthinkable, in our opinion, to declare the Ordinance void which has not even in existence. It was, so to say, a contradiction in terms.

17. Then again why should the Government or anybody else consider itself or himself wiser than the Parliament? When the Parliament decided to repeal the Indemnity Ordinance, it must be presumed that the Parliament had recognised the Ordinance to be a valid and existing law. Otherwise there would have been no necessity for repealing the Ordinance. If the parliament considered the Ordinance to be void, it could have passed a declaratory legislation to that effect instead of repealing it. The learned Attorney General leading the argument that the Ordinance was void had unwittingly put the legislature, as it appears, to embarrassment in that the Repeal Act was proved to be unnecessary.

18. Then again the High Court Division having itself found that the Indemnity Ordinance was a continuing law after withdrawal of martial law being protected and saved under paragraphs 3A and 18 of the Fourth Schedule and further having itself noticed that despite the ouster of jurisdiction of Court it can consider the constitutional validity of any law only if the same is found to be made without jurisdiction, Coram non Judice or mala fide, it is not understood how the High Court Division could declare the Ordinance to be void on the ground that it was repugnant to the Constitution.

19. Except on grounds of jurisdiction etc. as above all laws made during the period between the 15 August, 1975 and the 9^th April, 1979 "Shall not be called in question in or before any court, tribunal or authority on any ground whatsoever" (Para 18). The High Court Division accepted this position and yet declared the Ordinance to be void without explaining as to how the bar of jurisdiction was overcome by it.

20. In any view of the matter, it appears that the finding made by the High Court Division which appears to be the main burden of its judgment, that the Indemnity Ordinance was void is an uncalled for, gratuitous finding and as such the same cannot be supported.

21. Now, we come to the real matter in issue, Mr. Korban Ali, learned Counsel for the appellants, has advanced several arguments before us as he did in the High Court Division in support of his proposition that the Act was ultra vires the constitution. The sheet anchor of his entire submission is and Mr. Korban Ali himself is conscious about it, that the Indemnity Ordinance, 1975 had become a part of the constitution by reason of paragraphs 3A and 18 of the Fourth Schedule and as such it could not be repealed by the Ordinary law making process. To undo the Ordinance, the learned Counsel submits that the said paragraphs required to be amended following the provision of Article 142 of the Constitution and that having not been done, the Act has become repugnant to the constitution and the passing of the Repeal Act as an ordinary law is therefore a colorable exercise of power.

22. To examine and appreciate the submission of the learned Counsel, the relevant laws are reproduced below for ready reference:

The Indemnity Ordinance, 1975 was published in the extraordinary Gazette on 26, September, 1975 which reads as follows:

GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
MINISTRY OF LAW, PARLIAMENTARY AFFAIRS AND JUSTICE
(Law and Parliamentary Affairs Division)
NOTIFICATION

Dacca, the 26^th September 1975. No. 692 Pub.

The following Ordinance made by the President of the People's Republic of Bangladesh, on the 26^mSeptember, 1975, is hereby published for general information:

THE INDEMNITY ORDINANCE, 1975 ORDINANCE NO. L OF 1975

AN ORDINANCE to restrict the taking of any legal or other proceedings in respect of certain acts or things done in connection with, or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of Marital Law on the morning of the 15th August, 1975.

WHEREAS it is expedient to restrict the taking of any legal or other proceedings in respect of certain acts or things in connection with or in preparation or execution of any plan for, or steps necessitating, the historical change and the proclamation of Martial law on the morning of the 15^th August, 1975;

AND WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render immediate action necessary;
NOW, THEREFORE, in pursuance of the Proclamation of the 20^th August, 1975, and in exercise of the powers conferred by clause (1) of article 93 of the Constitution of the People's Republic of Bangladesh, the President is pleased to make and promulgate the following Ordinance:-

1. Short title.- This Ordinance may be called the Indemnity Ordinance, 1975.

2. Restrictions on the taking of any legal or other proceedings against persons in respect of certain acts and things.- (1) Notwithstanding anything contained in any law, including a law relating to any defence service, for the time being in force, no suit, prosecution or other proceedings, legal or disciplinary shall lie, or be taken, in before or by any court, including the Supreme Court and" Court Martial, or other authority against any person, including a person who is or has, at any time, been subject to any law relating to any defence service, for or on account of or in respect of any act, matter or thing done or step taken by such person in connection with, or in preparation or execution of any plan for, or as necessary step toward, the change of Government of the People's Republic of Bangladesh and the Proclamation of martial Law on the morning of the 15^th August, 1975.

(2) For the purposes of this section, a certificate by the president, or any person authorised by him in this behalf, that any act, matter or thing was done or step taken by any person mentioned in the certificate in connection with, or in preparation or execution of any plan for, or as necessary step towards, the change of Government of the People's Republic of Bangladesh and the Proclamation of Martial Law on the morning of the 15th August, 1975, shall be sufficient evidence of such act, matter or thing having been done or step having been taken in connection with, or in preparation or execution of any plan for, or any necessary step towards, the change of such Government and the Proclamation of Martial Law on that morning.

KHANDAKER MOSHTAQUE AHMED
President
DACCA;
The 26^th September, 1975

23. Paragraph 3A was added to the Fourth Schedule of the Constitution by the Proclamation Order No. 1 of 1977 and amended by the Second Proclamation Order No. IV of 1978 and reads as follows:-

3A. (1) The Proclamations of the 20^thAugust, 1975, and 8^th November, 1975, and the Third Proclamation of the 29^th November, 1976, and all other Proclamations and Orders amending or supplementing them, hereinafter in this paragraph collectively referred to as the said Proclamations and all martial Law Regulations, Martial Law Orders and all other laws made during the period between the 15th day of August, 1975 and the date of revocation of the said Proclamations and the withdrawal of Martial Law (both days inclusive), hereinafter in this paragraph referred to as the said period, shall be deemed to have been validly made and shall not be called in question in or before any court or Tribunal on any ground whatsoever. (2) All orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by the President or the Chief Martial Law Administrator or by any other person or authority during the said period, in exercise or purported exercise of the powers derived from any of the said proclamations or any martial Law Regulation or martial Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court or authority in the exercise or purported exercise of such powers, shall be deemed to have been validly made, done or taken and shall not be called in question in or before any court, or Tribunal on any ground whatsoever. (3) No suit prosecution or other legal proceeding shall lie in any court or Tribunal against any person or authority for or on account of or in respect of any order made, act or thing done, or action or proceeding taken whether in the exercise or purported exercise of the powers referred to in sub paragraph (2) or in execution of or in compliance with orders made or sentences passed in exercise or purported exercise of such powers.
(4)..............
(5)..............
(6)..............
(7) All laws in force immediately before the revocation of the said prosecution and withdrawal of Martial Law shall, subject to the proclamation revoking the said proclamations and withdrawing the martial Law, continue in force until altered, amended or repealed by the competent authority.
(8).......................
(9).......................
(10) In this paragraph, 'law' includes ordinances, rules, regulations, bye laws, orders, notifications and other instruments having the force of law.

24. Paragraph 18 was added to the Fourth Schedule by the Constitution (Fifth Amendment) Act, 1979 (Act I of 1979) and reads as follows:

18. All Proclamation, Proclamation Orders, martial Law Regulations, Martial Law Orders and other laws made during the period between the 15^th August, 1975, and the 9^th April, 1979 (both days inclusive), all amendments, additions, modifications, substitutions and omissions made in this Constitution during the said period by any such Proclamation, all orders made, acts and things done, and actions and proceedings taken, or purported to have been made, done or taken, by any person or authority during the said period in exercise of the powers derived or purported to have been derived from any such Proclamation, Martial Law Regulation, martial Law Order or any other law, or in execution of or in compliance with any order made or sentence passed by any court, tribunal or authority in the exercise or purported exercise of such powers, are hereby ratified and confirmed and are declared to have been validity made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever.

25. The Indemnity (Repeal) Act, 1996 reads:

The Indemnity Ordinance, ১৯৭৫ এর রহিতকরণকল্পে প্রণীত আইন৷
যেহেতু The Indemnity Ordinance, ১৯৭৫ (Ordinance L of ১৯৭৫) রহিত করা সমীচীন ও প্রয়োজনীয়;
সেহেতু এতদ্‌দ্বারা নিম্নরূপ আইন করা হইল :-
১৷ সংক্ষিপ্ত শিরোনাম । এই আইন The Indemnity (Repeal) Act, 1996 নামে অভিহিত হইবে৷
২৷ Ord. L of 1975 এর রহিতকরণ । The Indemnity Ordinance, 1975 (L of 1975, যাহা XLX of 1975 নম্বরে মুদ্রিত), অতঃপর উক্ত Ordinance বলিয়া উল্লিখিত, এতদ্‌দ্বারা রহিত করা হইল৷
(২) এই আইন বলবত্ হইবার পূর্বে যে কোন সময় উক্ত Ordinance এর অধীন কৃত কোন কার্য, গৃহীত কোন ব্যবস্থা, প্রদত্ত কোন সার্টিফিকেট বা আদেশ-নির্দেশ অথবা অর্জিত কোন অধিকার বা সুযোগ-সুবিধা, অথবা সরকার বা কোন কর্তৃপক্ষের জন্য সৃষ্ট কোন দায়-দায়িত্ব, যদি থাকে, এর ক্ষেত্রে General Clauses Act, 1897 (X of 1897) এর Section 6 এর বিধানাবলী প্রযোজ্য হইবে না এবং উক্তরূপ কৃত কার্য, গৃহীত ব্যবস্থা, প্রদত্ত সার্টিফিকেট বা আদেশ-নির্দেশ বা অর্জিত অধিকার বা সুযোগ-সুবিধা বা সৃষ্ট দায়-দায়িত্ব উপ-ধারা (১) দ্বারা উক্ত Ordinance রহিতকরণের সংগে সংগে এইরূপে অকার্যকর, বাতিল ও বিলুপ্ত হইয়া যাইবে যেন উক্ত Ordinance জারী করা হয় নাই এবং উক্ত Ordinance এর কোন অস্তিত্ব ছিল না ও নাই৷

26. Mr. Korban Ali in building up his ultimate submission that the Indemnity Ordinance became a part of the Constitution argued relying on Dosso's case 11 DLR (SC) 1 that a new legal order came into force with the promulgation of martial law by Proclamation dated 20 August, 1975 made by Khandker Moshtaque Ahmed and the Constitution of the country was made subject to the Proclamation, Martial law Regulations etc. The Indemnity Ordinance was not only an ordinance made under the Constitution but it was something more than that as it was promulgated involving the supra-constitutional instrument of Proclamation dated 20 August, 1975. In paragraph 3A (1) of the Fourth Schedule, it has been provided that the Proclamation, Martial Law Regulations etc. and "all other laws" made during the period between the 15th August, 1975 and the date of revocation of the Proclamations etc. and withdrawal of martial law shall be deemed to have been validly made and shall not be called in question in or before any court or Tribunal on any ground whatsoever. By incorporating paragraph 18 all Proclamations etc. and "other laws" made during the said period have been ratified and confirmed and given the same protection as already given by paragraph 3A. Mr. Korban Ali submits citing Halima Khatun 30 DLR (AD) 207, Haji Joynal Abedin 32 DLR (AD) 110, Eheteshamuddin Iqbal 33 DLR (AD) 154 etc. that this court upheld the provisions of paragraphs 3A and 18 giving immunity to the acts and things done during martial law except in cases of Coram non Judice etc. Then Mr. Ali submits, which is most vital, that not only the Indemnity Ordinance has been saved and protected by paragraphs 3A and 18 but the protection given to the "acts and things done" there under which was also the purpose of the Ordinance, namely, putting restriction on legal proceedings in respect of certain "acts and things done" amounts to making the Ordinance a part of the Constitution. Therefore, without amending paragraphs 3A and 18 of the Fourth Schedule be recourse to article 142, the Ordinance could not be repealed by ordinary process as was done.

27. Let us start making the scrutiny of the submission of the learned Counsel in the reverse order. The last and the foremost argument is that the phrase "acts and things done" used in the Ordinance and Paragraphs 3A and 18 has the effect of making the Ordinance a part of the Constitution. We are far from impressed by the logic of the submission. The Indemnity Ordinance was promulgated to restrict the taking of any legal or other proceedings in respect of certain "acts and things done" prior to the promulgation of the Ordinance, that is those that were done in connection with, or in preparation or execution of any plan for, or steps necessitating, the historical change and the Proclamation of martial law on the morning of the 15^th August, 1975. On the other hand, the protection which has been given under paragraphs 3A and 18 to the 'acts and things done' relate to those that were done in exercise of the powers derived or purported to have been derived from any proclamation .......or "any other law".

They have been ratified and confirmed and are declared to have been validly made, done or taken and shall not be called in question in or before any court, tribunal or authority on any ground whatsoever. Evidently, the acts and things which were done on the 15^th August, 1975 to which indemnity was sought to be given by the Indemnity Ordinance were not done in exercise of the powers derived or purported to have been derived from the said ordinance.
Therefore, they have no nexus with the "acts and things done" referred to in paragraphs 3A and 18.

28. It has been argued that the Indemnity Ordinance has been promulgated under the Proclamation of 20^th August, 1975, paragraphs 3A and 18 have declared its validity and immunity from challenge on any ground whatsoever and further it has been ratified and confirmed in paragraph 18 by the Constitution (Fifth Amendment) Act, 1979. The ordinance has thus been grafted in the Constitution itself. It cannot be repealed by an ordinary law.

29. Again we are far from convinced by the reasons in support of the submission. There is no dispute that the Ordinance, has not been made a part of the constitution expressly. There was no difficulty for the Parliament to incorporate it in the Constitution if it so intended. Now attempt is being made to show that the Ordinance has impliedly become a part of the constitution. As a general principle, nothing should be read or found in the country's Constitution which is the embodiment of the will of the people of Bangladesh by way of inference and that also for defending a law which is against all norms that the Constitution stands for.

30. The Indemnity Ordinance was expressly made by the President in exercise of the powers conferred by clause (1) of article 93 of the Constitution. That the Proclamation of 20^thAugust, 1975 was also invoked in enacting the said Ordinance makes no difference because Khandker Moshtaque Ahmed, the author of the Proclamation, whatever else he could do, could not issue an Ordinance under the said Proclamation. The ordinance was made by him wearing a different cap, that of the President under the Constitution. So there was no extra magic in the Indemnity Ordinance which in normal times was required to be laid before the Parliament for its survival. All that is conferred upon the Indemnity Ordinance by paragraphs 3A and 18 is the stamp of validity and immunity from challenge. Paragraph 18 goes further to ratify and confirm the said Ordinance. "Ratify" means, according to the Black's law Dictionary, "to approve and sanction, to make valid, to confirm". It all means that the Constitution proclaims that the Indemnity Ordinance was validly made and shall not be questioned on any ground whatsoever. That is the mandate of the Constitution and no further. To say that the Ordinance has become a part of the Constitution attracting article 142 for its repeal is to read something which is clearly not there. The subsidiary argument that without necessary amendment of paragraphs 3A and 18, the Ordinance could not be repealed is also equally untenable. The heart of the argument seems to be that since approval was given to the Ordinance by a process of amendment of the constitution, the same process is required to be gone through for its repeal. We do not agree to the proposition. To give approval to a law is a qualitatively different act from enacting the law itself. An Ordinance when approved in the constitution remains an Ordinance, it does not become a part of the constitution.

31. Clause (7) of paragraph 3A may be seen in this connection which is quite significant. It says all laws in force, (Ordinance is also law (clause 10), immediately before ....the withdrawal of martial law shall..............continue in force until altered, amended or repealed by the competent authority. So the power is given to the competent authority to deal with the law as it likes. There is no mandate anywhere that the Fourth Schedule has to be amended suitably to bring about any change in the law.

32. The respondents in their affidavit in opposition have given a list of Ordinances of the same period which have been subsequently repealed by Ordinances or by usual Act of Parliament. The repeal of the Indemnity Ordinance was therefore not an exception but was done in the usual legislative process. The relevant paragraph of the affidavit in opposition which also contains the gist of the respondents' contention which we find to be correct is reproduced below. This all also answer appellant's argument that the repeal Act was passed in colorable exercise of power. The said paragraph reads:

That it is submitted that no provision of the Constitution had made the Indemnity Ordinance, 1975 a part of the constitution, it is also submitted that the paragraph 3A and 18 of the fourth schedule to the constitution has not curtailed the power of parliament to repeal any act of parliament or Ordinance made during the period between the 20^th August, 1975 and the 9^th April, 1979. Besides, the Parliament possess legislative power under article 65 of the constitution and the power of parliament to repeal laws and ordinance has been recognised by Article 149 of the constitution. In this connection, it may be stated that several Ordinance made between the 20^th August, 1975 and the 9th April, 1979 have been repealed by Ordinance or by Act of parliament. Some instances are given below: -

(i) Industrial Relations (Regulation) Ordinance, 1975 was repealed by Act XXIX of 1980, Section 17;
(ii) Khulna Division Development Board Ordinance, 1979 was repealed by Ordinance, No. XLVI of 1986, Section 2;
(iii) Rajshahi Division Development Board Ordinance, 1979 was repealed by Ordinance No. XLVI of 1986, Section 2;
(iv) Dhaka Division Development Board Ordinance, 1979 was repealed by Ordinance No. XLVI of 1986, Section 2;
(v) Electoral Rolls Ordinance, 1979 was repealed by Section 18, Ordinance No. LXI of 1982;
(vi) Bangladesh Railways Board Ordinance, 1979 was repealed by Ordinance No. XXIV of 1983, Section-2;
(vii) Off shore Island Development Board Ordinance, 1977 was repealed by Ordinance No. XXXVIII of 1982, Section-3(e)
(viii) Haor Development Board Ordinance, 1977 was repealed by Ordinance No. XXXVIII of 1982, Section -3(e);
(ix) Environment Pollution Control Ordinance, 1977 was repealed by Act I of 1985, Section-21;
(x) Bangladesh Standards Institution Ordinances, 1977 was repealed by Ordinance No. XXXVII of 1985, Section 38;
(xi) Presidential Election Ordinance, 1978 was repealed by Act XXVII of 1991, Section-13;
(xii) State Owned Manufacturing Industries Workers (Terms and Conditions of Service) Ordinance, 1979 was repealed by Ordinance XXXIX of 1985, Section 6.

33. At this stage, we think it is time that we quote from the High Court Division judgment where this subject has been dealt with. This part, in our opinion, is the most relevant and soundest in an otherwise prolix judgment. The views expressed by us above are confirmations of what is now quoted below:

According to Mr. Korban Ali and Mr. Khondaker Mahbubuddin Ahmed this Ordinance was made a part of the Constitution by paragraph 3A and 18 of the 4th schedule of the Constitution. But it appears that neither the 4^th schedule nor any other provision of the constitution provides that this Indemnity Ordinance, No. 50 of 1975 should be treated as a part of the constitution. Rather by paragraph 3A and 11 of the 4th schedule of constitution was protected and continued as existing law in the category of other Laws which were promulgated in between the period from 15th August, 1975 an 9th April, 1979. Since it was an ordinary piece of legislation being same protected and continued under paragraphs 3A and 18 of the 4th schedule of the Constitution. It can be amended or repealed by simple majority members of the parliament.

In paragraph 3a (7) of the 4th schedule of the Constitution a clear provision has been laid down to the effect that all laws made during the period from 15-8-75 to 9-4-79 were protected, but the same can be amended, altered and repealed by the authority. It means, the Parliament is the actual authority for repealing of law. Nowhere in the 4th schedule or in any other provision of the Constitution it was stipulated that the laws which were continued and saved under paragraph 3 A and 18 of the 4th schedule of the Constitution would require two third majority members of the Parliament for necessary amendment or alteration or repeal. Since there was no provision like that, we cannot import such a provision and as such we hold that the Indemnity Ordinance No. 50 of 1975 can be amended or altered or repealed by simple majority members of the parliament and two third majority of the members of the Parliament was not at all required for the same. The learned Attorney General as well as other five learned Amicus curiae expressed their views that this Indemnity (Repeal) Act, 1996 has been legally passed by a simple majority members of the Parliament and to pass such all law, two-third majority of the members of the Parliament was not at all necessary.

34. The next important submission of Mr. Korban Ali is that even if it is conceded for argument's sake that the Indemnity Ordinance was validly repealed, the starting of the criminal cases against the appellants for the occurrences of the 15 August, 1975 was unlawful because notwithstanding the repeal of the Ordinance, the rights and privileges which had accrued to them under the said ordinance would remain unaffected. Evidently, this argument is based upon section 6 of the General Clauses Act, 1897. It is true that a repealing Act does not affect any right, privilege which is acquired under the repealed enactment but there is an overriding condition and that is, s provided in section 6 itself, that "unless a different intention appears". The different intention in the present case has been abundantly clear in section 2 of the Act. Therefore, although it was a question of fact whether the appellants could at all claim protection of the Ordinance for the alleged acts attributed to them, the legislature has completely sealed that chapter by expressly nullifying everything under the repealed Ordinance.

35. The other submissions made by Mr. Korban Ali, he has himself realized, have neither much force nor carry any conviction. For example, he has submitted that the Act is an ex post facto legislation which offends Article 35(1) of the Constitution. The question does not arise because the Act has not made anything punishable which was not so punishable when the alleged acts were committed. Then he has argued that the Act was passed mala fide because the party in power now never raised question in previous Parliaments for repealing the Indemnity Ordinance but with the recent change of Government immediate step was taken maliciously to nullify the protection so long enjoyed by the appellants under the Ordinance.

36. It is not permissible for the court of impute malice to the legislature in making laws which is its plenary power. As long as the laws passed by it do not offend any provision of the constitution, the Court cannot strike them down on any other ground. On the subject of Inquiry into legislative motives, Colley in his “A treatise on the Constitutional Limitations” at page 186 says:

From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished, and them mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions. If so, the courts are not at liberty to inquire into the proper exercise of the power in any case. They must assume that legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding. And although it has sometimes been urged at the bar, that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegation were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.

37. Mr. Korban Ali raised the question of mala fide also because the criminal cases were stated even before the repeal of the Indemnity Ordinance. It has been noticed that in such matters what is of importance is the authority to act and not with what motive the action is taken. It could not be said that the alleged bar under the Indemnity Ordinance was attracted automatically as soon as the FIR was lodged, It has/had to the pleaded at some stage. Since the Ordinance has already been repealed, the bar does no longer operator and no question of mala fide can be raised in opposition to the proceedings.

In view of discussion above, these appeals cannot succeed and are accordingly dismissed without any order as to costs.

Ed.

Shaid Hamid and another Vs. Nilufar Momtaz and others

Case No: Civil Petitioner for Leave to Appeal No. 888 of 2008.

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Abul Kalam Mainuddin ,,

Citation: 15 MLR (AD) (2010) 130

Case Year: 2010

Appellant: Shaid Hamid and another

Respondent: Nilufar Momtaz and others

Subject: Constitutional Law,

Delivery Date: 2009-03-25

Shaid Hamid and another Vs. Nilufar Momtaz and others
15 MLR (AD) (2010) 130

Supreme Court
Appellate Division
(Civil)

Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J

Shaid Hamid and another………………………..Petitioners
Vs.
Nilufar Momtaz and others...................Respondents

Judgment
March 25, 2009.

Constitution of Bangladesh, 1972
Article 102

The respondent No. 5 informed the petitioner that the question of title of the disputed flat can be decided by the competent civil court. In the meantime the respondent No.6 issued a letter to the petitioner to vacate the disputed flat. The High Court Division as well as the Appellate Division held the impugned letter asking to vacate the flat illegal and passed without any lawful authority.

It appears from the record that writ-respondent No.5, Military Estate Officer already expressed by his letter dated 26.02.2006 that he could not prove or decide the title of the parties in the flat and he asked the parties to settle their disputes in Civil Court. Thus, from their own letter it is apparent that the question of title is now to be settled by a Court of competent jurisdiction, hence how the writ-respondent No.6 Cantonment Executive Officer could issue the impugned letter asking the writ-petitioner to vacate the flat is not understood. In such situation, after rejection of the plaint, the writ-petitioner had no efficacious remedy to protect her possession in the flat and accordingly, she had to move the High Court Division and obtained the Rule. The High Court Division held that in the circumstance, writ petition cannot be said to be not maintainable in order to determine the legality of the impugned letter dated 06.06.2006. For the reasons aforesaid, the impugned letter dated 06.06.2006 must be held to have been issued in excess of the powers of the writ-respondent No.6 and therefore, cannot be sustained in law and accordingly, declared to have been issued without any lawful authority and of no legal effect. ..(6)

Lawyers Involved:
Rafique-ul Huq, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record- For the Petitioners.
Abul Kalam Mainuddin, Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record- For Respondent No.1.
Not represented- Respondent Nos. 2-9.

Civil Petitioner for Leave to Appeal No. 888 of 2008.
(From the judgment and order dated the 6th day of August, 2008 passed by the High Court Division in Writ Petition No.5291 of 2006).

Judgment

Mohammad Fazlul Karim J.- This Petition for Leave to Appeal is directed against the judgment and order elated 09,08.2008 passed by the High Court Division in Writ Petition No.5291 of 2006 making the Rule absolute.

2. The facts of the case, in short, are that the respondent No.1 and the petitioner, Shaid Hamid, were married on 19.02.1999. During the subsistence of marriage, petitioner on 11.03.2005 made oral gift of flat A-4(4th Floor) of House No.188, Road No.2 at DOHS at Mohakhali in Dhaka in favour of the respondent No.1 and on 21.03.2005 also made a declaration on such oral gift, which was duly notarized. The present petitioner handed over possession of the flat to the respondent No.1 on the date of gift. Having accepted the gift, the respondent No.1 possessed the same. The respondent No.1 then rented out the flat to one Rezanul Kabir by a monthly deed of agreement executed on 01.04.2005. Thereafter, the present petitioner on 30.04.2005 made an application to the office of respondent No.6, the Military Estate Officer, for mutation of the flat in the name of the respondent No.1. The Respondent No.1 also on the same date made an application for mutation of the said flat on the basis of gift in her name.

3. Upon receipt of the application, respondent No.6 wrote a letter asking the petitioner for furnishing certain information to which the petitioner did not respond. On 16.02.2006 the respondent No.1 filed another application for mutation. Thereafter, the said respondent No.6 by his letter dated 26.02.2006 informed the respondent No.1, inter alia, that as there was existence of two gifts of the same property and an affidavit was filed canceling the gift in faovur of the respondent No.1 that in view of the objection of the donor and that in the absence of proof of absolute title thereon, it was not possible to order mutation. The office has got no jurisdiction to prove or declare title of the demised property which is a matter of decision by a Civil Court. On 07.04.2006 both the respondent No.2 and the petitioner appeared for counseling before the president of the reconciliation committee, who, however, expressed his opinion in their presence, evidenced by a letter issued in the month of April, 2006, that reconciliation for restoration of the family life failed and they were requested to settle their disputes in the family Court. He also asked to settle their dispute over the flat in Court. He, however, requested them to maintain law and order in Mohakhali DOHS area and take care to see that no unpleasant occurrence should take place. Then, the respondent No.1 on 02.07.2006 was constrained to institute Title Suit No.10 of 2006 in the 2nd Court of Joint District Judge at Dhaka for declaration of her title in the flat and also obtained an ad interim order for maintaining status quo pending disposal of the suit.

4. The present petitioner contested the suit by filing affidavit-in-opposition stating, inter alia, that he already gifted the aforesaid flat by virtue of a notarized affidavit dated 24 February, 2005 to his only daughter respondent No.9, Shahreen Shahid. He found the document of oral gift in favour of the respondent No.1 from the Military Executive Officer, which was false. He cancelled the said gift by an affidavit dated 5th January, 2006. He informed respondent No.7 that he already divorced the respondent No.1 and also requested him to mutate the flat in faovur of respondent No.9.

5. Mr. Rafique-ul Huq, learned Counsel, appearing for the petitioner submitted that the writ-respondent No.8 having made a gift of the flat on 24.02.2005 in favour of his only daughter, the alleged oral gift of the same flat on a later date on 11.03.2005 by the writ-respondent No.8 in favour of the writ-petitioner was invalid and did not create any right, title or interest of the writ-petitioner in the said flat and hence, the writ petitioner not having any legal right the writ petition is not maintainable; that the writ petition having involved a disputed questions of fact and of title as to whether there was a gift of the flat in question in faovur of the writ respondent No.9 the writ-respondent No.8 and whether writ-respondent No.9 or writ-petitioner has, the title to the said flat, the questions involved cannot be decided in a summary proceeding under writ jurisdiction; that there having been a gift by writ-respondent No.8 in faovur of his daughter earlier in point of time, which was acted upon, the alleged oral gift in favour of his wife on 21.03.2005 which is later on point of time did not confer any right on the writ-petitioner in respect of the case flat and hence the writ-petitioner has no right to protect her possession in the case flat in the absence of declaration of her title by a competent Court of law and as such, the impugned letter dated 06.06.2006 issued by the writ respondent No.6 directing the writ-petitioner to vacate the case flat was issued with lawful authority; that according to Annexure-2(b) of the affidavit-in-opposition filed by the writ-respondent No.8 he is the owner of the suit property and being a citizen of Bangladesh he has constitutional right to protect his property by contesting in the writ petition; that according to the observation of the High Court Division the owner of the suit property is writ-respondent No.9, daughter of the writ-respondent No.8 who is a minor girl who has been staying abroad for her studies and the writ-respondent No.8 being the natural guardian of writ-respondent No.9 has legal right to protect his daughter's property and as such, the impugned judgment and order dated 07.08.2008 passed by the High Court Division and the cost imposed against the writ-respondent No.8 by the High Court Division are not sustainable in law. The learned Counsel further submitted that the High Court Division wrongly observed that 'which empowers or authorizes respondent No.6 to issue the kind of letter dated 19.03.2006 or the other impugned letter dated 06.06.2006' though the writ-respondent No.6 is lawfully empowered by the Government through a notification vide Memo. No. Shama/Ja-4/29/2001-190 dated 31.04.2003 of the affidavit-in-opposition filed by the writ-respondent No.8 and that the writ-respondent No.6 wrote a letter on 19.03.2006 to the writ-respondent No.8 and informed him that both the oral gift cannot be sustained in law and the writ-petitioner never raised any objection anywhere and did not challenge in the Court of law and according to Section 53 of the Arbitration Act the writ petition is not sustainable in law and the impugned letter dated 06.06.2006 is the continuation process of the Conciliation Committee and as such, the judgment and order dated 078.08.2008 making the Rule absolute and imposing cost on the writ-respondent No.8 is liable to be set aside for the ends of justice.

6. It appears from the record that writ-respondent No.5, Military Estate Officer already expressed by his letter dated 26.02.2006 that he could not prove or decide the title of the parties in the flat and he asked the parties to settle their disputes in Civil Court. Thus, from their own letter it is apparent that the question of title is now to be settled by a Court of competent jurisdiction, hence how the writ-respondent No.6 Cantonment Executive Officer could issue the impugned letter asking the writ-petitioner to vacate the flat is not understood. In such situation, after rejection of the plaint, the writ-petitioner had no efficacious remedy to protect her possession in the flat and accordingly, she had to move the High Court Division and obtained the Rule. The High Court Division held that in the circumstance, writ petition cannot be said to be not maintainable in order to determine the legality of the impugned letter dated 06.06.2006. For the reasons aforesaid, the impugned letter dated 06.06.2006 must be held to have been issued in excess of the powers of the writ-respondent No.6 and therefore, cannot be sustained in law and accordingly, declared to have been issued without any lawful authority and of no legal effect.
In view of the above, we find no substance in the submissions of the learned Advocate for the petitioner.
Accordingly, the petition is dismissed.
Ed.

Shaikh Md. Asad Hossain Vs. Maulana Md. Abdur Razzaque Chisty

Case No: Civil Appeal No. 20 of 1999

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Shaikh Razzaque Ali,,

Citation: IV ADC (2007) 952

Case Year: 2007

Appellant: Shaikh Md. Asad Hossain

Respondent: Maulana Md. Abdur Razzaque Chisty

Subject: Property Law,

Delivery Date: 2005-08-26

Shaikh Md. Asad Hossain Vs. Maulana Md. Abdur Razzaque Chisty
IV ADC (2007) 952

Supreme Court
Appellate Division
(Civil)

Present:
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J

Shaikh Md. Asad Hossain...........Appellant
Vs.
Maulana Md. Abdur Razzaque Chisty being dead his heirs: 1. Mommat Hasina Begum and others...........Respondents

Judgment
August 26, 2005.

"In this case the defendant-petitioner in support of his contention filed his basic document i.e. the registered patta dated 22-06-1931 marked as Exhibit-'A' and also the trust deed dated 30-5-1932 as Exhibit A/1, showing that the property was taken by Fazlul Karim from the original owner Kalidash Mukharjee through registered patta and there after the same was permanently dedicated by creating trust. Thus, the defendant prayed his title by these two exhibited documents namely Exhibit-A and A/1. These two registered documents being about 60 years of old before filing the suit have got presumption of correctness but the courts below failed to consider this aspect. On the other hand, the plaintiff could not produce any document both oral and documentary challenging the legality of these two documents Exhibit-A and A/1. The Courts below failed to consider that in a suit for permanent injuction, the plaintiff must prove his prima-faice title in the suit land and the plaintiff must be in possession of the suit land but in this case the plaintiff neither could prove his prima-facie title nor possession in the suit land. Thereafter, the suit ought to have been dismissed by the Courts below." … (8)

It is settled law that the plaintiff must prove his case to the effect that he purchased the suit land from Alizan who got the land on the basis of lease taken from the Government though the record of right have been made in the name of the Government is the S.A. record. But the correctness of the S.A. record is under challege by the defendant in Title Suit No. 26 of 1985. Therefore, we find that the plaintiff-respondent failed to establish his prima-faice title and possession in the suit land and such both the courts below committed an error of law resulting in an error in their decisions causing failure of justice. … (9)

Lawyers Involved:
Shaikh Razzaque Ali, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record - For the Appellant.
Md. Nawab Ali, Advcate-on-Record - For Respondent No. 1 (a).
Not represented - Respondent Nos. 1(b) to 1(i).

Civil Appeal No. 20 of 1999.
(From the Judgment and Order dated 10-06-1997 passed by the High Court Division in Civil Revision No. 376 of 1999).

Judgment

Syed J. R. Mudassir Husain CJ. - This appeal by leave is directed against the judgment and order dated 10-06-1997 by a Single Bench of the High Court Division in Civil Revision No. 376 of 1991 making the Rule absolute by setting aside the judgment and decree dated 20-09-1999 passed in Title Appeal No. 244 of 1989 by the learned Subordinate Judge (Artha Rin Adalat), Jessore, who affirmed those dated 20-07-1989 passed by the learned Assistant Judge, Jessore in Title Suit No. 195 of 1986 decreeing the same.

2. The appellant herein as the plaintiff instituted above title suit for permanent injunction against the respondent in the 3rd Court of Munsif, Jessore, in respect of the suit land restraining the respondent from disturbing the appellant therefore or interfering in any way with the peaceful possession of the appellant therein. The case of the appellant was that the land in suit was government khas land. And government granted long term lease of the same to one Alizan on 17-08-1960, who was in possession therein by constructing homestead. Alizan on obtaining permission in writing from the Government transferred the suit land to the appellant by a registered kabala dated 17-03-1985. Subsequently, the appellant mutated his name in the records of right and had been in peaceful possession by constructing house in the land in suit and also paid rent to contiguous east of the suit land there was a standing house of the respondent. The respondent with the help of some unruly persons on 13-06-1986 attempted to dispossess the appellant from the land in suit. Although the attempt was unsuccessful due to intervention of the local people yet the respondent continued to threat to dispossess the petitioner from the land.

3. Respondent contested the suit by filing a written statement denying the material allegations made by the petitioner. His case was that the suit was barred by limitation and was bad for defect of parties. His further case was that the suit property orginally belonged to Kalidas Mukherjee and C.S. khatian No. 82 stood in his name. Kalidas Mukherjee transferred the land to Mirza Fazlul Karim by a patta dated 22-06-1931. Fazlul Karim by a deed of trust dated 30-05-1932 created a trust in respect of .03 l/2 acre of the land of Plot No. 106 and .22 decimals of C.S. Plot No. 105 of Mouja Jessore. On the trust land a Lilla boarding, an Orphanage and a Muslim Library and a Madrasha were also established. And respondent is running the same. As the trust land was illegally recorded in the name of the Government, the respondent filed Suit No. 26 of 1985 for correction of the record, which is pending. The respondent's futher case was that the petitioner neither had title nor possession in the land in suit.

4. Leave was granted to consider the following ground:
"Because the learned Single Judge of the High Court Division erred in law in reversing the concurrent findings of the learned trial Court as well as the appellate Court, based on due consideration of the evidence on record and free from any error of law occasioning a failure of justice."

5. Mr. Shaikh Razzaque Ali, the learned counsel appearing the for appellant, having raised the only point as noted above, argued that the learned Single Judge of the High Court Division erred in law in reversing the concurrent finding of the learned trial Court as well as the appellate Court based on the consideration of evidence on record and free from any error of law occasioning failure of justice.

6. In elaborating his above point, the learned Counsel further argued that the High Court Division in revisional jurisdiction failed to exercise its discretionary power in not considering that the findings and decisions arrived at by the lower appellate Court as a final Court are binding upon the High Court Division in the absence of any misreading of evidence and misconstruction of any documentary evidence and as such the High Coujt Division committed an error of law in setting aside the judgment and decree of Courts below on concurrent findings of fact.

7. Mr. Nawab Ali, the learned Advocate-on-Record, appearing for the respondent No.1 (a), on the other hand, contended that the suit land recorded in C.S. khatian No. 82 originally belonged to Kalidas Mukherjee while he was in possessing having had the right, title interest transferred the same by a registered patta dated 22-06-1931 in favour of Mirza Fazlul Karim, who later on established a Trust namely 'Muslim Trust' by registered trust deed dated 30-05-1932 in respect of 3½ decimals of land of C.S. Plot No. 106 and 22 decimals of C.S. Plot No. 105 of Mouza-Jessore wherein the said Fazlul Karim established a Lillah Boarding, an Orphanage and a Muslim Library in the suit land. Subsequently, the Madrasha was also established therein. He further pointed out the suit land has been recorded in S.A. Plot No. 105 under Khatian No.1 in the name of Government of which the defendant-respondents already filed Title Suit No. 26 of 1985 for correction of his alleged wrong record. Mr. Nawab Ali has, however, empathically argued that the aforesaid two registered deeds clearly proved that the defendant-respondent is very much in possession of the suit land and for wrong record, he has already filed the above-mentioned Title Suit for correction of said record in the name of the Government. In the aforesaid facts and circumstances of the case, the plaintiff could neither challenge the aforesaid two registered deeds by properly framed suit in any Court of law, rather possession was very much in favour of said Fazlul Karim. He submits that the High Court Division having considered the registered documents as well as other evidence on record rightly set aside the impugned judgments and decrees of the Courts below.

8. We have perused the impugned judgment of the High Court Division as well as the judgments of the Courts below. Having regard to the facts, circumstances and evidence on record, we are of the view that the learned Single Judge of the High Court Division having applied its judicial mind came to following findings:
"In this case the defendant-petitioner in support of his contention filed his basic document i.e. the registered patta dated 22-06-1931 marked as Exhibit-'A' and also the trust deed dated 30-5-1932 as Exhibit A/1, showing that the property was taken by Fazlul Karim from the original owner Kalidash Mukharjee through registered patta and there after the same was permanently dedicated by creating trust. Thus, the defendant prayed his title by these two exhibited documents namely Exhibit-A and A/1. These two registered documents being about 60 years of old before filing the suit have got presumption of correctness but the courts below failed to consider this aspect. On the other hand, the plaintiff could not produce any document both oral and documentary challenging the legality of these two documents Exhibit-A and A/1. The Courts below failed to consider that in a suit for permanent injuction, the plaintiff must prove his prima-faice title in the suit land and the plaintiff must be in possession of the suit land but in this case the plaintiff neither could prove his prima-facie title nor possession in the suit land. Thereafter, the suit ought to have been dismissed by the Courts below."

9. It is settled law that the plaintiff must prove his case to the effect that he purchased the suit land from Alizan who got the land on the basis of lease taken from the Government though the record of right have been made in the name of the Government is the S.A. record. But the correctness of the S.A. record is under challege by the defendant in Title Suit No. 26 of 1985. Therefore, we find that the plaintiff-respondent failed to establish his prima-faice title and possession in the suit land and such both the courts below committed an error of law resulting in an error in their decisions causing failure of justice.
10. In consideration of the facts and circumstances, we are of the view that the learned Single Judge committed no illegality in passing the impugned judgment. We are fully in agreement with the findings and decisions arrived at by the High Court Division. In the result, we find no merit in this appeal. Accordingly, this appeal is dismissed without any order as to cost.
Ed.

Shaikh Mustainul Haque Vs. Inspector General of Police and others

Case No: Civil Appeal No.85 of 1993

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Md. Awlad Ali,M Shamsul Alam ,,

Citation: 47 DLR (AD) (1995) 157

Case Year: 1995

Appellant: Shaikh Mustainul Haque

Respondent: Inspector General of Police and others

Subject: Administrative Law,

Delivery Date: 1995-6-14

Shaikh Mustainul Haque

Vs.

Inspector General of Police and others, 1995,

47 DLR (AD) (1995) 157

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Muhammad Abdur Rouf J
Mohammad Ismailuddin Sarker J

Shaikh Mustainul Haque.......................................Petitioner‑Appellant

Vs.

Inspector General of Police and others...................Respondents*

Judgment
June 14th, 1995.

Administrative Tribunal Act (VII of 1981)
Section 4(2)

Police Officers (Special Provisions) Ordinance (LXXXIV of 1976)
Section 7A
The Administrative Appellate Tribunal was therefore patently wrong in holding that the limitation could not be counted from 14.9.1989 when the Secretary, Ministry of Home Affairs rejected the appellant’s application preferred against the appellate order passed by the Inspector General of Police on 21.10.1988. It seems that the Appellate Tribunal being unaware of the aforesaid Ordinances and under some misconception of the provisos above committed error in deciding the point of limitation.

Lawyers Involved:
Awlad Ali, Advocate, instructed by Md. Sajjadul Huq, Advocate‑on‑Record ‑ For the Petitioners.
M Shamsul Alam, Deputy Attorney General, instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Respondents.

Civil Appeal No.85 of 1993.
(From judgment and order dated 28th February, 1993 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.62 of 1993).

Judgment:

                  ATM Afzal CJ: This appeal by leave is from judgment and order dated 28 February, 1993 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.62 of 1992 setting aside those dated 11 August 1992 passed by the Administrative Tribunal, Dhaka in AT Case No. 328 of 1989.

2. Appellant, a Sub‑Inspector of Police, while on leave preparatory to retirement was dismissed from service, following a departmental enquiry, by order dated 2.8.1988 passed by the Deputy Inspector General of Police. Khu1na Range, respondent No.3. He filed an appeal against the said order of dismissal which was dismissed by the Inspector General of Police, respondent No. 1 by order dated 21 October 1988. The appellant then filed an application on 1.11.1988 to the Secretary, Ministry of Home Affairs, respondent No.2 but it was rejected by an order dated 14.9.1989 and within 6 months thereof the appellant filed a case. No.328 of 1989, before the Administrative Tribunal. Dhaka under section 4 (1) of the Administrative Tribunal Act 1980, briefly, the Act, impugning the said order of dismissal.

3. The Tribunal after hearing the parties allowed the case and set aside the order of dismissal by its judgment and order dated 11.8.1992 holding, inter alia, relying on the case of SA Ali vs. Secretary Establishment reported in 31 DLR (AD) 256, that the appellant having already gone on LPR he was no longer in the service of the Republic and, as such, the impugned proceeding could not be drawn up against him legally. He was found entitled to all pensionary benefits under the Rules.

4. An appeal, being No.62 of 1992, was taken by respondent No. 1 against the said judgment and order and the Administrative Appellate Tribunal, as already noticed, set them aside by the impugned judgment and order only on the ground that the case before the Tribunal was itself barred by limitation in that it was not filed within 6 months from the appellate order (21.10.1988) observing further that under section 4(2) of the Act only one appeal is provided.

5. Leave was granted to consider the submission that the Administrative Appellate Tribunal was wrong in counting the period of limitation from the date of the appellate order (21.10.1988) and not from the date (14.9.1989) when the Government rejected the application of the appellant being under a misconception of the provisions of section 4(2) of the Act and further being unaware of the provisions of the Police Officers (Special Provisions) Ordinance
1976 (Ordinance No.LXXXIV of 1976) as amended by the Public Officers (Special Provisions) Ordinance, 1982 (Ordinance No.XXII of 1982).

6. It is not disputed that the appellant filed his case before the Administrative Tribunal on 28.11.1989, that is, within 6 months from the order of the Government dated 14.9.1989.

7. Mr. Awlad Ali, learned Advocate for the Appellant, produced the aforesaid Ordinances from which it appears that under section 7 of the Ordinance of 1976 an appeal is provided against an order of punishment imposed under section 6. It is not disputed that in the present case an appeal lay to the Inspector General of Police which was dismissed by order dated 21.10.1988. The Ordinance as amended in 1982 by section 4 provides as follows:
             "4. Insertion of new section 7A Ord. LXXXIV of 1976‑In the said Ordinance, after section 7, the following new section shall be inserted, namely:
            "7A. Revision and review—Notwithstanding anything contained in section 7, the Government may, upon an application made to it by an aggrieved police‑officer or on its own motion, within one month from the date of making of a decision by an appellate authority under that section.
              (a) revise such decision, if made by an appellate authority other than the Government.
             (b) review such decision if made by it as an appellate authority."

8. From the aforesaid provision it is clear that the appellant was entitled to file a revision to the Government against the appellate order within one month thereof which he had actually done on 1. 11. 1988. Admittedly the Government rejected his prayer by order dated 14.9.1989 and within 6 months thereof he filed an application under section 4(l) of the Act before the Tribunal.

9. The two provisos under section 4(2) of the Act read as follows:
          "Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter.
            Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be".

10. The Appellate Tribunal clearly misread the aforesaid provisions in holding that section 4(2) of the Act envisages only one appeal to the higher administrative authority and thus misled itself in holding further that the appellant having filed a second appeal to the Government which was dismissed on 14.9.1989, the relevant date for counting limitation would be 21.10.1988 when the Inspector General of Police dismissed the appeal and not from the date when the Government dismissed, the appeal on 14.9.1989.

11. In the first place, the provisos do not specifically mention about any appeal but only provides that no application can be made to the Administrative Tribunal "until such higher authority has taken a decision on the matter" and an application shall not be entertained by the Administrative Tribunal if it is not made within 6 months from the date of "making of the decision on the matter by the higher administrative authority".

12. There are different provisions under different laws under which an order, decision, etc. may be set aside, varied or modified by a higher administrative authority and an application to the Administrative Tribunal cannot be made so long such higher authority has not taken a decision on the matter. In the present case not only an appeal is provided under section 7 of the Ordinance of 1976 but also a revision from the appellate order lies to the Government under section 7A of the Ordinance as amended in 1982. Therefore the appellant could not go to the Tribunal unless the Government took a decision in the matter which was evidently in the exercise of its revisional power under section 7A. The Administrative Appellate Tribunal was therefore patently wrong in holding that the limitation could not be counted from 14.9.1989 when the Secretary, Ministry of Home Affairs rejected the appellant's application preferred against the appellate order passed by the Inspector General of Police on 21.10.1988. It seems that the Appellate Tribunal being unaware of the aforesaid Ordinances and under some misconception of the provisos above committed error in deciding the point of limitation.

13. Mr. M Shamsul Alam, learned Deputy Attorney‑General appearing for the respondents, conceded that the view taken by the Appellate Tribunal as to limitation cannot be supported. He, however, prayed that the matter be sent on remand to the Appellate Tribunal for hearing on the merit.

14. It has been found out during the submission of the learned Deputy Attorney‑General that no concise statement has been filed on behalf of the respondents although it is an old appeal. Under the Rules, therefore, the respondents cannot be heard. Neither the concession made by the learned Deputy Attorney General nor his prayer for remand can thus be entertained and considered. There is nothing before us to show that the respondents pressed their appeal also on the merit. It was decided only on the ground of limitation which was taken as the only point for determination. Respondents have been negligent in not taking any step in this appeal before us for rehearing of the appeal in the Appellate Tribunal, if they so wanted.
           In the circumstances of the case and for the reasons stated, we shall only allow this appeal without any further order. No costs. The impugned judgment and order are set aside and those of the Administrative Tribunal are restored.

Ed.

Shakawatullah Vs. Liquidator, Liquidation Call Dhakeswari Cotton Mills, Dhaka & others

Case No: Civil Petition for Leave to Appeal No. 1087 of 2005

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Md. Nawab Ali,Syed M. Rahman ,,

Citation: V ADC (2008) 875

Case Year: 2008

Appellant: Shakawatullah

Respondent: Liquidator, Liquidation Call Dhakeswari Cotton Mills, Dhaka & others

Subject: Property Law,

Delivery Date: 2006-10-15

Shakawatullah Vs. Liquidator, Liquidation Call Dhakeswari Cotton Mills, Dhaka & others
V ADC (2008) 875

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J

Mr. Shakawatullah...............Petitioner
Vs.
Liquidator, Liquidation Call Dhakeswari Cotton Mills, Dhaka & others....... Respondents

Judgment
October 15, 2006.

Premises Rent Control Ordinance, 1983
Section 19 (2)
Bangladesh Industrial Enterprises (Nationalisation) Order, 1972
Article 23 (4)

The High Court Division on consideration of the materials on record found that the rent was not deposited in accordance with law and the petitioner became a defaulter. The High Court Division further held that no suit or proceeding can start in respect of the opposite party No.1 who went under winding up process. The High Court Division further held that the petitioner had already retired from the employment of Dhakeshwari Cotton Mills Ltd. and therefore ceased to be employee of the Mill and thereby ceased to be a tenant as tenant and landlord relationship also ceased to exist. …. (6)

In our view, the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the judgment of the High Court Division. … (7)

Lawyers Involved:
Sufia Khatun, Advocate-on-Record-For the Petitioner.
Nawab Ali, Advocate-on-Record-For respondent No. 1.
Syed M. Rahman, Advocate-on-Record-For respondent No. 2.
Not represented-Respondent Nos. 3-4.

Civil Petition for Leave to Appeal No. 1087 of 2005.
(From the judgment and order dated 09.04.2005 passed by the High Court Division in Civil Revision No. 2906 of 1999).

Judgment

M.M. Ruhul Amin J. - This petition for leave to appeal is directed against the judgment and order dated 09.04.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 2906 of 1999 discharging the Rule.

2. The petitioner filed House Rent Deposit Case No. 8 of 1998 in the 6th Court of Assistant Judge and House Rent Controller, Dhaka for permission to deposit the monthly rent with the Rent Controller under section 19(2) of the Premises Rent Control ordinance, 1983 stating, inter alia, that the suit premises originally belonged to Dhakeshwari Cotton Mills Ltd. and the petitioner being an employee of Dhakeshwari Cotton Mills Ltd. was a monthly tenant at a monthly rental of Tk. 150/- under the Dhakeshwari Cotton Mills Ltd. which was subjected to winding up process under the control and management of the Official Liquidator and ultimately the property vested in the Government and the liquidator has been taking steps to sell the suit property to B.T.M.C and in such circumstances a dispute arose with regard to the ownership of the suit property and the petitioner has a doubt as to the bona fide landlord of suit property and intended to deposit the rent with the House Rent Controller till the dispute is resolved. It was further stated that the petitioner sent the rent of Tk. 150/- by a money order to the Liquidator, Government of Bangladesh on 31.12.1987 but the same was returned back to the petitioner as undelivered on 03.01.1988. Accordingly the petitioner intended to deposit the monthly rent with the Rent Controller under section 19(2) of the Premises Rent Control Ordinance.

3. The opposite parties contested the case by filing a written objection contending that the petitioner ceased to be a tenant in the suit premises and the property vested in the Government and the present proceeding is barred under Article 23(4) of the Bangladesh Industrial Enterprises (Nationalisation) Order, 1972 and the rent were not deposited with the House Rent Controller in accordance with law. The further case is that the petitioner has defaulted in making deposit of the monthly rent with the House Rent Controller in accordance with Premises House Rent Ordinance, 1983.

4. We have heard Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioner and Mr. Md. Nawab Ali, the learned Advocate-on-Record for respondent No.1 and perused the judgment of the High Court Division and other connected papers.

5. The trial court found that the money order containing the monthly rent was returned to the petitioner on 03.01.1988 and the rent deposit case was started on 09.03.1988 and as such the rent deposit case was not legally and validly started. The trial court further found that the petitioner deposited the rent for the month of January and February, 1981 at a time and then the rent for June-July, 1988 on 23.08.1988, rent for September and October, 1988 was deposited on 22.11.1988, rent for August and September, 1988 was deposited in the month of November and the rent for November and December 1991 was deposited on 14.01.1992 and the rent for November and December, 1992 was deposited on 30.11.1992. The trial court further found that the petitioner submitted a chalan for the month of August and September, 1993 on 23.10.1993 which was not acceptable. The trial court further found under Article 23(4) of the Bangladesh Industrial Enterprises (Nationalisation) Order, 1972 (P.O. No. 27 of 1972) when a winding up order has been made, no suit or other legal proceeding shall be proceeded with or commenced against a scheduled industrial enterprise or any industrial enterprise placed under a Corporation by an order under clause (1) of Article 10 and all suits and order legal proceedings pending against such an enterprise on the date of winding up order shall abate. The trial court noticed that the winding up proceeding of the opposite party No.1 was started on 23.01.1982 and published in Bangladesh Gazette on 04.02.1982 and thereby rent deposit proceeding could not commence and shall not proceed with. The trial court further noticed that both the parties admitted that the suit property had already been transferred to Bangladesh Textile Mills Corporation (B.T. M.C.) and the petitioner by operation of law ceased to be a tenant in the suit property. Accordingly the trial court disallowed the case. The petitioner being aggrieved preferred Miscellaneous Appeal No. 290 of 1997 and the appellate court by judgment and order dated 29.06.1999 dismissed the appeal and affirmed the judgment by the trial court, Being aggrieved the petitioner moved the High Court Division in revisional jurisdiction and the Rule obtained was discharged.

6. The High Court Division on consideration of the materials on record found that the rent was not deposited in accordance with law and the petitioner became a defaulter. The High Court Division further held that no suit or proceeding can start in respect of the opposite party No.1 who went under winding up process. The High Court Division further held that the petitioner had already retired from the employment of Dhakeshwari Cotton Mills Ltd. and therefore ceased to be employee of the Mill and thereby ceased to be a tenant as tenant and landlord relationship also ceased to exist.

7. In our view, the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the judgment of the High Court Division.
Accordingly, the petition is dismissed.
Ed.

Shakwat Vs. Bangladesh and others, (Md. Abu Zafor Siddique, J.)

Case No: Writ Petition No. 5556 of 2014

Judge: Md. Abu Zafor Siddique, J

Court: High Court Division,

Advocate: Mr. Qumrul Haque Siddique, Senior Advocate with Mr. Satya Ranjan Mondal with Ms. Rasida Chowdhury, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Shakwat Hossain Bhuiyan

Respondent: Bangladesh and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Abu Zafor Siddique, J

Judgment on

01.03.2018

}

Shakwat Hossain Bhuiyan

. . .Petitioner

-Versus-

Bangladesh and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 102 and 125

Representation of People Order (PO No. 155 of 1972)

Article 12

It is now a well settled proposition of law that if there is efficacious and alternative remedy is available, a writ petition under Article 102 of the Constitution is not maintainable. Admittedly it has been raised whether Article 125 of the Constitution puts a bar in the instant case in hand. Admittedly as per the aforesaid provision of law there is a legal bar questioning the result of the election declared by the commission except following the provisions of RPO. In the present case in hand it appears that the petitioner in the disguise of Article 102 of the Constitution trying to enforce the provisions of RPO. In the present case in hand it further appears that the question as raised by the petitioner regarding certain declarations made by the respondent No.7 before the Election Commission which is completely a dispute to be resolved by the competent authority as provided in the Represented People Order (RPO). Admittedly there is a provision namely Article 12 of the RPO to deal with the issue as raised therein. . . . (23)

Constitution of Bangladesh, 1972

Article 102 (2) (b) (ii)

Regarding writ of quo warranto the fundamental Rule is that the petition has to be in greater public interest. Any such attempt for securing private interest cannot be encouraged. In the case in hand it has been revealed that the petitioner has far reaching personal interest and intends to use this as weapon to defeat his political rival. Apart from that it is now a well settled proposition of law is that if there is any alternative remedy available no writ petition even in the form of quo warranto is liable to be maintained. . . .(34)

Constitution of Bangladesh, 1972

Article 102 (2)

The proceeding under Article 102 (2) of the Constitution is a summary one and it is decided on the statements made on affidavits filed by the parties and the documents annexed to the application and the affidavit-in- opposition. Hence it is often held that the court will decline to exercise jurisdiction when the application involves resolution of disputed question of fact. The court will neither decide the complicated question of title nor disputed question of fact relating to damages or compensation. The rule is that the court will decline to exercise the jurisdiction only when the dispute as regards facts is such that the dispute cannot be reasonably resolved on the facts pleaded and documents produced before the court. In the instant writ petition it clearly transpires that the contentions as raised by the parties can only be determined by adjudication of the factual aspects and for that a detailed investigation is required which includes examination of evidence as well as examination of witness. The contentions as raised thus are highly disputed question of facts which in the line of the authorities cannot be adjudicated like a summary referred proceedings under Article 102 of the Constitution of the republic. Considering the facts and circumstances, discussion made hereinabove as well as the decisions as referred to, I am of the view that the instant writ petition is not maintainable. . . .(35 to 38)

The King’s V. Speyer and the King V. Cassel, Hussain Mohammad Ershad Vs. Zahidul Islam Khan and others, 21 BLD 142 (AD) 2001; Habibur Rahman @ Raju Vs. The State, 20 BLD (HCD) 117 (2000); Abdur Rob Mia (Md) Vs. District Registrar and others, 4 BLC (AD) 8 (1999); Dangar Khan and others Vs. Emperor AIR 1923 Lahor 104; Chandgi Ram Thakar Dass Vs. Election Tribunal and Asst. Development Commissioner for Panchayat Election, Delhi and others, AIR 1965 PUNJAB 433 (V 52 C 136) (AT DELHI) and Risal Singh V. Chnadi Ram and others, AIR 1966 PUNJAB 393; National Board of Revenue Vs. Abu Syed Khan and others, 18 BLC (AD) 116; AFM Shah Alam Vs. Mujibul Huq and others, 41 DLR (AD) 68; Farid Mia (Md) Vs. Amjad Ali (Md) alias Mazu Mia and others, 42 DLR (AD) 13; Kurapatia Maira Das Vs. M/S Doctor Ambedker Seva Samajan and others, New India Tea Company Ltd. Vs. Bangladesh and others, 31 DLR (AD) 303 (1979); Abdul Mukit Chowdhury Vs. The Chief Election Comisioner and others, 41 DLR 57 and K.Venkatachalam Vs. A Swamikan and another, (1999 (4) SCC 526 ref.

Mr. Qumrul Haque Siddique, Senior Advocate with

Mr. Satya Ranjan Mondal with

Ms. Rasida Chowdhury, Advocates

. . . For the petitioner.

Mr. Shafiq Ahmed, Senior Advocate with

Mr. Md. Nurul Islam Sujan, Advocates

. . . For the respondent No.7.

Mr. Aminur Rahman Chowdhury, DAG

. . . For the respondent Nos. 8 and 9.

No one appears.

. . . For the respondent No. 10.

JUDGMENT

Md. Abu Zafor Siddique,J: In an application under Article 102(2)(b)(ii) of the Constitution of the People’s Republic of Bangladesh, Rule was issued calling upon the respondents in the following terms;

“Let a Rule Nisi be issued calling upon the respondents to show cause as to under what authority the respondent No.7 is holding the post of Member of Parliament (MP) for the constituency of Feni-2 and why the said seat of the Member of Parliament (MP) for the said constituency of Feni-2 shall not be declared vacant and/or pass such other or further order or orders as to this court may seem fit and proper.”

2. While issuing the Rule this Court also issued the following directions;

“(a) The jail authorities being the Inspector General of Prison (IG Prison) and the senior Jail Super, Chittagong Central Jail, Chittagong, (respondent Nos.8 and 9) were directed “to submit a report on the service of the period of sentence in Jail by respondent No.7 along with relevant record /file.” And

(b) Editor of the Daily Prothom Alo (respondent No.10) was “directed to explain his position and also the sources and authenticity of the news item p¡S¡ Lj ®MV~, ®h¢lu k¡e p¡wpc. Published in the Daily Prothom Alo dated 10.05.2014”.

3. The respective respondents contested the rule by filing affidavit in oppositions.

4. Subsequently the matter was taken up by a Division Bench comprising by their Lordships Mr. Justice Md. Emdadul Hoque and Mr. Justice FRM Nazmul Ahasan. The Court heard the matter for 4(four) consecutive days and fixed 06.12.2016 for judgment. On the date the Court passed split judgments wherein Mr. Justice Md. Emdadul Hoque made the Rule absolute with consequential directions, wherein Mr. Justice FRM Nazmul Ahasan discharged the rule. As their Lordships passed dissenting order the matter was referred to the Hon’ble Chief Justice for order. The Hon’ble Chief Justice thereafter Constituted this bench as 3rd Judge to hear and dispose of the matter.

5. While disposing the instant writ petition both the lordships elaborately stated the facts in their respective judgments. As such I am of the view that elaborate facts need not be re-attriated again. However, for the disposal of the Rule by this Court the short fact is that the petitioner is a voter of constituency number 266 of Feni-2. The petitioner is a conscious citizen of the country. The respondent No.7 contested in the Parliamentary Election in 2014 and elected as a Member of the Parliament. The Election Commission by gazette notification notified the same. As per the petitioner the respondent No.7 has made false statement in the affidavit filed before the Election Commission as regards to his criminal record for taking part in the National Election. The main allegation as made by the petitioner is that the respondent No.7 escaped the sentence awarded by a Court of law by way of committing fraud. The conduct of the respondent No.7 is against the provision of Article 66 (2)(d) of the Constitution of the People’s Republic of Bangladesh. As such the respondent No.7 shall be disqualified to contest or to be elected as Member of Parliament.

6. The respondent No.7 entered appearance and contested the Rule by filing affidavit in opposition. The contention of the respondent No.7 is that; the petitioner filed this writ petition before this Court as one of the political rivals of the respondent No.7. The petitioner was the councilor candidate of the Feni Pourashava when the respondent No.7 was elected Mayor of the Feni Pourashava, but the petitioner defeated to be elected as councilor of the said Pourashava and thereafter, conflict arises in between the petitioner and the respondent No.7. Once upon a time, the petitioner was one of the close associate of the respondent No.7 and when the respondent No.7 was inside the Jail in a falsely implicated Criminal Case for the alleged recovery of unauthorized arms from his possession and was convicted and sentenced, and the writ petitioner was the tadbirkar of the said Criminal Case up to the Appellate Division of the Supreme Court of Bangladesh. Since the petitioner is an interested person and political rival of the respondent No.7 and brought the present writ petition with malafide intention in the name of public interest litigation after 8 (eight) years of release of the respondent No.7 from Jail and became elected as Mayor of Feni Pourashava and then elected as a Member of Parliament. It has been further contended that the respondent No.7 did not serve the full sentence by way of committing fraud is not at all correct; that the respondent No.7 has been released from the Jail custody as per provision of the Jail Code by serving the full sentence awarded against him. The respondent No.7 did not commit any wrong in filing the affidavit before the Returning Officer for participating in the National Election for the Member of Parliament and he was released from Jail after completion of the period of sentence as per provision of Jail Code and that the respondent No.7 did not suppress anything in his aforesaid affidavit. The Metropolitan Sessions Judge, 4^th Court, Chittagong vide judgment and order dated 16.08.1999 convicted the respondent No.7 in Special Tribunal Case No.757 of 1999 arising out of Doublemuring Police Station Case No.29 dated 22.03.1992 under section 19A and (f) of the Arms Act and sentenced him to suffer rigorous imprisonment for a period of 10(ten) years under section 19A of the said Act and further sentenced for a period of 7(seven) years under section 19(f)of the said Act concurrently. After judgment dated 16.08.1999, the respondent No.7 surrendered before the Court on 14.09.1999 and preferred appeal being Criminal Appeal No.2369 of 2000 before the High Court Division of the Supreme Court of Bangladesh. The High Court Division dismissed the appeal vide judgment and order dated 02.05.2001 and against that the respondent No.7 preferred Criminal Petition for Leave to Appeal No.107 of 2001 before the Appellate Division of the Supreme Court which was dismissed on 27.02.2002. Against the said judgment dated 27.02.2002, the respondent No.7 filed Criminal Review Petition No.18 of 2002 and the said Review Petition was dismissed on 26.06.2004. The respondent No.7, after dismissal of the review Petition served in the custody and after serving in the custody he has been released from the Chittagong Central Jail on 01.12.2005 as per the Jail Code on the basis of remission.

7. The respondent No.10 ‘the daily Prothom Alo’ in paragraph No.6 of its affidavit-in-compliance dated 07.07.2014 annexing the photocopy of snap shot of remission ticket stated that ‘the reporter took some snaps of the relevant parts of Koyed Register where necessary information lies as evidence of his news’ which shows that the respondent No.7 has been released from Jail on the basis of remission on 01.12.2005. The respondent No.7 after releasing from the Jail contested in the Pourashava election and was elected as Mayor of Feni Pourashava on 18.01.2011. Subsequently, he has contested in the National General Election and he has been elected as a Member of Parliament on 05.01.2014 from Feni-2, Constituency No.266. Hence none appeared for respondent No.10. The respondent Nos.8 and 9 also filed affidavit in compliance pursuant to the direction given at the Rule issuing order.

8. Mr. Qumrul Haque Siddique, the learned senior Advocate appearing along with Mr. Satya Ranjan Mondal and Ms. Rashida Chowdhury, the learned Advocates on behalf of the petitioner submits that the respondent No.7 is disqualified to be elected as Member of the Parliament because of moral turpitude in this connection. He referred the provision of Article 66(2)(d) of the Constitution of the Republic. The main contention as raised by the learned counsel is that the respondent No.7 is disqualified for making false statement punishable under Article 73 of the RPO. He submits that because of the false declaration the respondent No.7 is disqualified to be elected as per Article 12 (1)(d) of the RPO for offences under Article 73 of the RPO and effective legal measure be taken against the respondent No.7 for his corrupt practice under Article 73(3)(a) of the RPO for giving false statement in the affidavit. He further submits that the respondent No.7 has an obligation under Article 12, clause (3b), sub-clause (b & C) of RPO, 1972 to submit true information as regards present and past criminal records of the candidate in the affidavit but he did not honestly disclosed all the material and true information in the affidavit, which is clear violation of the above mentioned Article 12 (3b) (b & c) of the RPO, 1972. Hence, holding the present post by the respondent No.7 is liable to be declared illegal. He submits that this writ petition is being filed by the petitioner in the nature of quo warranto and he made out a positive case in this regard. He submits further that this petition by way of quo warranto is very much maintainable as per the provision of the Constitution itself and thus the respondent No.7 is not liable to hold the office of the Member of Parliament. He further submits that this is a fit case of quo warranto in public interest which requires interference by this Court.

9. Mr. Siddique further submits that the respondent No.7 should be declared as disqualified because, under Article 63(1) (b & c) of the RPO, 1972 the High Court Division has the authority to declare the election of any returned candidate to be void if, it is satisfied that the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member or the election of the returned candidate has been procured or induced by any corrupt and illegal practice. He next submits that the respondent No.7 after failing in all the legal steps up to the Hon’ble Appellate Division of the Supreme Court preferred Criminal Appeal No.1409 of 2006 in this Court on 17.05.2006 and subsequently released from the Jail custody on 01.06.2006. As he was convicted and sentenced to suffer rigorous imprisonment for 10 years and 7 years concurrently and he surrendered on 14.09.2000 before the trial Court and sent to Jail custody and thereafter, he was released on bail on 01.06.2006. Thus, he was in jail for 5 years 8 months and 19 days and if, he got the highest remission as per Jail Code, 1894 i.e. 60 days per year he will get remission with the sentenced 10 years from 600 days and in this way he has to be in the custody about 916 days more, which has not yet been served out. He further submits that according to section 568 of the Jail Code of 1894 the petitioner will not get any remission more than one third of the entire sentence. In support of the above submission, Mr. Siddique referred to the case of THE KING V. SPEYER AND THE KING V. CASSEL before the KING’S BENCH DIVISION, Judgment dated 16, 17 November, 1915, Hussain Mohammad Ershad vs. Zahidul Islam Khan and others, reported in 21 BLD 142 (AD) 2001, Habibur Rahman @ Raju vs. the State, reported in 20 BLD (HCD)117 (2000), Abdur Rob mia (Md) vs. District Registrar and others reported in 4 BLC (AD) 8 (1999), Dangar Khan and others vs. Emperor reported in AIR 1923 Lahor 104, Chandgi Ram Thakar Dass vs. Election Tribunal and Asstt. Development Commissioner for Panchayat Election, Delhi and others, reported in AIR 1965 PUNJAB 433 (V 52 C 136) (AT DELHI) and Risal Singh V. Chandgi Ram and others, reported in AIR 1966 PUNJAB 393.

10. Mr. Shafiq Ahmed the learned Senior Advocate appearing along with Mr. Nurul Islam Sujon the learned Advocate on behalf of the respondent No.7 submits that the writ petition is not maintainable as the petitioner is one of the political rival of the respondent No.7 who was a Councilor candidate of the Feni Pourashava when the respondent No.7 was elected as Mayor of the said Pourashava and thereafter, conflict arises between the petitioner and respondent No.7 and since the petitioner is an interested person and political rival of the respondent No.7, writ petition brought with malafide intention after 8 years of the release of the respondent No.7 from the Jail and became elected as Mayor of Feni Pourashava and thereafter, elected as a Member of Parliament. He further submits that the respondent No.7 did not commit any fraud in order to get remission from the Jail and he has been released from the Jail custody as per provision of the Jail Code after serving the sentence awarded against him and on remission. Thus, the question raised by the petitioner is a disputed question of fact which is brought with malafide intention. He further submits that a news which has been published in the daily Prothom Alo and the allegation made by the petitioner and the respondent Nos.8 and 9 that he has not served out the entire period of sentence is a matter of calculation about the period of Jail custody of the respondent No.7 and all are disputed questions of fact which cannot be resolved in the writ petition. He also submits that the respondent No.7 did not face any criminal case so far known to him other than the criminal case in which he was convicted and preferred appeal and it was upheld by the Appellate Division and the respondent No.7 released from jail custody on 01.12.2005. Thus, this matter is also a disputed question of fact which cannot be resolved in the writ petition. Mr. Ahamed further submits that the respondent No.7 did not commit any wrong in filing the aforesaid nomination paper before the Returning Officer i.e. for the election of the Member of Parliament and he was released from jail after served out his sentence as well as on remission as per provision of Jail Code and the respondent No.7 did not suppress anything in his aforesaid affidavit. Mr. Shafiq Ahamed submits that the respondent Nos.8 and 9 could not produce the history ticket in which the blood donation of the respondent No.7 was recorded and the report submitted by the respondent Nos.8 and 9 is not a complete report without placing the proof of blood donation which was recorded in the history ticket. Thus, on the basis of the aforesaid report, which is a disputed one, cannot be said that the respondent No.7 did not serve out the entire period which is claimed by the petitioner and the calculation of the remission awarded by the respondent No.7 by donation of blood is a disputed question of fact, as the respondent No.7 claimed that he has served out entire period of sentence with remission and the respondent Nos.8 and 9 claimed that he did not served out the entire period of sentence is a highly disputed question of fact which cannot be resolved in the writ petition. In support of his contention he relied upon the decision reported in 31 DLR (AD) 303. He further submits that the present case does not come within the purview of the Public Interest Litigation (PIL) as there are some fundamental principles are to be followed in a case of PIL. But in the case in hand the petitioner mainly raises his personal interest rather than public. In support of contention he relied upon the decision reported in 18 BLC (AD) 116. Apart from that he further submits that as per Article 66(2) (d) of the Constitution of the Republic puts bar if the offence involves the question of Moral Turpitude but the offence as alleged does not comes within the definition of Moral Turpitude in any manner. In support of his contention he relied upon the decision of Hussain Mohammad Ershad Case. Mr. Ahamed submits that the rule is liable to be discharged. In support of the above submission Mr. Ahamed referred to the Case of National Board of Revenue Vs. Abu Syed Khan and others reported in 18 BLC (AD) 116, AFM Shah Alam Vs. Mujibul Huq & ors. reported in 41 DLR(AD) 68, Farid Mia (Md) Vs. Amjad Ali (Md) alias Mazu Mia and ors. reported in 42 DLR(AD) 13, Kurapatia Maria Das Vs. M/S Doctor Ambedker Seva Samajan and others. (in Civil Appeal No. 2617 of 2009 arising out of SLP (civil) No. 15144 of 2007) Judgment dated 17^th April, 2009, Supreme Court of India and New India Tea Company Ltd. Vs. Bangladesh and others reported in 31 DLR (AD) 303 (1979).

11. Mr. Aminur Rahman Choudhury, the learned Deputy Attorney General appearing on behalf of the Respondent No. 8 and 9 opposes the Rule and submits that the instant writ petition itself is not maintainable because of the personal interest of the petitioner in question. He submits that the petitioner in the case in hand raises serious disputed question of fact which cannot be resolved in a summary proceedings under Article 102 of the Constitution of the Republic. He further submitted that the questions as raised by the petitioner needs to be addressed only by taking elaborate evidence as much as the jail authority themselves admitted that there are defective papers submitted by the petitioners which cannot be relied upon in any manner. He lastly submits that the rule is liable to be discharged.

12. I have perused the application under Article 102 of the Constitution of the People’s Republic of Bangladesh, rule issuing order, affidavit in opposition, supplementary affidavits, affidavit in reply as well as affidavit in compliance. I have also perused the different papers and documents annexed with the writ petition as well as time to time supplied to this court as directed. I have also heard the learned counsels for the contesting parties, perused the decisions as referred to as well as the provisions of law. On perusal of the same it appears that the petitioner filed the writ petition as a bonafide citizen for public interest in the nature of writ of quo warranto. The petitioner has challenged the holding of the office of Member of Parliament by the respondent No.7 without lawful authority as he is being elected in violation of the provision of Representative Peoples Order (RPO) and ultimately in violation of the provisions of the Constitution of the Republic. In course of arguments both the parties raises numerous issues as well as a series of documents has been filed to justifying the respective claims.

13. The main contention as it appears from the writ petition is that the respondent No.7 was convicted under section 19A and (f) of the Arms Act and sentenced to suffer rigorous imprisonment for a period of 10(ten) years under section 19A of the said Act and further sentenced for a period of 7 years under section 19(f) of the said Act concurrently in Special Tribunal Case No.757 of 1999 passed by the judgment dated 16.08.1999. Thereafter, the respondent No.7 surrendered before the Court on 14.09.1999 and preferred appeal being Criminal Appeal No.2369 of 2000 before the High Court Division which was dismissed on 02.05.2001. Against which the respondent No.7 preferred Criminal Petition for Leave to Appeal No.107 of 2001 which was also dismissed on 27.02.2002. Against that, a Criminal Review Petition No.18 of 2002 was filed and the same was dismissed on 26.06.2004.

14. The respondent No.7 thereafter contested the local government election in the year 2011 and he was elected as Mayor of Feni Pourashava. Thereafter, he was elected as a Member of the Parliament and presently holding the office of the same. On the basis of a report in a news paper that the respondent No.7 escaped certain jail term the instant writ petition was filed.

15. The allegation as brought against the respondent No.7 is that the respondent No.7 was convicted and sentenced to suffer rigorous imprisonment for 10 years and 7 years concurrently meaning that he had to suffer 10 years in Jail, i.e. the respondent No.7 had suffered both in custody and Jail for a total period of 5 years 7 months and 21 days and the duration of period of conviction of the respondent No.7 was reduced to 1 year 6 months and 17 days as per news report. In that context, it appears that the respondent No.7 became free almost 2 years and 10 months long before of his actual exit date from Jail, i.e. before finality of serving out his punishment, the respondent No.7 came out of the jail and contested the national election in 2014 from Feni-2 Constituency and as per Article 66(2)(d) of the Constitution of the People’s Republic of Bangladesh, a person shall be disqualified for election as a Member of Parliament who has been on conviction for a Criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release and before serving out the punishment and thereby elapsing of subsequent five years, the respondent No.7 contested the national election and making false statement in the affidavit of the nomination paper and as such he may be declared disqualified for election as per Article 12(1)(d) of the RPO for offences under Article 73 of the RPO and holding the present post by the respondent No.7 is unlawful and may be declared illegal.

16. On the other hand, the respondent No.7 denied the allegation made in the writ petition stating that he has been released from Jail on 01.12.2005 after serving the sentence and getting proper remission from the Jail authority. This contention of the respondent No.7 is particularly supported by the respondent No.10 which published a news with a snap shot of the register of Chittagong Jail authority signed by the Senior Jail Super, Chittagong Central Jail that, j¤m p¡S¡ ®lu¡a fËb¡u ®i¡N ®no j¤¢J² ®cJu¡ qm¡ ®lu¡a 01-06-2017 (ü¡rl AØfø) 1/12/2005 ¢p¢eul ®Sm p¤f¡l QVÊNË¡j ®L¾cÐ£u L¡l¡N¡lz” but this fact is denied by the respondent Nos.8 and 9 in their affidavit-in-compliance. They have stated that the respondent No.7 was released from jail on bail on 01.06.2006 in Criminal Appeal No.1409 of 2006 from the High Court Division. Mr.Sagir Mia, Senior Jail Superintendent, Chittagong Central Jail submitted that, “L¡l¡N¡l qa p¡S¡ Lj ®MV ®h¢lu k¡Ju¡l ®L¡e p¤k¡N ®eC z h¢eÑa Lu¢c ¢eS¡j q¡S¡l£ Aœ L¡l¡N¡l qa p¡S¡ ®i¡Nla AhØq¡u jq¡j¡eÉ Bc¡mal Bcn ®j¡a¡hL S¡¢je j¤¢J² m¡i Llez’’ and he begs apology for his earlier re-joinder (fÊ¢ah¡c-¢m¢f) that the respondent No.7 was released on 01.12.2005 fro the jail on remission.

17. From the report dated 30.06.2016 filed by the respondent No.9 that, “Lu¢c ew 4014/H Se¡h ¢eS¡j E¢Ÿe q¡S¡l£ pÇf¢LÑa QVÊNË¡j ®L¾cÐ£u L¡l¡N¡ll i¢aÑ ®l¢Sø¡l ¢el£r¡ Ll ®cM¡ k¡u, EJ² fªø¡u e£Ql ®L¡e¡u HL¢V hs Awn ®Rs¡ Lu¢c i¢aÑ ®l¢SØV¡ll 25 ew Lm¡j ®kM¡e h¢¾c j¤¢J² pwH²¡¿¹ abÉ ¢m¢fhÜ Ll¡ qu ®pC AwnY~¤L¥C ®Rs¡ (R¡u¡¢m¢f pwk¤J² P)z’’

i¢aÑ ®l¢SØV¡ll j¤¢J² pwH²¡¿¹ abÉ ¢m¢fhÜ pwH²¡¿¹ Lm¡jl AwnV¥L¥ ®Rs¡ b¡L¡, i¢aÑ ®l¢SØV¡l lu¡a pwH²¡¿¹ abÉ Oo¡j¡S¡ b¡L¡, j¤m p¡S¡ ®lu¡a fËb¡u j¤¢J² ®cu¡ qm¡ jjÑ i¥u¡ H¢ÇVÊ q~aÉ¡¢c ¢hou…m¡ fkÑhre Ll fËa£uj¡e qµR L¡l¡N¡ll ®L¡e c¤ø QH²l j¡dÉj ®L¡e A®~hd X~ŸnÉ /q£e ü¡bÑ Q¢la¡bÑ Ll¡l j¡ep H ¢jbÉ¡ OVe¡ pj¤q p¡S¡e¡ quR z Se¡h ¢eS¡j EŸ£e q¡S¡l£ 2011 p¡m ®f±lpi¡ ¢ehÑ¡Qe BCeNai¡h je¡eue c¡¢Mml naÑ f¤le¡bÑ 5 hRl f¤hÑ L¡l¡ j¤¢J²l ®L¡e fËaÉue pwH²¡¿¹ abÉ h¡ e¢b k¢c L¡l¡ LaÑ§fr h¡ ¢h‘ ¢hQ¡¢lL Bc¡ma LaÑªL ¢ehÑ¡Qe L¢jne EfØq¡¢fa qu b¡L ah a¡ ¢el£rZ Ll¡l fËu¡Se luR Hhw a¡l SeÉ HL¢V pj¢eÄa ac¿¹ L¢j¢V NWel fËu¡Se£ua¡ ¢hh¢Qa qµR z’’

18. From Annexure-X dated 09.10.2016, report of the IG Prison it appears that, ‘Efl¡J² p¡LÑ¤m¡l j¤m lJ²c¡el ¢h¢eju ®L¡e Luc£ Bp¡j£l fË¡ç ¢hno ®lk¡|a p¤¢hd¡ ¢hÙ¹¡¢la L¡l¡ ¢h¢d 767 Hl ¢hd¡e ®j¡a¡hL h¾c£l ®lu¡a L¡XÑ J ¢q¢ØVÊ ¢VLV ®lu¡a fËc¡el L¡lZ J fË¡ç ®lu¡al f¢lj¡e EõM b¡La¡z EõMÉ ®k, ®lu¡a L¡XÑ J ¢q¢ØVÊ ¢VLV pwlrel ®ju¡c L¡l¡ ¢h¢dl 780(8) J 588 Hl ¢hd¡e ®j¡a¡hL 01(HL) hvpl z Luc£ ew 4114/H ¢eS¡j E¢Ÿe q¡S¡l£ Hl ¢q¢ØVÊ ¢VLV, ®lu¡a L¡XÑ Hhw lJ² c¡e pwH²¡¿¹ ®L¡e e¢bfœ QVÊNË¡j ®L¾cÐ£u L¡l¡N¡l M¤S e¡ f¡Ju¡u EJ² ¢hou ¢hÙ¹¡¢la abÉ EcO¡Ve Ll¡ pñh qu¢e z QVÊNÊ¡j ®L¾cÐ£u L¡l¡N¡l Se¡h ¢eS¡j q¡S¡l£l lJ² c¡e pwH²¡¿¹ ®L¡e abÉ e¡ f¡Ju¡u L¡l¡ LaÑªfr H ¢hou fË¢ahce ®fËlel SeÉ på¡e£, QVÊNË¡j ®j¢XLm LmS CE¢eV, QVÊNÊ¡j hl¡hl fœ j¡lga ®k¡N¡k¡N Llez

på¡e£ HL fœl j¡dÉj S¡e¡u ®k, 14-12-2000 ¢MËÊx qa 15-9-2005 ¢MÊx fkÑ¿¹ pjul Q¡¢qa ®lLXÑ fœ¡¢c 10-12 hRll f¤le¡ ¢hd¡u Hhw a¡cl L¡kÑ¡mu Øq¡e¡¿¹ll pju ¢heÖY~ quR ¢hd¡u Q¡¢qa abÉ fËc¡e Af¡lNa¡ fËL¡n Ll c¤xM fËL¡n LlRe z ah på¡e£ LaÑªfr fËcš pec Aü£L¡l Lle¢ez’

19. So it appears from the aforesaid report of the respondent Nos.8 and 9 appears that the respondent Nos.8 and 9 admitted that the information record in the admission register was torn and it was done by some dishonest clique and to find out the real fact and it further reveals that there is no existence of history ticket wherein the elaborate information of blood donation of the prisoner is recorded. There is no information about the blood donation in the record of the Chittagong Central Jail. The Sandhani authority also could not produce any record though they did not deny their certificate about the blood donation.

20. Furthermore Annexure-10, it appears that during his custody in jail from 14.09.2000 to 01.12.2005 respondent No.7 donated blood in total 13 times through the Chittagong Jail authority to the Sandhani, a renowned charitable organization of medical students, and thereby obtained special remission under Code No.765 of the Jail Code, but the respondent No.8 did not count the said special remission. From the certificate dated 06.10.2005 given to the respondent No.7 by Sandhani (Annexure-9) has been annexed with the affidavit in reply of the respondent No.7 to the affidavit-in-compliance of the respondent No.8, a certificate was also given to the respondent No.7 by the Sandhani authority which quoted below :

fËnwp¡ fœ

HC jjÑ fËaÉue Ll¡ k¡CaR ®k, ¢eS¡j E¢Ÿe q¡S¡l£, ¢fa¡-Sue¡m A¡hc£e q¡S¡l£, BC¢X ew-4114/H L¡l¡¿¹l£e b¡L¡L¡m£e QVÊNË¡j ®L¾cÐ£u L¡l¡N¡l Na 14-12-2000 ¢MËx qa 15-9-2005 ¢MËx fkÑ¿¹ pjul jdÉ BaÁÑj¡eha¡l ®ph¡u ¢eu¡¢Sa qCu¡ QYÊ~NË¡j ®L¾cÐ£u L¡l¡N¡l LaÑªfrl j¡dÉj 13 (®al) CE¢eV lJ²c¡e Ll¡u Bfe¡L Aœ pwÇq¡l fr ®bL ®cn J S¡¢al LmÉ¡Z i¥¢jL¡ l¡M¡u B¿¹¢lLi¡h deÉh¡c ‘¡fepq Bfe¡l j‰m J E‹m i¢hoÉa L¡je¡ Ll¢R z

ü¡rl

pi¡f¢a

QYÊ~NË¡j ®j¢XLm LmS CE¢eV, på¡e£

ü¡rl

p¡d¡le pÇf¡cL

QYÊ~NË¡j ®j¢XLm LmS CE¢eV, på¡e£

21. Article 102 of the Constitution of the People’s Republic of Bangladesh runs as follows:

“102.(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental right conferred by part III of this Constitution.

(2) The High Court Division may, if satisfied that no other equally officious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(i) directing a person performing any functions in connection with the affairs of the Republic or of a local authority, to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do ; or

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority, has been done or taken without lawful authority and is of no legal effect; or

(b) on the application of any person, make an order –

(i) directing that a person in custody be brought before it so that it may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or

(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.”

Clause (1) and (2) of article 102 of the Constitution show the following features:

(a) Clause (1) of article 102 provides that for enforcement of a fundamental right only a ‘person aggrieved’ can apply to the High Court Division.

(b) Clause 2(a) provides that for obtaining a remedy in relation to an action or omission of a public authority only a ‘person aggrieved’ can apply to the High Court Division.

(c) As opposed to the above noted two clauses, clause (2) (b) (ii) provides that “any person” can apply to High Court Division challenging the lawful authority of a person in holding a public office, if no other efficacious remedy is available to the petitioner provided by other laws.”

22. So it appears that the lawful authority of the respondent No.7 to hold of the public office of the Member of Parliament comes within the purview of Article 102(2)(b)(ii) of the Constitution and under which any person can make an application. Obviously the person may not be aggrieved to challenge the same but any person is competent to do so. But the fundamental principle is that such application is to be a public interest one. In the present case in hand it appears that the petitioner is a local rival of the respondent No.7. In numerous papers and documents it clearly transpires that the petitioner is a political rival of the respondent No.7 and he has personal interest in the present case in hand. The cardinal principle as determined time to time and got endorsement by this Court as well as our Apex Court that a person has to come before a court of law with clean hand. A person who is seeking remedy is to show his fairness, moral impartiality. It is the duty of the court of law to ensure that there is no personal or malafide intention when an application has been pressed for public interest. As such fairness is very much essential to ensure the rule of law and the establishment of administration of justice. In the present case in hand it is very much clear that the petitioner though pose himself as an aggrieved person with a cause of greater public interest which attracted the principle of public interest but there is a clear deviation from the same because of the personal interest. The petitioner being a political rival and for being personal interest cannot succeeds to press his bigger cause namely public interest litigation.

23. It is now a well settled proposition of law that if there is efficacious and alternative remedy is available, a writ petition under Article 102 of the Constitution is not maintainable. Admittedly it has been raised whether Article 125 of the Constitution puts a bar in the instant case in hand. Admittedly as per the aforesaid provision of law there is a legal bar questioning the result of the election declared by the commission except following the provisions of RPO. In the present case in hand it appears that the petitioner in the disguise of Article 102 of the Constitution trying to enforce the provisions of RPO. In the present case in hand it further appears that the question as raised by the petitioner regarding certain declarations made by the respondent No.7 before the Election Commission which is completely a dispute to be resolved by the competent authority as provided in the Represented People Order (RPO). Admittedly there is a provision namely Article 12 of the RPO to deal with the issue as raise herein.

24. Article 66 2(d) of the Constitution runs as follows;

“66. Qualification and disqualification for election to parliament. (1) A person shall, subject to the provision of clause (2), be qualified to be elected as, and to be, a member of parliament if he is a citizen of Bangladesh and has attained the age to twenty five years.

(2) A person shall be disqualified for election as, or for being a member of Parliament who –

(a)-------------(c) -------------(not relevant)

(d) has been, on conviction for a criminal offence involving moral turpitude, sentenced for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less that two years, unless a period of five years has elapsed since his release.”

1(dd)----------------------------------(not relevant)

(2A)---(5) ----------------------( not relevant)

25. So a careful reading a Article 66(2) of the Constitution runs as follows;

“Particularly the expression “A person shall be disqualified for election as, or for being a member of Parliament” read with clauses (d) shows that the Constitution contemplates 3 (three) situations about the disqualification of a person, namely- (1) the disqualification acquired before election, (2) the disqualification acquired after election, and (3) disqualification that was acquired before but continues after the election.”

26. In the present case in hand the it has been argued that the respondent No.7 acquired the disqualification before election but despite that such allegation can be adjudicated following the provisions of the RPO.

27. The question as relates to the date of release of the incumbent MP from jail and the period of sentenced served out by him has been raised in the present case in hand. I have carefully examined the papers and documents as well as numerous materials submitted before this Court. On careful analyses of the same it appears that a series of disputed questions of fact has been raised while dealing with the said issue. The claim of the petitioner was vehemently opposed by the respondents including the respondent No.7. In course of hearing before this Court numerous affidavits were filed as well as papers and documents were submitted. So it appears that a serious dispute has been raised regarding the same. The deliberations and the contentions as raised herein clearly shows that the same falls within the established principle of, “Disputed Question of Fact.” The contentions as raised by the petitioner and the respondents requires elaborate investigation as well as it also requires examination, as production of evidence and also the question of examination and cross examination of witnesses. As such I am of the view that since serious disputed question of fact has been raised the same cannot be addressed in a summary proceeding under Article 102 of the Constitution of the People’s Republic of Bangladesh.

28. In the case of Abdul Mukit Chowdhury vs. The Chief Election Commissioner & ors reported in 41 DLR 57 wherein it is held,

“Examination of Annexure-A which in its turn requires elaborate investigation warranting proofs which is not the function of this court and it may cause prejudice to either party if the same be taken into consideration under summary proceeding. There being a forum namely, the Election Tribunal set up to investigate into facts, we, therefore, restrain ourselves from making ay observation as to whether the same is authentic or otherwise.”

29. In the case of Farid Mia (Md.) vs. Amjad Ali (Md.) alias Mazu Mia and ors reported in 42 DLR 13 wherein it is held,

“Constitution of Bangladesh, 1972-Article 102-In a summary preceding under Article 102 of the Constitution it is not possible to record a finding as to a disputed question of fact.

In a quo-warranto proceeding, the exercise of authority is discretionary and, among other things, the court takes into consideration the motive of the person who moves the court.

As regards the first ground, it may be stated that if the purpose of the writ petition was only to challenge the election of the appellant on the alleged ground of his being a defaulter then we would have fell no hesitation to declare at once that the writ petition was not maintainable. Indeed, we have already held while rejecting CPSLA No.21 of 1988 (quoted in the affidavit-in-opposition) that “such questions as to disqualification, etc. which are questions of fact are better settled upon evidence which can be done more appropriately before a Tribunal.In the summary proceeding under Article 102 it is not desirable and, more often than not, not possible to record a finding as to a disputed question of fact.”

The better view would have been to hold that in view of the facts of the case, it was not desirable to decide the issue in the writ jurisdiction without consideration of all the evidence-both oral and documentary.”

30. In the case of National Board of Revenue vs. Abu Saeed Khan and others reported in 18 BLC (AD) 116 (2013) wherein it is held,

“Constitution of Bangladesh, 1972-Article 102(2)Public Interest Litigation-The para-meters within which the High Court Division should extend its discretionary jurisdiction in entertaining a PIL.

1. Before entertaining a petition the Court will have to decide the extent of sufficiency of interest and the fitness of the person invoking the discretionary jurisdiction.

2. The court which considering the question of bonafide in a particular case will have to decide as to why the affected party has not come before it and if it finds no satisfactory reason for non appearance of such affected party, it may refuse to entertain the petition.

3. If a petition is filed to represent opulent members who were directly affected by the decision of the Government or Public Authority, such petition would not be entertained.

4. The expression ‘person aggrieved’ used in Article 102(1) means not any person who is personally aggrieved but one whose heart bleeds for the less fortunate fellow beings for a wrong done by any person or authority in connection with the affairs of the Republic or a Statutory Public Authority.

5. If the person making the application on enquiry is found to be an interloper who interferes with the action of any person or authority as above which does not concern his is not entitled to make such petition.

6. The Court is under an obligation to guard that the filing of a PIL does not convert into a publicity interest litigation or private interest litigation.

7. Only a public spirited person or organization can invoke the discretionary jurisdiction of the Court on behalf of such disadvantaged and helpless persons.

8. The Court should also guard that its processes are not abused by any person.

9. The Court should also guard that the petition is initiated for the benefit of the poor or for any number of people who have been suffering from common injury but their grievances cannot be redressed as they are not able to reach the Court.

10. It must also be guarded that every wrong or curiosity is not and cannot be the subject matter of PIL.

11. No petitions will be entertained challenging the policy matters of the Government, development works being implemented by the Government, Order of promotion or transfer of public servants, imposition of taxes by the competent authority.

12. The Court has no power to entertain a petition which trespasses into the areas which are reserved to the executive and legislative by the Constitution.

13. A petition will be entertained if it is moved to protect basic human rights of the disadvantaged citizens who are unable to reach the Court due to illiteracy or monetary helplessness.

14. Apart from the above, the following some categories of cases ‘which will be entertained;

a) For protection of the neglected children.

b) Non-payment of minimum wages to workers and exploitation of casual workers complaints of violation of labour laws (except in individual case).

c) Petitions complaining death in jail or police custody; or caused by law; enforcing agencies.

d) Petitions against law enforcing agencies for refusing to register a case despite there are existing allegations of commission of cognizable offences.

e) Petitions against atrocities on women such as, bride burning, rape, murder for dowry, kidnapping.

f) Petitions complaining harassment or torture of citizens by police or other law enforcing agencies.

g) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance or heritage and culture, antiques, forest and wild life.

h) Petitions from riot victions.

31. In the case of AFM Shah Alam vs. Mujibul Huq & ors reported in 41 DLR (AD) (1989) 68 wherein it is held,

“Reading the entire law and the rules we have come to this conclusion that the real and larger issue is completion of free and fair election with rigorous promptitude. Hence, election being a long elaborate and complicated process for the purposes of electing public representatives it is not possible to lay down guidelines by any court because all the exigencies cannot be conceived humanly nor the vagaries of people contesting the election can be fathomed. In a dispute the issue is to be raised and evidence adduced for adjudication by a competent Tribunal. This function has been given to the Election Tribunal and to nowhere else. The Election Commission has been given power to decide certain matters but such enquiry will not come within the purview of judicial enquiry because the power to decide judicially is different from deciding administratively. By taking resort to extraordinary jurisdiction for a writ the High Court Division will be asked to enter into a territory which is beset with the disputed facts and certainly by well settled principles it is clear a writ court will not enter into such controversy.”

“The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (Coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because:

(a) …………………………………………………

(b) …………………………………………………

(c) Almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.”

In addition to the decisions referred to above of our apex Court, we may rely the rest part of the Judgment in the case of Kurapati Maria Das vs. M/S. Dr.Ambedkar Seva Samajan in Supreme Court of India Civil Appeal No.2617 of 2009 (arising out of SLP (Civil) No.15144 of 2007).

“We are afraid, we are not in position to agree with the contention that the case of K. Venkatachalam vs. A Swamickan & anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam vs. A Swamikan & Anr. [1999(4) SCC 526] Every case is an authority for what is actually decided in that. We do not find any general proposition that eve where there is a specific remedy of filing an Election petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available.

Shri Guipta, however, further argued that in the present case what was prayed for was a writ of quo-warranto and in fact the election of the appellant was not called in question. It was argued that since the writ petitioners came to know about the appellant not belonging to the Scheduled Caste and since the post of the Chairperson was reserved only for the scheduled caste, therefore, the High Court was justified in entering into that question as to whether he really belongs to scheduled cast. In short, the learned counsel argued that independent of the election of the appellant as a ward member or as a chairperson; his caste itself was questioned in the writ petition only with the objective to see whether he could continue as the chairperson. This argument is clearly incorrect as the continuance of the appellant as the chairperson was not dependent upon something which was posterior to the appellant’s election as chairperson. It is not as if some event had taken place after the election of the appellant which created a disqualification in appellant to continue as the firstly, as a ward member and secondly as the chairperson which election was available only to the person belonging to the scheduled caste and so, also the post of chairperson. Therefore, though indirectly worded, what was in challenge in reality was the validity of the election of the appellant. According to the writ petitioners, firstly the appellant could not have elected as a ward member nor could he be elected as the chairperson as he did not belong to the scheduled caste. We can understand the eventually where a person who is elected as a scheduled caste candidate, renounces his caste after the elections by conversion to some other religion. Then it is not the election of such person which would be in challenge but his subsequently continuing in his capacity as a person belonging to a particular caste. This counsel for the appellant rightly urged that the question of caste and the election are so inextricably connected that they cannot be separated. Therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the validity of the election of the appellant, though apparently the petition is for the writ of quo-warranto.

The Counsel for the appellant rightly urged that the question of caste and the election are so inextricably connected that they cannot be separated. Therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the validity of the election of the appellant, though apparently the petition is for the writ of quo-warranto.

In conclusion their Lordships held, ‘‘Under such circumstances, we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the first of the Electricity Board where the appellant was working . This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act.”

Again merely because the appellant was described as being a Christian in the service records did not mean that he appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unnecessary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favor declaring him to be belonging to Scheduled Caste and further the appellant’s status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to entire into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant ‘converted’ to Christianity. Now, it was not nobody’s case that the petitioner ever was converted nor was it anybody’s case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this case.

It was further held that, “If it was for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance.”

Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition.

We, therefore, allow this appeal by setting aside two judgments one of the learned Single Judge and the other of the Division Bench of the High Court filed in appeal and direct the dismissal of the writ petition.”

32. In the case of New India Tea Company Ltd. vs. Bangladesh and others reported in 31 DLR(AD) (1979) 303 wherein it is held,

“Mr. S.R. Pal, Counsel for the appellant, submitted that the learned Judges of the High Court were wrong in deciding the disputed question of facts relating to title to the land which could only have been done by taking proper evidence, oral and documentary. Whether the relinquishment by Hiralal

Mukherjee, Manager of Ramgarh Tea Estate in whose favour the land was originally settled legally transferred title in favour of the Union Agency Ltd. depended on the decision as to whether a registered document was necessary to effect the relinquishment. The learned Counsel also submitted that the decision as to whether the Union Agency Ltd. was a part and parcel of the appellant-company required investigation into facts. It appears that the High Court did not believe the genuineness of the rent receipt dated 25.3.67 produced by the appellant-company in support of its claim that rent was being paid by the company to the Government and it also found discrepancies with respect to the Khatian number mentioned in the rent receipt. The land in dispute was recorded as Khatian No.1/36 after the mutation case No.2/1, whereas the rent receipt showed that rent was being paid in respect of land in Khatian No.1/38. Further, there was no reason as to why the appellant-company whose name was not recorded in the Khatian should pay rent in respect of the land of which M/s. Union Agency Ltd. was the recorded tenant. The questions raised by the learned Counsel relate to the title of the appellant-company which depend on facts which are in dispute and can only be settled after full evidence has been properly taken. Mr. Sultan Hossain Khan, the learned Deputy Attorney General who appeared on behalf of the Government also conceded that where facts are disputed; the High Court, in exercising jurisdiction under Article 102 of the Constitution should not proceed to settle the disputed facts requiring taking of evidence. There is a long line of decisions in favour of the view that the High Court should not enter into disputed questions of fact nor decide any question as to title which require investigation into facts and taking of elaborate evidence.”

33. I have also examined the decisions as referred by the learned counsel for the petitioner. On perusal of the same I am of the view that since the Writ Petition is itself not maintainable because of the disputed question of fact as such these are not relevant or considerable in any manner.

34. Regarding writ of quo warranto the fundamental Rule is that the petition has to be in greater public interest. Any such attempt for securing private interest cannot be encouraged. In the case in hand it has been revealed that the petitioner has far reaching personal interest and intends to use this as weapon to defeat his political rival. Apart from that it is now a well settled proposition of law is that if there is any alternative remedy available no writ petition even in the form of quo warranto is liable to be maintained.

35. The proceeding under Art. 102(2) of the Constitution is a summary one and it is decided on the statements made on affidavits filed by the parties and the documents annexed to the application and the affidavit-in-opposition. Hence it is often held that the court will decline to exercise jurisdiction when the application involves resolution of disputed question of fact. The decision reported in 42 DLR(AD) 13 lends support to the above contention. In this summary proceeding examination of disputed question of fact which is a complicated in nature and as a general rule cannot be undertaken nor investigation of title to property made and it is neither desirable nor advisable to enter into the merit and record a finding as to disputed question of fact. The decision reported in 51 DLR (AD) 232 lends support to the above order. The court will neither decide the complicated question of title nor disputed questions of fact relating to damages or compensation.

36. The rule is that the court will decline to exercise the jurisdiction only when the dispute as regards facts is such that the dispute cannot be reasonably resolved on the facts pleaded and documents produced before the court. The decision reported in 19 DLR (SC) 228 lends support to the above order.

37. In the instant writ petition it clearly transpires that the contentions as raised by the parties can only be determined by adjudication of the factual aspects and for that a detailed investigation is requires which includes examination of evidence as well as examination of witnesses. The contentions as raised thus are highly disputed question of facts which in the line of the above authorities cannot be adjudicated in a summary proceedings under Article 102 of the Constitution of the republic.

38. Considering the facts and circumstances, discussion made hereinabove as well as the decisions as referred to, I am of the view that the instant writ petition is not maintainable.

39. Accordingly the Rule is discharged. However, there will be no order as to cost.

Ed.

Writ Petition No. 5556 of 2014

Shambhu Nath Saha Vs. Alfazuddin Ahmed & others, 41 DLR (AD) (1989) 27

Case No: Civil Aappeal No. 18 of 1987

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Md. Aftab Hossain,Mr. T. H. Khan,,

Citation: 41 DLR (AD) (1989) 27

Case Year: 1989

Appellant: Shambhu Nath Saha

Respondent: Alfazuddin Ahmed and others

Subject: Land Law,

Delivery Date: 1988-5-4

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Shambhu Nath Saha
...........................Appellant
Vs.
Alfazuddin Ahmed & ors
..........................Respondents

Judgment
May 4, 1988.

The Transfer of Property Act, 1882
Section 109
Attornment
It is found that the question of attornment was not raised either in the pleading or in the proceeding at any time. As a matter of fact, the question of attornment does not arise at all because the defendant's case is that he was never a tenant under anybody including the plaintiff’s predecessors. He denied having paid any rent at all to the heirs of late Mr. Zakir Hussain. The plaintiffs having acquired good title from the heirs of late Mr. Zakir Hossain have stepped into the shoes of the landlord and in view of the findings made by the trial court that the defendant was a tenant under the plaintiff the defendant cannot evade ejectment as a tenant from the suit premises. Thus the appeal is dismissed…………(10&11)

Cases Referred to-
Amar Chandra Saha vs. Ajit Kumar Das, 33 DLR (AD) 37.

Lawyers Involved:
T. H. Khan, Senior Advocate, Lutfur Rahman Mondal, Advocate with him, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondents.

C. A. No. 18 of 1987

JUDGMENT

A.T.M. Afzal, J.

The defendant in a suit for ejectment of monthly tenant is the appellant in this appeal by leave.

2. The suit being S.S.C. Suit No. 58 of 1979 I was decreed by the S.C.C. Judge (Sub-Judge, 3rd Court) Dhaka and on revision by the appellant a Single Bench of the High Court Division, Dhaka confirmed the said decree by judgement and order dated 17 March 1987 in Civil Revision No. 568 of 1985.

3. At the time of granting leave several question were raised on behalf of the appellant but at the 1 hearing of the appeal Mr.T.H. Khan, learned counsel for the appellant, confined his submission to 1 only one point i.e. whether the trial court and the High Court Division were correct in holding that there existed relationship of landlord and tenant between the plaintiffs and the defendant.

4. Plaintiffs case, briefly, is that the defendant has been occupying the suit premises as a tenant under one Begum Zohora Hossain at a rental of Tk. 150/- per month. The said Begum and her co-sharers Zahid Hussain and others transferred the suit holding along with other holdings, of the plaintiffs by registered sale deeds dated 28.2.1978 and thus the defendant became a tenant under the plaintiffs by operation of law. He did not pay any rent since 1968 and thus was a defaulter. The plaintiff required the suit premises for rebuilding purposes and therefore wanted the defendant to vacate the same. On his failure to do so a notice under Section 106 of the Transfer of Property Act was served upon the defendant but even then he did not vacate. Hence the suit.

5. The defendant denied the plaintiffs' case including their title and suited further that he was tenant neither under Begum Zohora Hossain nor under the plaintiffs. His case is that the suit holding originally belonged to one Raghu Nath Das and the defendant's great grand-father was permitted 1.0 use and occupies the suit premises since long before 1947. After independence of the country in 1947 one Abdul Kader Sarder demanded rent from the defendant upon occupying the entire holding and the defendant in order to avoid trouble paid him money in lump sum. After death of Abdul Kader Sarder in 1956 nobody claimed ownership of the suit holding. Thereafter somebody demanded rent as representative of the heirs of late Mr. Zakir Hossain, Ex-Governor of the then East Pakistan on the plea that they exchanged their property in India with the owner of the suit holding by exchange deed in 1949. Defendant's further case is that since they failed to show any valid document the defendant did not admit them as landlord nor paid any rent.

6. The S.C.C. Judge upon a consideration of both oral and documentary evidence found that from Ext. 5 series and Ext. 11 it was clear that the defendant had been a monthly tenant under Begum Zohora Hossain in respect of the suit premises at a rental of Tk. 150/- payable according to English Calendar month and since the plaintiffs became owner of the suit premises by purchase the defendant became a monthly tenant under them. It was also found that the defendant cannot deny the title of the plaintiffs being a tenant and that he was a defaulter upon whom notice under Section 106 Transfer of Property Act was duly served.

7. It is found from the High Court Judgement that submission was mainly made on behalf of the defendant assailing the title deeds (Ext. 24 series) of the plaintiffs. The learned Judge upon a consideration of the submissions found that the plaintiffs have acquired valid title to the suit premises from the heirs of Mr. Zakir Hossain on the basis of Ext. 4 series. The learned Judge further observed in his judgment that the findings of fact made by the learned S.C.C. Judge were not challenged before him although the jurisdiction to decide the suit was challenged.

8. It is evident from the impugned judgment that the question as to existence of relationship of landlord and tenant between the parties was not specifically raised in the High Court Division. Even then we heard submission on behalf of the appellant as to the said question as no other point was pressed save the same.

9. Ext. 5 certified copy of a petition under Section 19(1) of the Premises Rent Control. Ordinance 1963 shows that the defendant filed H.R. Case No. 229 of 1979 against Begum Zohora Hossain for depositing rent of the suit premises and it was stated by the defendant in the said petition that Begum Zohora Hossain had been realizing rent from the defendant since 1957 at a monthly rental of Tk. 150/-. This house-rent case was dismissed on contest and the defendant preferred Misc appeal No. 77/83 but subsequently withdrew the same. From Ext. 11 it appears that the defendant filed title suit No. 266 of 1982 against one Haji Khabiruddin and others and in that suit he filed a petition for injunction slating that he had been a tenant in respect of the suit premises under the original owner Raghu Nath and thereafter he admitted Zakir Hossain as this landlord and upon his death paid rent to his daughter Zohora Hossain till 1957. Besides oral evidence these are the two documents on the basis of which the trial Court found that the defendant was tenant under the predecessor-in-interest of the plaintiffs.

10. Mr.T.H. Khan could hardly advance any submission in respect of the said documents relied on by the trial court for finding that the defendant was a tenant under Begum Zohora Hossain. Mr. Khan now tried to argue on the basis of a case reported in XXXIII DLR (AD) 37 (Amar Chandra Saha Vs. Ajit Kumar Das) that mere deposit of rent in the name of Begum Zohora Hossain did not ipso facto prove attornment by the defendant to the plaintiffs predecessors. This argument, evidently one of last resort, cannot be considered because it is found that the question of attornment was not raised either in the pleading or in the proceeding at any time. As a matter of fact, the question of attornment does not arise at all because the defendant's case is that he was never a tenant under anybody including the plaintiff’s predecessors. He denied having paid any rent at all to the heirs of late Mr. Zakir Hussain.

11. The plaintiffs having acquired good title from the heirs of late Mr. Zakir Hossain have stepped into the shoes of the landlord and in view of the findings made by the trial court the defendant cannot evade ejectment as a tenant from the suit premises. We find no substance in the only contention raised on behalf of the appellant that there existed no relationship of landlord and tenant between the parties.

The appeal is, accordingly, dismissed without any order as to cost.

Ed.

Shamim Akter Shama and another Vs. Sontosh Kumar Das and others 2016 (2) LNJ 251

Case No: Civil Revision No. 1816 of 2015

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mr. Aminul Haque,Mr. Faisal Mahmud Faizee,Mr. Md. Abdus Salam,Mrs. Ayesha Akhter,Mr. Ahsanur Rahman,Mr. Rajib Kumar Chakrabarty,,

Citation: 2016 (2) LNJ 251

Case Year: 2016

Appellant: Shamim Akter Shama and another

Respondent: Sontosh Kumar Das and others

Subject: Civil Law,

Delivery Date: 2015-11-08

Shamim Akter Shama and another Vs. Sontosh Kumar Das and others 2016 (2) LNJ 251
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J
And
Sheikh Md. Zakir Hossain, J.
Judgment on
08.11.2015

}
}
}
}
}
}
}

Shamim Akter Shama and another
...Defendant Petitioners
-Versus-
1. Sontosh Kumar Das
. . .Plaintiff-opposite party.
2. A. H. M. Bahauddin and others
. . . Proforma-defendant-Opposite Parties

Code of Civil Procedure (V of 1908)
Order VI Rule 17

It transpires that it is a definite case of the plaintiff that he was dispossessed within six months before institution of the suit. Thereby he instituted the suit under Section 9 of the Specific Relief Act for summarily relief. During pendency of the suit he sought for amendment by incorporating some facts which relates to declaration of his title, recovery of Khas possession and declaration that the certain deed is fraud fraudulent, inoperative and not binding upon him. It transpires to us that proposed amendment has changed the nature and character of the suit. The proposed amendment of the plaint appears to be inconsistent, irrelevant, immaterial and contradictory of the facts of plaint. We find that one of the fundamental principles governing the amendment of the pleadings is that all the controversies between the parties as far as possible should be included and multiplicity of the proceedings avoided. The proposed amendment is not at all necessary for the purpose of determining the real questions of controversies between the parties and proper adjudication of the suit. Moreover, the respective party will prove their own case by adducing evidence, at the time of trial. . . . (14, 17 and 18)

Shafiqul Islam Chowdhury (Md.) and others Vs. Mustafizur Rahman and others, 60 DLR (AD) 42; Yar Mohd. and another Vs.. Lakshmi Das and others, AIR 1959 page -1 (Allahabad); Khaledur Reza Chowdhury (Md) Vs. Salcha Begum and others, 2 BLC (AD) 20; Pragati General Insurance Company Limited alias Pragati Insurance Ltd and others Vs. Md. Siddique Ali Mondal The Lawyers, 11 A.D.C. (2005) 927; Sultan Ahmed Vs. Purna Chandra Karmakar and others, 28 DLR-130: Shahajadpur Central Co-operative Bank Ltd. Vs. Md. Majibur Rahman and others, 18 BLD (AD) 81; Abdul Motaleb Vs. Md. Ershad Ali and others The Lawyers 11 A.D.C.- 30; Janata Bank, Bogra Vs. Saiful Islam, 206 BCR-200; Abdul Mutaleb Vs. Ershad Ali 1998 BLD (AD) 121= 4 BLC (AD) 150; Md. Khaledur Reza Chowdhury Vs. Saleha Begum and others 1997 BLD (AD) 86=2 BLC(AD) 20; S.N. Roy Chowdhury Vs. A. Jabber and others, 1994 BLD-229=46 DLR 273; Moyjuddin Mondal Vs. Bena Rani Das and others, 45 DLR 154 and M.A. Jahangir and others Vs. Abdul Malek and others 41 DLR 389 ref.

Civil Revision No. 1816 of 2015

Mr. Faisal Mahmud Faizee, Advocate, with
Mr. Md. Abdus Salam, Advocate,
. . . For the petitioners.
Mr. Md. Aminul Haq, Senior Advocate with
Mrs. Ayesha Akhter, Advocate
Mr. Ahsanur Rahman, Advocate and
Mr. Rajib Kumar Chakrabarty, Advocate,
. . . For the opposite party no.1.
No one appears,
. . . For opposite party Nos. 2-4.

JUDGMENT

Syed Md. Ziaul Karim, J:

By this Rule, the petitioners have challenged the legality and propriety of the order dated 08-03-2015 passed by learned Joint District Judge, Second Court, Dhaka, in Title Suit no. 850 of 2013 allowing an application for amendment of the plaint under Order VI Rule 17 and section 151 of the Code of Civil Procedure( briefly as the Code).

Materials facts leading to this Rule are that the plaintiff instituted Title Suit no. 1036 of 2011, subsequently re-numbered as Title Suit no. 850 of 2013 in the first Court of Joint District Judge, Dhaka, under Section 9 of the Specific Relief Act for recovery of possession into the flat described in the schedule land of the plaint stating that Mrs. Safia Ashraf Ali wife of late Syed Ashraf Ali being the owner of the suit plot entered into an agreement with the proforma defendant nos. 3-5 for construction of multistoried building and executed registered power of attorney being deed no. 2202 dated 22-05-2003 who later proposed to transfer the suit flat to him and he agreed to purchase the same at a consideration of Tk. 9,58,500/-. Later he purchased the suit flat by a registered kabala deed no. 6981 dated 24-09-2008 and the possession was handed over to him. He has been paying rent of the flat by mutating his name and took loan for Tk.21,00,000/- from Janata Bank on 14-10-2009 by mortgaging the deed. Subsequently the defendant no.1 dispossessed him on 05-07-2011. Hence the suit.
Defendant nos. 1 and 2 contested the suit by filing written statement denying all materials allegations made in the plaint.
In suit, the plaintiff by an application dated 29-04-2014 sought to amend his plaint under Order VI Rule 17 read with Section 151 of the Code for incorporating some facts along with the following facts:
1. বাদীর আরজির ১২ নং পৃষঠার ২য় লাইনে ′′হওয়ার ′′শব্দের পর ′′টাকার′′ শব্দের পূর্বে এর বেদখলে হওয়ার ৬ মাসের মধ্যে মোকদ্দমা দায়ের করায় নালিশী সম্পত্তি বর্তমান বাজার মূল্য ৯,৫৮,৫০০/- টাকা অত্র মোকদ্দমার তায়দাদ করিয়া তদুপরি মোট ১৯,১৭০/- টাকা এর ৫০% ৯,৫৮৫/- ′′বাক্যটি কর্তিত হইয়া তদসহলে′′ ২নং বিবাদীর নামীয় দলিলের মূল্য ২৫,৫০,০০০/- (পঁচিশ লক্ষ পন্ব·াশ হাজার) টাকা ধার্য্য করা হইল এবং স্বত্ব ঘোষণা ও খাস দখল মোকদ্দমা বিধায় আইনের বিধান মতে সর্ব উচ্চ কোর্ঢ~ ফি ৪৬,০০০/-(ছিচল্লিশ হাজার) বাক্য গুলো আরজিতে প্রতিসহাপিত হইয়া আরজি সংশোধিত হইবে z
2. বাদীর আরজির ১২ নং পৃষ্ঠার ৯নং দফার ৯নং লাইনের নিচে ′′ঘ′′ শব্দ বসিবে তৎপর নালিশী ′′ক′′ তফসিলের সম্পত্তিতে বাদীর স্বত্ব আছে মর্মে ঘোষণার এক ডিএ্রী দিতে ′′বাকীটি সংযোজিত হইয়া আরজি সংশোধিত হইবে এবং তৎপর ′′ঙ′′ শব্দ বসিবে তৎপর ২নং বিবাদী নামীয় বিগত ০৮-০১-২০১৪ ইং তারিখে রেজিষ্ট্রিকৃত দলিল নং ৮৩টি ভুয়া বে-আইনী অ~~বধ অকার্য্যকর পণ প্রবৃওি হীন তন্ব·কতা পূর্ণ অসৎ উদ্দেশ্য প্রণোদিত কাগজে দলিল বিধায় উও্র দলিলটি বাদীর উপর বাধ্যকর নহে মর্মে ঘোষণার ডিএ্রী দিতে ′′ বাক্য কয়টি আরজিতে সংযোজিত হইয়া আরজি ও রেজিষ্টার সংশোধিত হইবে z ′
Contesting defendants challenged the application by filing written objection stating that the proposed amendment will chance the nature and character of the suit. So such amendment cannot be entertained.
After hearing the learned Judge allowed the application for amendment of the plaint by the impugned order.
Feeling aggrieved the defendant nos. 1 and 2 as petitioners preferred the instant revision and obtained the present Rule.
The learned Advocate appearing for the petitioners seeks to impeach the impugned order on three fold arguments :

Firstly- The plaintiffs initially instituted the suit under Section 9 of the Specific Relief Act but later he incorporated some facts of declaration of title and recovery of khas possession along with the declaration that certain deed is fraud, fraudulent and not binding upon him which virtually changed the entire nature and character of the suit.
Secondly- Relieves claimed before amendment cannot run simultaneously with that of the later relieves claimed after amendment.
Third and lastly- The learned Judge without considering such facts and law erroneously allowed the amendment which is an error of law resulting in an error in the decision occasioning failure of justice.

In support of his contentions he refers the following cases :
1. In the case of Shafiqul Islam Chowdhury (Md.) and others Vs Mustafizur Rahman and others 60 DLR(AD) 42 held:

″ In the instant case, the amendment sought for will not chance the character of the suit or the plaint; rather such amendment is capable of determining the real question in controversy. ″

In the case of Yar Mohd. and another vs. Lakshmi Das and others AIR 1959 page -1 (Allahabad) held:

″ Specific Relief Act (1877), S. 9- Scope and object- Suit under S.9 and ordinary suit for possession- Distinction.
Possession is prima facie evidence of title and if a person who is in possession is dispossessed he has a right to claim back possession from the person who dispossesses him. In an ordinary suit of that kind if the plaintiff succeeds in establishing his title as well as possession he is bound to succeed. Even if he is unable to prove his title he can succeed on the basis of prior possession alone. But the suit can easily be defeated if the defendant succeeds in proving a good title in himself or another. In that case the presumption in favour of the plaintiff is displaced. In such a suit, therefore, the title of both the parties can be brought in issue and can be considered by the court. A suit under S. 9 of the Specific Relief Act is however an entirely different kind of action. That section gives a special privilege to persons in possession who take action promptly. In case they are dispossessed it entitles them to succeed simply by proving (1) that they were in possession, (2) that they have been dispossessed by the defendant, (3) that the dispossession is not in accordance with law, and (4) that the dispossession took place without six months of the suit.
No question of title either of the plaintiff or of the defendant can be raised or gone into in that case. The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is however always subject to a regular title suit and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession.″

The learned Advocate appearing for the opposite party no.1 submits that the proposed amendment will not change the nature and character of the suit rather the same is necessary for the purpose of determining the real question in controversy between the parties. He adds that the proposed amendment will settle the question whether during the pendency of the suit the plaintiff was dispossessed. He lastly submits that considering such aspect the learned Judge of the Court below allowed the proposed amendment of the plaint, which calls for no interference by this Court.
In support of his contentions he refers the following cases:

In the case of Khaledur Reza Chowdhury (Md) Vs. Salcha Begum and others 2 BLC(AD) 20 held:

″ Code of Civil Procedure, (V of 1908)
Order VI rule 17
Subsequent events can be incorporated in the pleading of an earlier suit although it was stated in the later suit- An application for amendment of plaint was filed in the earlier suit for impleading the subsequent purchasers as defendants and for replacing the prayer for confirmation of possession with a prayer for recovery of possession of the suit land which was allowed by the learned Subordinate Judge but the High Court Division while disallowing the amendment of plaint on the ground that the facts of a later suit cannot be incorporated in the pleadings of an earlier suit and that the amendment sought for a malafide and it made a mountain of a molehill in writing an unnecessary lengthy judgment on such a simple matter as the appellant still retains the full right to obtain complete relief in the earlier title suit by incorporating facts and prayers which arose out of subsequent events, no matter whether those facts and prayers were incorporated in the subsequent suit when the two suits are inextricably linked and are not suits of different nature and when the appellant wants to bring all the parties involved in original and subsequent transaction it is beyond comprehension of this Court why should any one find a malafide motive in trying to such amendment. ″

In the case of Pragati General Insurance Company Limited alias Pragati Insurance Ltd and others vs. Md. Siddique Ali Mondal The Lawyers 11 A.D.C. (2005)- 927 held:

″The amendment may be allowed at any stage of the proceeding before or after the trial or even after the judgment or on appeal if justice require and no blame would be attached to the party, the materiality of the amendment should always be looked at so as to decide the real controversy between the parties allowing amendment of the pleadings.″

In the case of Sultan Ahmed Vs. Purna Chandra Karmakar and others 28 DLR-130 held:

″Amendment of the plaint can be allowed when it does not alter the averment of the plaint.
Where an amendment of the plaint in a suit does not alter the averment of the plaint but it is sought in view of the subsequent happenings after the filing of the suit, such prayer for amendment can be granted.
Ordinarily, the decree in a suit should accord with the right of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of the circumstances, becomes inappropriate, or that it is necessary to have the decision of the Court in the altered circumstances in order to shorten litigation or to do complete justice between the parties, it is incumbent upon a Court to taken notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made, leave to amend may be granted under Or. VI, r. 17 for this purpose. ″

In the case of Shahajadpur Central Co-operative Bank Ltd. Vs. Md. Majibur Rahman and others 18 BLD(AD) 81 held:

″Order VI Rule 17
Order VI Rule 17 of the Code –provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and necessary for the purpose of determining the real question in controversy between the parties. As the proposed amendment will settle the question whether during the pendency of the suit the plaintiff was dispossessed by defendant no.1 from the suit land or not it will end all pending controversies between the parties and it will not amount to a change in the nature and character of the suit. The proposed amendment is allowed. ″

In the case of Abdul Motaleb Vs. Md. Ershad Ali and others The Lawyers 11 A.D.C.- 30 held:

″ The principle is that the nature and character of a suit do not change so long as the fundamental character of the suit remains the same. A suit for declaration of title, recovery of possession and/or for partition is essentially based on a common claim of the plaintiff which may call for aforesaid different relief or relies in different situations. ″

In the case of Janata Bank, Bogra, Vs. Saiful Islam 206 BCR-200 held:

″(a) Where the amendment is sought to avoid multiplicity of suits, or where the parties in the plaint are wrongly described, or where some facts are omitted from the plaint by inadvertence, or where there is a mistake in the statement of the case of action, or a bonafide omission in making the necessary averments in the plaint, or a suit is brought under a wrong Act, the amendment should be allowed.

In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.
The point for consideration whether the impugned order calls for interference by this Court.
On going to the materials on record it transpires that it is a definite case of the plaintiff that he was dispossessed within six months before institution of the suit. Thereby he instituted the suit under Section 9 of the Specific Relief Act for summarily relief. During pendencing of the suit he sought for amendment by incorporating some facts which relates to declaration of his title, recovery of Khas possession and declaration that the certain deed is fraud fraudulent, inoperative and not binding upon him.
For the convenience of understanding the Provisions of Order VI Rule 17 of the Code reads as hereunder:

17- The Court may at any stage of the proceedings allow either party to alter on amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties.

Therefore, Order VI Rule 17 of the Code provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such term as may be just and necessary for the purpose of determining the real question of controversy between the parties. It is pertinent to point out that if a person who is in possession is dispossessed he has right to claim back possession from the person who dispossessed him. Even if he is unable to prove his title he can succeed on the basis of prior possession alone. A suit under section 9 of the Specific Relief Act is however an entirely different kind of action. This section gives a special privilege to persons in possession who takes action promptly. The proposed amendment are absolutely the subject-matter of regular suit. This will not end all pending controversies between the parties and will amount to a change the nature and character of the suit.
It transpires to us that proposed amendment has changed the nature and character of the suit. The proposed amendment of the plaint appears to be inconsistent, irrelevant, immaterial and contradictory of the facts of plaint. We find that one of the fundamental principles governing the amendment of the pleadings is that all the controversies between the parties as far as possible should be included and multiplicity of the proceedings avoided.
Therefore, we hold that the proposed amendment is not at all necessary for the purpose of determining the real questions of controversies between the parties and proper adjudication of the suit. Moreover, the respective party will prove their own case by adducing evidence, at the time of trial.

In the case of Abdul Mutaleb Vs. Ershad Ali 1998 BLD (AD) 121= 4 BLC (AD) 150 held:
"Since all rules of the Court are intended to secure the proper administration of justice, it is essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment may be enjoyed and, as such, it should always be liberally exercised. The only limitation in allowing an amendment of the plaint is that the proposed amendment should not change the fundamental character and nature of the suit. The settled law is that amendment of pleadings may be allowed at any stage of the proceedings for the purpose of determining the real questions in controversies between the parties. "

This view receives support in the cases of Md. Khaledur Reza Chowdhury Vs. Saleha Begum and others 1997 BLD(AD) 86=2 BLC(AD) 20, S.N. Roy Chowdhury Vs. A. Jabber and others 1994 BLD-229=46 DLR 273. Moyjuddin Mondal Vs. Bena Rani Das and others 45 DLR 154 and M.A. Jahangir and others Vs. Abdul Malek and others 41 DLR 389.
Therefore, the learned Judge of the Court below without proper appreciating the real question of facts and law allowed the application for such amendment, thereby committed an error of law resulting in an error in the decision occasioning failure of justice.
Moreover the impugned order in its entirety is not well founded in the facts and circumstances of the case. So, the grounds urged and contentions advanced by the learned Counsel for the opposite party no.1` are not the correct exposition of law and facts. However, we have gone through the decisions as referred by him. We are in respectful agreement with the principles enunciated therein but the facts leading to those cases are distinguishable to that of the instant case. Therefore, we are unable to accept his submissions. On the contrary, the submissions advanced by the learned Counsel for the petitioners prevail and appear to have a good deals of force.
In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned order suffers from legal infirmities which calls for interference by this Court. Thus the Rule having merit succeeds.
In the result, the Rule is made absolute without any order as to cost. The impugned order dated 08-03-2015 passed by learned Joint District Judge, Second Court, Dhaka, in Title Suit no. 850 of 2013 allowing amendment of the plaint is hereby set aside. The application for amendment dated 29-04-2014 is rejected. The suit shall proceed in accordance with law.

The office is directed to communicate the order at once.
Ed.

Shamima Akhtar Vs. Md. Tofazzal Hussain and others

Case No: Civil Review Petition No. 31 of 2006.

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Abdus Salam Khan,,

Citation: 14 MLR (AD) (2009) 38

Case Year: 2009

Appellant: Shamima Akhtar

Respondent: Md. Tofazzal Hussain and others

Subject: Property Law,

Delivery Date: 2007-01-31

Shamima Akhtar Vs. Md. Tofazzal Hussain and others
14 MLR (AD) (2009) 38

Supreme Court
Appellate Division
(Civil)

Present:
Syed J. R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J

Shamima Akhtar.........................Petitioner
Vs.
Md. Tofazzal Hussain and others ...........Respondents

Judgment
January 31, 2007.

Bangladesh Supreme Court Appellate Division Rules, 1988
Rule 24

When the issues were settled and finally decided upon consideration of the evidence on record, the review of the judgment cannot be made. Review does not mean rehearing of the matter already heard and disposed of on merit.

On perusal of the judgment of this Court it appears that this Court considered the facts and circumstances of the case and the submissions made by the learned Counsel and finding no ground for interference the Civil Petition has been dismissed. The point now urged by the learned Counsel has therefore no leg to stand. A review does not mean rehearing of the same matter already heard and disposed of on merit. …. (9)

Lawyers Involved:
Abdus Salam Khan, Senior Advocate instructed by Mrs. Mahmuda Begum, Advocate-on-Record-For the Petitioner.
Not represented-the Respondents.

Civil Review Petition No. 31 of 2006.
(From the judgment and order dated 19.03.2006 passed by this Division in Civil Petition for Leave to Appeal No. 1196 of 2003.)

Judgment

Amirul Kabir Chowdhury J.- Defendant petitioner Shamima Akhtar seeks review of the judgment and order dated 19.03.2006 passed by this Court in Civil Petition for Leave to Appeal No.1196 of 2003 dismissing the said petition.

2. The respondent Nos.1 to 5 as plaintiffs instituted Title Suit No. 86 of 1992 for declaration of title and khas possession which was renumbered as Title Suit No. 21 of 1994.

3. The plaintiff's case, in short, is that Sheikh Jabbar Ali, Abed Ali and 4 others were recorded tenants in C.S. Khatian No.96 containing 19 plots including Plot No.800 measuring .70 acres, that Sheikh Jabbar Ali's share was ½ and Abed Ali's share was 1/12 in the said khatian and that .52 acres of land as P.S. and S.A Plot No. 979 had been in exclusive possession of Sheikh Jabbar Ali and P.S. Khatian No.138 was recorded accordingly and that Sheikh Jabbar Ali died leaving two sons, namely, Abdus Sattar, Fazu Mia and two daughters, namely, Amironnessa and Samirunnessa one son and one daughter of the previous owner, namely, Abdus Sattar and Amirunnessa sold .22 acres of land out of .52 acres of land to Chini Mia on 26.08.1961 and the name of the purchaser was accordingly recorded in S.A. Khatian and R.S. Khatian. Chini Mia transferred .473 acres (mentioned in 'Ka' schedule) to the plaintiffs by a registered kabala dated 26.06.1979 who possessed the property through cultivation of vegetable in some portion and also erected a tin shed room in part of the suit land and that in 1991 the defendant No. 2 dispossessed the plaintiffs by force from the Kha schedule land measuring .0330 acres and also dismantled the dwelling structure of the plaintiffs and hence the plaintiff felt constrained to institute the suit.

4. The defendant Nos. 1 and 2 contested the suit contending, inter alia, that the suit Plot No. 979 belonged to Abed Ali who died leaving his wife Fulmati and three sons, namely, Abdul Hai, Afzal and Taher Ali and two daughters Suratunessa and Arafatunessa and that Abed Ali transferred 10 kathas of land to Ashraf Bepari and Hossain Bepari in the year 1987 and 3 kathas of land to Nasima Begurn and Manik Fakir and again 4 kathas of land to the predecessor of the defendant No.1 and thereafter transferred 3 kathas of land to Abdul Aziz Master and that the defendant No.1 by kabala dated 30.04.1991 purchased 2½ kathas of land from Ashraf Uddin and that the defendant No.1 has been residing in the suit land and the plaintiffs having no right, title and possession the suit was liable to be dismissed.

5. The trial court after recording evidence of six witnesses of the plaintiff and four witnesses from the defendant and considering the same decreed the suit.

6. The defendant petitioners preferred Title Appeal No.253 of 1993. The lower appellate court reversed the judgment and decree of the trial court and dismissed the suit whereupon the plaintiff respondents moved the High Court Division in Civil Revision No.5399 of 1998 and a learned Single Judge of the High Court Division made the rule absolute and thereby decreed the suit.

7. Being aggrieved the defendant petitioner moved this Court in Civil Petition for Leave to Appeal No. 1196 of 2003. This Court after hearing the petitioner dismissed the petition. Hence is this petition.

8. In support of the petition Mr. Abdus Salam Khan, learned Counsel submits that the defendant's title deed was marked as exhibit "kha"; S.A. khatian and rent receipt as "C" series so as to prove collateral evidence of title and possession in the suit land but the High Court Division by non-reading of evidence was wrong to hold that the defendant has no document of possession and the Appellate Division in turn maintained the finding that plaintiffs acquired title and possession by earlier purchase and thus there is an error apparent on the face of the record.

9. On perusal of the judgment of this Court it appears that this Court considered the facts and circumstances of the case and the submissions made by the learned Counsel and finding no ground for interference the Civil Petition has been dismissed. The point now urged by the learned Counsel has therefore no leg to stand. A review does not mean rehearing of the same matter already heard and disposed of on merit.

In view of the discussion made above, the review petition is dismissed.
Ed.

Shamshad Asif Vs. Additional District Judge and others

Case No: Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998

Judge: Kazi Ebadul Hoque,

Court: High Court Division,,

Advocate: A. F. Hassan Ariff,SB Bhandary,Sayyed Shah Hussain,Shah Md. Munir Sharif,,

Citation: 52 DLR 138

Case Year: 2000

Appellant: Shamshad Asif

Respondent: Additional District Judge and others

Subject: Bankruptcy Case,

Delivery Date: 1999-06-16

Supreme Court ofBangladesh

High Court Division

(Special Original Jurisdiction)

Present:

Kazi Ebadul Hoque J

Md. Muzammel Hossain J

Shamshad Asif……………………………Petitioner

Vs.

Additional District Judge and others……….Respondents

Judgment: June 16, 1999.

Lawyers Involved:

SB Bhandary, Advocate—For the Petitioner (In Writ Petition Nos. 2792,2793, 2794, 2795 and 2796 of 1998).

Sayyed Shah Hussain, Advocate—For the Respondent No. 2 (In WritPetition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998).

AF Hassan Ariff with SB Bhandary and Shah Md. Munir Sharif,Advocates—For the Petitioner (In Writ Petition No. 2795 of 1998).

Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998.

Judgment

2. Respondent No.2 Al-Baraka Bank (Bangladesh) Ltd. filed aforesaidfive Bankruptcy Cases against the petitioner and others praying for declaringthem Bankrupt, to appoint receiver to take possession of the mortgagedproperties and other properties of the petitioner and other defendants andother reliefs on presentation of the plaints on 20-5-98. Court registered thecases and fixed 19-7-98 for hearing and directed plaintiff to publish thesummary of the plaint and copy of the order in the Daily Ittefaq and DailyInqilab. Thereafter on 19-7-98 Court fixed 26-7-9 for hearing about the plaint.Thereafter on 26-7-98 petitioner filed an application under section 28 of theBankruptcy Act, 1997 praying for dismissal of the plaint. Court also directedthe petitioner to produce books of accounts of his business and list of hisproperties and of his creditors and debtors. But the petitioner failed tocomply with the said order. Thereafter on 9-8-98 the applications for dismissalof the plaints were heard and on 12-8-98 applications under section 28 wererejected. Being aggrieved by the same petitioner moved this court and obtainedthe Rules. In all the Rules common question of law having been raised these arebeing disposed of by this judgment.

3. Learned Advocate for the petitioner after placing the petition andother materials on record submitted that court below acted illegally inrejecting the applications under section 26 of the Bankruptcy Act, 1997 withoutconsidering that after passing of decrees against the petitioner and otherguarantor mortgagor in the concerned Suits filed by the Artha Rin Adalat andexecution proceedings against the same being pending bankruptcy proceeding forrealisation of the decretal dues before the Bankruptcy Court were without isjurisdiction. He further submitted that after passing of the decrees by theArtha Rin Adalat the creditor respondent bank has been transformed into decreeholder and no longer is creditor and the guarantor mortgagors are no longerdebtors and judgment debtors and as such notices under section 9(1) (i) of theBankruptcy Act, 1997 upon the petitioner and other guarantor mortgagors arewithout lawful authority and the Bankruptcy Court acted illegally in notdismissing the plaints of the Bankruptcy Suits. He further submitted thatsection 11 of the Code of the Civil Procedure being applicable in respect ofBankruptcy proceedings under the provisions of section 8 of the said ActBankruptcy cases against the self same guarantor mortgagors against whomdecrees were passed at the instance and in favour of the self same respondent creditorbank Bankruptcy Cases are barred by the principles of res judicata.

4. Learned Advocate for the respondent Bank after placing theaffidavits-in-opposition submitted that after service of notices upon thepetitioner by the Bankruptcy Court no written objections under section 27 ofthe said Act was filed by the petitioner in any of the cases and no evidencewas adduced by any party and, as such, there was no scope for dismissal of theplaint under section 28 of the said Act on the basis of mere application. Hefurther submitted that dismissal of plaint under section 28 of the said Act canbe made by the Bankruptcy Court only after taking evidence from the parties andthere is no scope for dismissal of the plaint on an application like rejectionof the plaint under Order 7 rule 11 of the Code of Civil Procedure which has nomanner of application in Bankruptcy proceedings. He further submitted that inview of the provisions of section 33 of the said Act all pending suits or otherproceedings including execution proceedings between the parties would betransferred to the Bankruptcy Court and, as such, it cannot be said that merelybecause execution cases are pending Bankruptcy Court cannot entertain aBankruptcy Suit against the judgment debtors. He further submitted that underclause (c) of sub-section (1) of section 12 of the said Act a Bankruptcy caseis to be filed within one year from the date of occurrence of the act ofBankruptcy and under the explanation to sub-section (1) of section 28 a debtor couldbe a willful defaulter if he fails to pay any amount exceeding Taka 5.00 lacfor one year after issuance of a formal demand and, as such, there is apparentconflict between the aforesaid two provisions and a Bankruptcy case should bekept pending for one year from the date of service of a formal demand by thecreditor on the debtor for a debt exceeding Taka 5.00 lac.

5. After hearing the parties Court below held that formal demands madeby the creditor bank were proper and valid and, as such, creditor bank hasright to file the Bankruptcy Suits. It further held that defendant Nos. 1 to 4including petitioner committed act of bankruptcy as alleged. The defendantscould not produce any documents acceptable to the court that they have capacityto pay the debt and, as such, failed to prove the same. It further held thatguarantor mortgagors are necessary parties and they would get opportunity to beheard. Court below further held that petitioner failed to prove anything ascontemplated under the provision of section 28 of the said Act and, as such, heis not entitled to get relief of dismissal of the plaint.

6. Learned Advocate for the petitioner on our query stated thatneither the petitioner nor any defendant filed any written objection underSection 27 of the said Act except filing an application under section 28 of thesaid Act by the petitioner for dismissal of the plaints. Section 28 of the saidAct is as follows:-

“28. Dismissal of plaint.- 1) The Court shall dismiss a plaintpresented by a creditor, if—

a) the Court is no satisfied with the proof-

i) such creditor’s right to present the plaint;

ii) the service on the debtor of a notice of the order fixing a datefor hearing the plaint in accordance with section 22(2);

iii) the alleged act of bankruptcy, or

b) the debtor can satisfy the Court that—

i) he is able to pay his debts:—

ii) he is not a willful defaulter, or

c) the Court is satisfied that for any other cause, it is expedientthat no order of adjudication should be made.

Explanation.— In this sub-section ‘wilful defaulter’ means a debtorwho is liable for bank debt in excess of Taka. 5, 00,000.00 (five lac) for aperiod of at least one year after the issue of formal demand.

2. In the case of a plaint presented by a debtor, the Court shalldismiss the plaint if it is not satisfied about his right to present theplaint.”

8. Except the provisions of section 11 of the Code of Civil Procedureno other provisions of the said Act shall be applicable in respect of aBankruptcy proceeding. So the provisions of Order 7 rule 11 of the Code ofCivil Procedure has no manner of application in a Bankruptcy proceeding forrejection of the plant. The petitioner was under the misconception that theplaint of the Bankruptcy Case could be rejected on the basis of a mereapplication.

9. Section 33 of the said Act provides that notwithstanding anythingcontained in any other law for the time being in force, Court in which a suitor other proceeding relating to a claim for money or other property is pendingagainst a debtor shall on proof that an order of adjudication has been madeagainst him under this Act shall transfer the same to the Bankruptcy Courtwhich passed the order of adjudication. The aforesaid provision clearly showsthat in spite of pendency of a suit or proceeding against a debtor in any courtincluding Artha Rin Adalat after the order of adjudication is made undersection 30 of the said Act against the debtor such suit or proceeding shall betransferred to the Bankruptcy Court. Thus it is clear that there is no bar infiling a Bankruptcy case by the creditor against a debtor against whom a caseis pending before any other court in respect of the self same debt.

10. It is true that after passing of a decree in favour of a creditoragainst a debtor creditor is termed decree holder and debtor a judgment debtor.But the same cannot change the character of a creditor or of a debtor and, assuch, in our considered view there is bar on the part of a creditor to make aformal demand against a debtor under section 9(1)(i) of the said Act for a debtof not less than Taka 5.00 lac and, as such, there is no illegality in theformal demand made by the respondent creditor Bank on the debtors includingpetitioner on the basis of which Bankruptcy Cases have been started under theprovisions of section 12(1)(c) of the said Act within one year from the date ofoccurrence of the act of bankruptcy. Act of bankruptcy in the instant casesoccurred on the failure of the debtors including the petitioner on the expiryof 90 days from the date of service of formal demand for the debts made by therespondent creditor Bank on 15-12-97 the said Bank having filed the cases on20-5-98 the cases were within time. Under the explanation to sub-section (1) ofsection 28 of the said Act wilful defaulter means a debtor who is liable for bankdebt in excess of Taka 5.00 lac from period of at least one year after theissue of formal demand. In view of the same the Bankruptcy Court cannot decidethe cases filed by the plaintiff against the defendants until one year expired.If any Bankrupty Court decides a case before expiry of one year then it wouldbe difficult to hold a debtor a wilful defaulter in view of the aforesaidexplanation. So the Bankruptcy Court shall have to wait for one year from thedate of issuance of a formal demand for a Bank debt in excess of Taka 5.00 lacbefore passing either an order of dismissal of the plaint or order ofadjudication.

11. A Bankruptcy case is filed by the creditor for declaring a debtora Bankrupt. On the other hand, a creditor bank files a case before the ArthaRin Adalat against the debtor for realisation of the amount of debt withinterest .Thus the nature of the two suits and issues are different. Issuebefore the Artha Rin Adalat in such a suit is whether the plaintiffs areentitled to recover the amount of debt from the defendants. On the other hand,issue before the Bankruptcy Court is whether plaintiff is entitled to declarethe defendant a Bankrupt. In view of the same though section 11 of the Code ofCivil Procedure in applicable is respect of a Bankruptcy proceeding theBankruptcy suits are not barred by the principles of res judicata due topassing of decree by Artha Rin Adalat in favour of the plaintiff of theBankruptcy suits and against the defendants of those suits.

12. In the above facts and circumstances we find no merit in theseRules.

In the result, all the Rules are discharged with cost at the rate ofTaka 1,000.00 to be paid by the petitioner of each Rule to the contestingrespondent No.2.

Ed.

Source : 52 DLR 138.

Shamshad Asif Vs. Additional District Judge and others

Case No: Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998.

Judge: Kazi Ebadul Hoque,

Court: High Court Division,,

Advocate: SB Bhandary,Sayyed Shah Hussain,AF Hassan Arif,,

Citation: 52 DLR (HCD) (2000) 138

Case Year: 2000

Appellant: Shamshad Asif

Respondent: Additional District Judge and others

Subject: Property Law,

Delivery Date: 1999-06-16

Shamshad Asif Vs. Additional District Judge and others
52 DLR (HCD) (2000) 138

Supreme Court
High Court Division
(Special Original Jurisdiction)

Present:
Kazi Ebadul Hoque J
Md. Muzammel Hossain J

Shamshad Asif……………………………Petitioner
Vs.
Additional District Judge and others……….Respondents

Judgment
June 16, 1999.

Bankruptcy Act (X of 1997)
Sections 30 & 33
There is no bar in filing a Bankruptcy case by the creditor against a debtor against whom a case is pending in respect of the self-same debt.
Section 28 (1)
The Bankruptcy Court shall have to wait for one year from the date of issuance of a formal demand for a Bank debt in excess of Taka 5.00 lac before passing either an order of dismissal of the plaint or order of adjudication.

Code of Civil Procedure (V of 1908)
Section 11
Bankruptcy Act (X of 1997)
Section 28

The Bankruptcy suits are not barred by the principles of res-judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.

Lawyers Involved:
SB Bhandary, Advocate—For the Petitioner (In Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998).
Sayyed Shah Hussain, Advocate—For the Respondent No. 2 (In Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998).
AF Hassan Ariff with SB Bhandary and Shah Md. Munir Sharif, Advocates—For the Petitioner (In Writ Petition No. 2795 of 1998).

Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998.

Judgment

Kazi Ebadul Hoque J. - These five Rules were issued at the instance of the petitioner Shamshad Asif calling upon the respondents to show cause as to why orders dated 18-8-98 passed in Bankruptcy Case Nos.1 to 5 of 1998 pending in the Bankruptcy Court, Dhaka should not be declared to have been made without lawful authority and of no legal effect. At the time of issuance of Rules further proceedings of the Bankruptcy cases in question were stated.

2. Respondent No.2 Al-Baraka Bank (Bangladesh) Ltd. filed aforesaid five Bankruptcy Cases against the petitioner and others praying for declaring them Bankrupt, to appoint receiver to take possession of the mortgaged properties and other properties of the petitioner and other defendants and other reliefs on presentation of the plaints on 20-5-98. Court registered the cases and fixed 19-7-98 for hearing and directed plaintiff to publish the summary of the plaint and copy of the order in the Daily Ittefaq and Daily Inqilab. Thereafter on 19-7-98 Court fixed 26-7-9 for hearing about the plaint. Thereafter on 26-7-98 petitioner filed an application under section 28 of the Bankruptcy Act, 1997 praying for dismissal of the plaint. Court also directed the petitioner to produce books of accounts of his business and list of his properties and of his creditors and debtors. But the petitioner failed to comply with the said order. Thereafter on 9-8-98 the applications for dismissal of the plaints were heard and on 12-8-98 applications under section 28 were rejected. Being aggrieved by the same petitioner moved this court and obtained the Rules. In all the Rules common question of law having been raised these are being disposed of by this judgment.

3. Learned Advocate for the petitioner after placing the petition and other materials on record submitted that court below acted illegally in rejecting the applications under section 26 of the Bankruptcy Act, 1997 without considering that after passing of decrees against the petitioner and other guarantor mortgagor in the concerned Suits filed by the Artha Rin Adalat and execution proceedings against the same being pending bankruptcy proceeding for realisation of the decretal dues before the Bankruptcy Court were without is jurisdiction. He further submitted that after passing of the decrees by the Artha Rin Adalat the creditor respondent bank has been transformed into decree holder and no longer is creditor and the guarantor mortgagors are no longer debtors and judgment debtors and as such notices under section 9(1) (i) of the Bankruptcy Act, 1997 upon the petitioner and other guarantor mortgagors are without lawful authority and the Bankruptcy Court acted illegally in not dismissing the plaints of the Bankruptcy Suits. He further submitted that section 11 of the Code of the Civil Procedure being applicable in respect of Bankruptcy proceedings under the provisions of section 8 of the said Act Bankruptcy cases against the self same guarantor mortgagors against whom decrees were passed at the instance and in favour of the self same respondent creditor bank Bankruptcy Cases are barred by the principles of res judicata.

4. Learned Advocate for the respondent Bank after placing the affidavits-in-opposition submitted that after service of notices upon the petitioner by the Bankruptcy Court no written objections under section 27 of the said Act was filed by the petitioner in any of the cases and no evidence was adduced by any party and, as such, there was no scope for dismissal of the plaint under section 28 of the said Act on the basis of mere application. He further submitted that dismissal of plaint under section 28 of the said Act can be made by the Bankruptcy Court only after taking evidence from the parties and there is no scope for dismissal of the plaint on an application like rejection of the plaint under Order 7 rule 11 of the Code of Civil Procedure which has no manner of application in Bankruptcy proceedings. He further submitted that in view of the provisions of section 33 of the said Act all pending suits or other proceedings including execution proceedings between the parties would be transferred to the Bankruptcy Court and, as such, it cannot be said that merely because execution cases are pending Bankruptcy Court cannot entertain a Bankruptcy Suit against the judgment debtors. He further submitted that under clause (c) of sub-section (1) of section 12 of the said Act a Bankruptcy case is to be filed within one year from the date of occurrence of the act of Bankruptcy and under the explanation to sub-section (1) of section 28 a debtor could be a willful defaulter if he fails to pay any amount exceeding Taka 5.00 lac for one year after issuance of a formal demand and, as such, there is apparent conflict between the aforesaid two provisions and a Bankruptcy case should be kept pending for one year from the date of service of a formal demand by the creditor on the debtor for a debt exceeding Taka 5.00 lac.

5. After hearing the parties Court below held that formal demands made by the creditor bank were proper and valid and, as such, creditor bank has right to file the Bankruptcy Suits. It further held that defendant Nos. 1 to 4 including petitioner committed act of bankruptcy as alleged. The defendants could not produce any documents acceptable to the court that they have capacity to pay the debt and, as such, failed to prove the same. It further held that guarantor mortgagors are necessary parties and they would get opportunity to be heard. Court below further held that petitioner failed to prove anything as contemplated under the provision of section 28 of the said Act and, as such, he is not entitled to get relief of dismissal of the plaint.

6. Learned Advocate for the petitioner on our query stated that neither the petitioner nor any defendant filed any written objection under Section 27 of the said Act except filing an application under section 28 of the said Act by the petitioner for dismissal of the plaints. Section 28 of the said Act is as follows:-
“28. Dismissal of plaint.- 1) The Court shall dismiss a plaint presented by a creditor, if—
a) the Court is no satisfied with the proof-
i) such creditor’s right to present the plaint;
ii) the service on the debtor of a notice of the order fixing a date for hearing the plaint in accordance with section 22(2);
iii) the alleged act of bankruptcy, or
b) the debtor can satisfy the Court that—
i) he is able to pay his debts:—
ii) he is not a willful defaulter, or
c) the Court is satisfied that for any other cause, it is expedient that no order of adjudication should be made.
Explanation.— In this sub-section ‘wilful defaulter’ means a debtor who is liable for bank debt in excess of Taka. 5, 00,000.00 (five lac) for a period of at least one year after the issue of formal demand.
2. In the case of a plaint presented by a debtor, the Court shall dismiss the plaint if it is not satisfied about his right to present the plaint.”

7. From the above provision it is clear that satisfaction of the Bankruptcy Court on the basis of proof is the requirement to dismiss plaint. Petitioner having not filed written objection under section 27 of the said Act and having not adduced any evidence oral or documentary no illegality was committed by the court below in rejecting the applications under section 28 of the said Act under the provisions of sections 28 of the said Act.

8. Except the provisions of section 11 of the Code of Civil Procedure no other provisions of the said Act shall be applicable in respect of a Bankruptcy proceeding. So the provisions of Order 7 rule 11 of the Code of Civil Procedure has no manner of application in a Bankruptcy proceeding for rejection of the plant. The petitioner was under the misconception that the plaint of the Bankruptcy Case could be rejected on the basis of a mere application.

9. Section 33 of the said Act provides that notwithstanding anything contained in any other law for the time being in force, Court in which a suit or other proceeding relating to a claim for money or other property is pending against a debtor shall on proof that an order of adjudication has been made against him under this Act shall transfer the same to the Bankruptcy Court which passed the order of adjudication. The aforesaid provision clearly shows that in spite of pendency of a suit or proceeding against a debtor in any court including Artha Rin Adalat after the order of adjudication is made under section 30 of the said Act against the debtor such suit or proceeding shall be transferred to the Bankruptcy Court. Thus it is clear that there is no bar in filing a Bankruptcy case by the creditor against a debtor against whom a case is pending before any other court in respect of the self same debt.

10. It is true that after passing of a decree in favour of a creditor against a debtor creditor is termed decree holder and debtor a judgment debtor. But the same cannot change the character of a creditor or of a debtor and, as such, in our considered view there is bar on the part of a creditor to make a formal demand against a debtor under section 9(1)(i) of the said Act for a debt of not less than Taka 5.00 lac and, as such, there is no illegality in the formal demand made by the respondent creditor Bank on the debtors including petitioner on the basis of which Bankruptcy Cases have been started under the provisions of section 12(1)(c) of the said Act within one year from the date of occurrence of the act of bankruptcy. Act of bankruptcy in the instant cases occurred on the failure of the debtors including the petitioner on the expiry of 90 days from the date of service of formal demand for the debts made by the respondent creditor Bank on 15-12-97 the said Bank having filed the cases on 20-5-98 the cases were within time. Under the explanation to sub-section (1) of section 28 of the said Act wilful defaulter means a debtor who is liable for bank debt in excess of Taka 5.00 lac from period of at least one year after the issue of formal demand. In view of the same the Bankruptcy Court cannot decide the cases filed by the plaintiff against the defendants until one year expired. If any Bankrupty Court decides a case before expiry of one year then it would be difficult to hold a debtor a wilful defaulter in view of the aforesaid explanation. So the Bankruptcy Court shall have to wait for one year from the date of issuance of a formal demand for a Bank debt in excess of Taka 5.00 lac before passing either an order of dismissal of the plaint or order of adjudication.

11. A Bankruptcy case is filed by the creditor for declaring a debtor a Bankrupt. On the other hand, a creditor bank files a case before the Artha Rin Adalat against the debtor for realisation of the amount of debt with interest .Thus the nature of the two suits and issues are different. Issue before the Artha Rin Adalat in such a suit is whether the plaintiffs are entitled to recover the amount of debt from the defendants. On the other hand, issue before the Bankruptcy Court is whether plaintiff is entitled to declare the defendant a Bankrupt. In view of the same though section 11 of the Code of Civil Procedure in applicable is respect of a Bankruptcy proceeding the Bankruptcy suits are not barred by the principles of res judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.

12. In the above facts and circumstances we find no merit in these Rules.
In the result, all the Rules are discharged with cost at the rate of Taka 1,000.00 to be paid by the petitioner of each Rule to the contesting respondent No.2.
Ed.

Shamshad Asif Vs. Additional District Judge and others, 52 DLR (HCD) (2000) 138

Case No: Writ Petition Nos. 2792 of 1998

Judge: Kazi Ebadul Hoque,

Court: Appellate Division ,,

Advocate: Mr. A. F. Hassan Ariff,Sayyed Shah Hussain,,

Citation: 52 DLR (2000) 138

Case Year: 2000

Appellant: Shamshad Asif

Respondent: Additional District Judge and others

Subject: Res Judicata,

Delivery Date: 1999-6-16

Supreme Court
High Court Division
(Special Original Jurisdiction)

Present:
Kazi Ebadul Hoque J
Md. Muzammel Hossain J

Shamshad Asif
…………Petitioner
Vs.
Additional District Judge and others
………….Respondents

Judgment
June 16, 1999.

Code of Civil Procedure (V of 1908)
Section 11
Bankruptcy Act (X of 1908)
Section 28
The Bankruptcy suits are not barred by the principles of res-judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits. … (11)

Lawyers Involved:
SB Bhandary, Advocate—For the Petitioner (In Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998).
Sayyed Shah Hussain, Advocate—For the Respondent No. 2 (In Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998).
AF Hassan Ariff with SB Bhandary and Shah Md. Munir Sharif, Advocates—For the Petitioner (In Writ Petition No. 2795 of 1998).

Writ Petition Nos. 2792, 2793, 2794, 2795 and 2796 of 1998.

JUDGMENT

Kazi Ebadul Hoque J.

These five Rules were issued at the instance of the petitioner Shamshad Asif calling upon the respondents to show cause as to why orders dated 18-8-98 passed in Bankruptcy Case Nos.1 to 5 of 1998 pending in the Bankruptcy Court, Dhaka should not be declared to have been made without lawful authority and of no legal effect. At the time of issuance of Rules further proceedings of the Bankruptcy cases in question were stated.

2. Respondent No.2 Al-Baraka Bank (Bangladesh) Ltd. filed aforesaid five Bankruptcy Cases against the petitioner and others praying for declaring them Bankrupt, to appoint receiver to take possession of the mortgaged properties and other properties of the petitioner and other defendants and other reliefs on presentation of the plaints on 20-5-98. Court registered the cases and fixed 19-7-98 for hearing and directed plaintiff to publish the summary of the plaint and copy of the order in the Daily Ittefaq and Daily Inqilab. Thereafter on 19-7-98 Court fixed 26-7-9 for hearing about the plaint. Thereafter on 26-7-98 petitioner filed an application under section 28 of the Bankruptcy Act, 1997 praying for dismissal of the plaint. Court also directed the petitioner to produce books of accounts of his business and list of his properties and of his creditors and debtors. But the petitioner failed to comply with the said order. Thereafter on 9-8-98 the applications for dismissal of the plaints were heard and on 12-8-98 applications under section 28 were rejected. Being aggrieved by the same petitioner moved this court and obtained the Rules. In all the Rules common question of law having been raised these are being disposed of by this judgment.

3. Learned Advocate for the petitioner after placing the petition and other materials on record submitted that court below acted illegally in rejecting the applications under section 26 of the Bankruptcy Act, 1997 without considering that after passing of decrees against the petitioner and other guarantor mortgagor in the concerned Suits filed by the Artha Rin Adalat and execution proceedings against the same being pending bankruptcy proceeding for realisation of the decretal dues before the Bankruptcy Court were without is jurisdiction. He further submitted that after passing of the decrees by the Artha Rin Adalat the creditor respondent bank has been transformed into decree holder and no longer is creditor and the guarantor mortgagors are no longer debtors and judgment debtors and as such notices under section 9(1) (i) of the Bankruptcy Act, 1997 upon the petitioner and other guarantor mortgagors are without lawful authority and the Bankruptcy Court acted illegally in not dismissing the plaints of the Bankruptcy Suits. He further submitted that section 11 of the Code of the Civil Procedure being applicable in respect of Bankruptcy proceedings under the provisions of section 8 of the said Act Bankruptcy cases against the self same guarantor mortgagors against whom decrees were passed at the instance and in favour of the self same respondent creditor bank Bankruptcy Cases are barred by the principles of res judicata.

4. Learned Advocate for the respondent Bank after placing the affidavits-in-opposition submitted that after service of notices upon the petitioner by the Bankruptcy Court no written objections under section 27 of the said Act was filed by the petitioner in any of the cases and no evidence was adduced by any party and, as such, there was no scope for dismissal of the plaint under section 28 of the said Act on the basis of mere application. He further submitted that dismissal of plaint under section 28 of the said Act can be made by the Bankruptcy Court only after taking evidence from the parties and there is no scope for dismissal of the plaint on an application like rejection of the plaint under Order 7 rule 11 of the Code of Civil Procedure which has no manner of application in Bankruptcy proceedings. He further submitted that in view of the provisions of section 33 of the said Act all pending suits or other proceedings including execution proceedings between the parties would be transferred to the Bankruptcy Court and, as such, it cannot be said that merely because execution cases are pending Bankruptcy Court cannot entertain a Bankruptcy Suit against the judgment debtors. He further submitted that under clause (c) of sub-section (1) of section 12 of the said Act a Bankruptcy case is to be filed within one year from the date of occurrence of the act of Bankruptcy and under the explanation to sub-section (1) of section 28 a debtor could be a willful defaulter if he fails to pay any amount exceeding Taka 5.00 lac for one year after issuance of a formal demand and, as such, there is apparent conflict between the aforesaid two provisions and a Bankruptcy case should be kept pending for one year from the date of service of a formal demand by the creditor on the debtor for a debt exceeding Taka 5.00 lac.

5. After hearing the parties Court below held that formal demands made by the creditor bank were proper and valid and, as such, creditor bank has right to file the Bankruptcy Suits. It further held that defendant Nos. 1 to 4 including petitioner committed act of bankruptcy as alleged. The defendants could not produce any documents acceptable to the court that they have capacity to pay the debt and, as such, failed to prove the same. It further held that guarantor mortgagors are necessary parties and they would get opportunity to be heard. Court below further held that petitioner failed to prove anything as contemplated under the provision of section 28 of the said Act and, as such, he is not entitled to get relief of dismissal of the plaint.

6. Learned Advocate for the petitioner on our query stated that neither the petitioner nor any defendant filed any written objection under Section 27 of the said Act except filing an application under section 28 of the said Act by the petitioner for dismissal of the plaints. Section 28 of the said Act is as follows:-

“28. Dismissal of plaint.- 1) The Court shall dismiss a plaint presented by a creditor, if—
a) the Court is no satisfied with the proof-
i) such creditor’s right to present the plaint;
ii) the service on the debtor of a notice of the order fixing a date for hearing the plaint in accordance with section 22(2);
iii) the alleged act of bankruptcy, or
b) the debtor can satisfy the Court that—
i) he is able to pay his debts:—
ii) he is not a willful defaulter, or
c) the Court is satisfied that for any other cause, it is expedient that no order of adjudication should be made.
Explanation—In this sub-section ‘willful defaulter’ means a debtor who is liable for bank debt in excess of Taka. 5, 00,000.00 (five lac) for a period of at least one year after the issue of formal demand.
2. In the case of a plaint presented by a debtor, the Court shall dismiss the plaint if it is not satisfied about his right to present the plaint.”

7. From the above provision it is clear that satisfaction of the Bankruptcy Court on the basis of proof is the requirement to dismiss plaint. Petitioner having not filed written objection under section 27 of the said Act and having not adduced any evidence oral or documentary no illegality was committed by the court below in rejecting the applications under section 28 of the said Act under the provisions of sections 28 of the said Act.

8. Except the provisions of section 11 of the Code of Civil Procedure no other provisions of the said Act shall be applicable in respect of a Bankruptcy proceeding. So the provisions of Order 7 rule 11 of the Code of Civil Procedure has no manner of application in a Bankruptcy proceeding for rejection of the plant. The petitioner was under the misconception that the plaint of the Bankruptcy Case could be rejected on the basis of a mere application.

9. Section 33 of the said Act provides that notwithstanding anything contained in any other law for the time being in force, Court in which a suit or other proceeding relating to a claim for money or other property is pending against a debtor shall on proof that an order of adjudication has been made against him under this Act shall transfer the same to the Bankruptcy Court which passed the order of adjudication. The aforesaid provision clearly shows that in spite of pendency of a suit or proceeding against a debtor in any court including Artha Rin Adalat after the order of adjudication is made under section 30 of the said Act against the debtor such suit or proceeding shall be transferred to the Bankruptcy Court. Thus it is clear that there is no bar in filing a Bankruptcy case by the creditor against a debtor against whom a case is pending before any other court in respect of the self same debt.

10. It is true that after passing of a decree in favour of a creditor against a debtor creditor is termed decree holder and debtor a judgment debtor. But the same cannot change the character of a creditor or of a debtor and, as such, in our considered view there is bar on the part of a creditor to make a formal demand against a debtor under section 9(1)(i) of the said Act for a debt of not less than Taka 5.00 lac and, as such, there is no illegality in the formal demand made by the respondent creditor Bank on the debtors including petitioner on the basis of which Bankruptcy Cases have been started under the provisions of section 12(1)(c) of the said Act within one year from the date of occurrence of the act of bankruptcy. Act of bankruptcy in the instant cases occurred on the failure of the debtors including the petitioner on the expiry of 90 days from the date of service of formal demand for the debts made by the respondent creditor Bank on 15-12-97 the said Bank having filed the cases on 20-5-98 the cases were within time. Under the explanation to sub-section (1) of section 28 of the said Act wilful defaulter means a debtor who is liable for bank debt in excess of Taka 5.00 lac from period of at least one year after the issue of formal demand. In view of the same the Bankruptcy Court cannot decide the cases filed by the plaintiff against the defendants until one year expired. If any Bankrupty Court decides a case before expiry of one year then it would be difficult to hold a debtor a wilful defaulter in view of the aforesaid explanation. So the Bankruptcy Court shall have to wait for one year from the date of issuance of a formal demand for a Bank debt in excess of Taka 5.00 lac before passing either an order of dismissal of the plaint or order of adjudication.

11. A Bankruptcy case is filed by the creditor for declaring a debtor a Bankrupt. On the other hand, a creditor bank files a case before the Artha Rin Adalat against the debtor for realisation of the amount of debt with interest .Thus the nature of the two suits and issues are different. Issue before the Artha Rin Adalat in such a suit is whether the plaintiffs are entitled to recover the amount of debt from the defendants. On the other hand, issue before the Bankruptcy Court is whether plaintiff is entitled to declare the defendant a Bankrupt. In view of the same though section 11 of the Code of Civil Procedure in applicable is respect of a Bankruptcy proceeding the Bankruptcy suits are not barred by the principles of res-judicata due to passing of decree by Artha Rin Adalat in favour of the plaintiff of the Bankruptcy suits and against the defendants of those suits.

12. In the above facts and circumstances we find no merit in these Rules.

In the result, all the Rules are discharged with cost at the rate of Taka 1,000.00 to be paid by the petitioner of each Rule to the contesting respondent No.2.

Ed.

Shamsu Meah and others Vs. Government of Bangladesh

Case No: Civil Petition for Leave to Appeal No. 431-442 of 2005

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Md. Ferozur Rahman,,

Citation: VI ADC (2009) 702

Case Year: 2009

Appellant: Shamsu Meah and others

Respondent: Government of Bangladesh

Subject: Property Law,

Delivery Date: 2009-06-21

Shamsu Meah and others Vs. Government of Bangladesh
VI ADC (2009) 702

Supreme Court
Appellate Division
(Civil)

Present:
M.M.Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Aziz J

Shamsu Meah and others……...........Petitioner (In No. 431 of 2005)
Mohammad Hafizur Rahman……….....Petitioner (In Civil Petition No. 432 of 2005)
Md. Nazrul Islam ............................Petitioner (In Civil Petition No. 433 of 2005)
Rokshana Islam. .............................Petitioner (In Civil Petition No. 434 of 2005)
Md. Sharnsuzzaman….......................Petitioner (In Civil Petition No. 435 of 2005)
Anwar shadat...................................Petitioner (In Civil Petition Nos. 436 & 440 of 2005)
Fazle Kader Siddique ........................Petitioner (In Civil Petition No. 437 of 2005)
Mohammad Shah Newaz ..................Petitioner (In Civil Petition No. 438 of 2005)
Khandakar Mahfuzul Huq...................Petitioner (In Civil Petition No. 439 of 2005)
Roksana Parveen (Bithi)...................Petitioner (In Civil Petition No. 441 of 2005)
Gias Uddin………...............................Petitioner (In Civil Petition No. 442 of 2005)
Vs.
The Government of Bangladesh represented by the Secretary, Ministry of Housing and Public Works, Secretariat Building, Dhaka and others.......Respondents (In all the cases).

Judgment
June 21, 2009.

Who have been allegedly evicted from their homesteads, have nothing to be aggrieved even if the plots are not allotted to them because in any event their interest in the said plots has already been given to their respective Attornies and that is why the alleged allottees themselves have not signed the vokalatnama and filed the writ petitions not they received the possession of the respective plots and thus the petitioners having nor come with clean hand, the writ petitions are not maintainable. …. (5)

Lawyers Involved:
Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioners (In all cases)
Md. Ferozur Rahman, Advocate-on-Record-For the Respondent Nos.1-6.
Not represented-Respondent No. 7.

Civil Petition for Leave to Appeal No. 431-442 of 2005.
From the judgment and order dated 04.09.2004 passed by the High Court Division in Writ Petition Nos.5756, 5757, 5758, 5759, 5795, 5796, 5797, 5799, 5800, 5801, 5802, and 5803 of 2000).

Judgment

Md. Tafazzul Islam J. - These petition for leave to appeal are directed against the judgment and order dated 04.09.2004 of the High Court Division passed in Writ Petition No.5756, 5757, 5758, 5759, 5795, 5796, 5797, 5799, 5800, 5801, 5802, 5803 of 2000 discharging the Rules obtained challenging the Memo dated 16.11.2000 under the signature of the Assistant Commissioner of Land, the respondent No.9, canceling the allotment of rehabilitation Plot No.24/2, Block E, Mohammadpur Housing Estate.

2. The petitioners of Civil Petition No.431 of 2005 filed Writ Petition No. 5756 of 2000 on the averments that their homesteads being acquired by the Government, the Land Allotment Committee, Ministry of Works, in terms of the decision taken in the year 1993, subsequently, in the year 1999 allotted 12 rehabilitation plots to them as affected persons for a period of 99 years on payment of considerations and on 10.10.2000 the possession of the respective plots were handed over to the respective constituted attornies of the petitioners and they were possessing the said plots by constructing houses and living therein with their family members; the Ministry of Works, in pursuance of its scheme to construct 500 flats for government officials in different Housing Estates under the project initiated by the National Housing Authority, initially decided not to include the above rehabilitation plots allotted to the petitioners in Mohammadpur Housing Estates but subsequently, all on a sudden, by the impugned Memo dated 16.11.2000 cancelled the allotment of the plots in their favour and also cancelled the approval of the Ministry as regard the Powers of Attorney in respect of the said lands; construction of 500 flats as proposed will not in any way fall within the site plan of aforesaid 12 plots and as such the order of cancellation of the said plots is arbitrary and malafide; the petitioners, having taken possession of their plots from the Government invested huge amount of money for raising boundary wall and construction of semi pucca structures in their respective plots and in such situation the Government is bound by the principles of promissory estoppel and the Ministry of Works cannot be allowed to retrieve their steps and cancel the allotments.

3. The respondent No.1 opposed the Rules and filed affidavit-in-opposition as well as supplementary affidavits categorically denying that possession of the plots in question had been handed over to the petitioners and/or that any construction has been made on the said plots by the petitioners and/or the petitioners are living therein and contended that a section of influential plot grabbers influencing the lower grade officials of the Ministry of Works fraudulently created a so call plan and also the letters showing allotments and delivery of possession which were anti dated and manufactured for the purpose of these writ petitions; the area concerned is reserved for construction of 500 flats for the Government officials and the said decisions was made in the year 1996 and ECNEC on 26.04.1998 approved the plan and proposal and as such the question of delivery of possession of the concerned lands to the petitioners did not arise at all; the instant Rules and the order of temporary injunction from this Court has been obtained by making false statements; there has been no delivery of possession and no deeds have been executed in favour of the petitioners in respect of the concerned plots and so the question of construction of the houses and living therein does not arise.

4. By a supplementary affidavit filed on behalf of the respondent No.1 it has been stated that no physical possession of any land the alleged as per sketch map was handed over to the constituted attornies of the petitioners and the petitioners are not in possession of the concerned lands on constructing houses therein; the documents submitted by the petitioners in support of their claims are fraudulent and collusive and procured through unfair and illegal means and the signatures of the concerned officials therein and also the sketch map are forged and that the Anti-Corruption Bureau has been investigating into the matter under B.A.C. Case No.114-2000/T.F.3; the allotment letter annexed in the writ petition as Annexure-X contains the date 23.03.1999 but the copies of the same which were sent to the Superintending Engineer and to the Executive Engineer contains the date 09.10.2000 and the time of difference of 19 months between the letters creates serious doubt as to the genuineness of the allotment letters and further the plots mentioned in the allotment letter, Annexure-X, does not appear in any other map preserved in any other office of the Government and further Annexure X also contains no Memo number and also conspicuously divulges the absence of the signature of the Executive Engineer and similarly Annexure-E is also a fraudulent and collusive document where the signature of the Executive Engineer is not shown; the concerned lands are still vacant and empty without any structures standing thereon; attempt has been made by the petitioners to construct boundary walls which became the subject matter of a G.D. Entry with the Mohammadpur police Station; the respondent No.1 filed another supplementary affidavit stating that the affidavit sworn by Sakander Hay at, the then Executive Engineer, Public Works Department, and Md. Golam Murtoza Assistant Engineer, Public Works Department another Alauddin Ahmed, a retired government officer before Notary Public, clearly shows that Annexure-X(4) purportedly bearing their signatures is a fraudulent document in that their respective signatures therein haven been forged and further the sketch map, Annexure-X(4), never originated from the Ministry of Works the Executive Engineer Sub-division-II, Mohammadpur Housing Estate, the respondent No.6, also filed affidavit-in-opposition stating that the powers of attorney are benami transactions and between the two, the attornies are the real beneficiary and the owner of the plots.

5. The High Court Division, after hearing, discharged the Rules holding that the cases of the petitioners are based on letters of allotment and subsequent documents allegedly issued by the office of the respondent No.1 and 6 and the petitioners on the basis of those tried to show that they were allotted different plots as affected persons and subsequent to such allotments they were given possession of the concerned plots and they also made payment to the Government but notwithstanding that the Government most illegally and with malafide intention cancelled the said allotments; the Government as well as the Executive Engineer, Mohammadpur Housing Estate on the other hand categorically asserted that the documents relied upon by the petitioners starting from the letters of allotment, passing of challans, delivery of possession sketch map showing creation of plots etc. are all spurious; the statement made in the affidavit sworn before the Notary Public by the concerned Senior Government officials namely Eskander Hayat the then Executive Engineer, Public Works Department, Md. Golam Murtoza, Assistant Engineer, Public Works Department and another Alauddin Ahmed a retired government officer show that their respective signatures allegedly appearing in a sketch map of showing the allotment of concerned plots, have been forged; furthermore, in the writ petition it has been stated that the petitioners were given possession of the concerned plots and they are living therein constructing house therein whereas in their affidavits-in-opposition the Government contended that the concerned plots are still vacant and possession of the same was never handed over to any body and thus disputed questions of facts having been raised, the Court sitting in writ jurisdiction, will not take evidence and adjudicate on such matter; further the submission made by the petitioners to the effect that supplementary affidavits having been filed by the respondents during the hearing stage should not be considered by the Court has no substance since the records show that no objection was made on behalf of the petitioners when the document as annexed with made on behalf of the petitioners when the document, as annexed with the above affidavits, were submitted and as such it will be presumed that those documents were submitted with their approval or at least with the leave of the court; moreover for obtaining relief the petitioners are required to show that they have come before this Court with Clean hands, all the writ petitions were filed by the Attornies of the petitioners as is evident from the cause title of the writ petitions and possession of the lands are also alleged to have been received by their Attornies and as it appears, the Power of Attorney executed by the allottees in favour of the Attornies indicated transfer of the concerned lands in favour of the Attornies in violation of Clause 7 of the allotment letters and accordingly the petitioners, who have been allegedly evicted from their homesteads, have nothing to be aggrieved even if the plots are not allotted to them because in any event their interest in the said plots has already been given to their respective Attornies and that is why the alleged allottees themselves have not signed the vokalatnama and filed the writ petitions not they received the possession of the respective plots and thus the petitioners having nor come with clean hand, the writ petitions are not maintainable.

6. Accordingly there is no illegality or infirmity in the decision of the High Court Division so as to call for any interference.

7. The petitions are dismissed but however the observation of the High Court Division on the merit, of the case will have no bearing while deciding the dispute by any civil Court.
Ed.

Shamsu Miah and others Vs. Government of Bangladesh

Case No: Civil Appeal Nos.75-86 of 2002.

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Abdur Razzak,,

Citation: 1 ADC (2004) 109

Case Year: 2004

Appellant: Shamsu Miah and others

Respondent: Government of Bangladesh

Subject: Constitutional Law,

Delivery Date: 2002-12-14

Shamsu Miah and others Vs. Government of Bangladesh
1 ADC (2004) 109

Supreme Court
Appellate Division
(Civil)

Present:
Ruhul Amin J
KM Hasan J
Md. Fazlul Haque J

Shamsu Miah and others represented by the Constituted Attorney Mohammed Hafizur Rahman and (11) others............Appellants
Vs.
The Government of Bangladesh, Represented by Secretary, Ministry of Housing and Public Works..................... .............Respondents

Judgment
December 14, 2002.

Constitution of Bangladesh, 1972
Article 102
Writ petitioners can be remanded to the High Court Division for further hearing.

The writ petitions are sent back to the High Court Division for fresh hearing upon affording opportunity to the writ petitioners to put forward their case as regards the documents i.e. Affidavits sworn by the officers denying genuineness of their signatures appearing in the papers relating to allotments and explaining the circumstances in which the officials signed the papers relating to allotments and placed by the respondent No.1 before the High Court Division on the last day of hearing of the writ petitions and that also placed the same before the court without compliance of the procedure for placing papers and documents before the Court, but the High Court Division took notice of those and the Annexure (f), copy of which was not made available to the writ petitioners. There is no order as to costs. ….. (9)

Lawyers Involved:
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by, Aftab Hossain, Advocate-on-Record-For the appellants (In all the appeals).
Abdur Razzak, Additional attorney General, instructed by B. Hossain, Advocate-on-Record-For the respondents (In all the appeals).

Civil Appeal Nos.75-86 of 2002.
(From the Judgment and order dated June 28, 2001 passed by the High Court Division in Writ petition No. 5756 of 2000 [heard along with Writ Petition Nos. 5757, 5758, 5759, 5795, 5796, 5797, 5799, 5800, 5801, 5802 and 5803 of 2000]).

Judgment

Md. Ruhul Amin J. - These 12 appeals by leave have been filed against the common judgment and order dated June 28, 2001 of a Division Bench of the High Court Division Disposing of 12 writ petitions writ petition Nos. 5756, 5757, 5758, 5759, 5795, 5796, 5797, 5799, 5800, 5801, 5802 and 5803 of 2000. The High Court Division discharged the Rules obtained in the respective Writ petitions. The Writ petitions were filed challenging legality of the letter dated November 16, 2000 issued under the signature of Assistant commissioner Housing and Settlement, Ministry of Housing and Public Works, Government of Bangladesh canceling respective writ petitioner's allotment of rehabilitation plot in Mohammadpur Housing Estate.

2. Facts in the background of which writ petitions were filed, in short, are that land of the respective writ petitioners or their predecessors were acquired by the government. Government in pursuant to the policy decision to rehabilitate some of such category of people curbed out rehabilitation plots out of the land earlier acquired. There upon allotment of plots were made to the petitioners of the respective writ petitions. These allotters deposited the amount mentioned in the letters of allotment.
Thereupon the relevant authority made over possession of the plots so allotted to the respective writ petitioners. Thereafter allotment of the respective writ petitioners was cancelled.

3. The respective writ petitioners challenged legality of the order of cancellation primarily contending that the said order was mollified and that was violative of the principle of natural justice since cancellation was made without serving any notice, and that also volatile of the fundamental right guaranteed by article 42 of the constitution.

4. The rules issued in the respective writ petitions were opposed by the Government (writ-respondent No.1) contending, inter alia, that the allotment so claimed by the respective writ petitioners was product of fraud and as such by the so called allotments writ petitioners did not acquires any right in the land so claimed to have been allotted. It was also the case of the respondents No.1 that signatures appearing in the papers relating to the allotment were denied by the concerned officials upon affirming affidavit before the Notary Public.

5. At the time of hearing of the writ petitions it was submitted from the side of the respective writ petitioners from the side of the respective writ petitioners that government took decision as back as in 1993 to rehabilitate some of the persons, including the writ petitioners, affected by the acquisition of their land and in pursuant to the said policy decision rehabilitation plots were allotted to the writ petitioners in the year 1999 and they deposited the entire amount mentioned in the letters of allotment in September 2000 and thereafter in October 2000 possession was handed over to the writ petitioners and that subsequent there to respondents upon taking the plea that the land of the rehabilitation plots allotted to the respective writ petitioners would be required in connection with the construction of flats for accommodation of the government officers and cancelled the allotments although possession was earlier made over and as such the act of the respondents canceling allotments was illegal and without lawful authority.

6. The High court Division discharged the Rules primarily upon the view that the land of the plots allotted to the respective writ petitioners have been earmarked for implementation of the project construction of flats for accommodation of the government officials and as such there was no occasion for allotments of the land of the rehabilitation plots to the writ petitioners. The High Court Division also taking into consideration the papers filed from the side of the contesting respondent denying the genuineness of the papers relating to allotments was of the view that the allotments of the rehabilitation plots were obtained upon resorting to fraud and as such the order of cancellation of the allotments "does not call for interference".

7. Leave was granted to consider the contention of the respective appellants that plea of fraud was taken by the respondent at a late stage of the hearing of the Rules contrary to the respondent's own papers on record and that High Court Division discharged the Rules obtained in the respective writ petitions without considering the said materials. It was the further contention of the respective appellants that the High Court Division in discharging the Rules took into consideration new papers and documents on the last day of hearing without giving opportunity to the writ petitioners to controvert the same and that High Court Division based its judgment on a document which was not at all party of the record.

8. The appeals, both in support of and opposition to, were argued elaborately. Upon hearing the parties to the appeals and perusing the judgment of the High Court Division as well as other materials on record we are of the views that the writ petitions need be heard afresh by the High Court Division upon affording opportunity to the writ petitioners to controvert the contents of the papers i.e. Affidavits affirmed by the officials denying the genuineness of their signatures in documents relating to allotments and explaining the circumstances in the background where of they signed the papers pertaining to allotments (there is reference of these papers in the judgment of the High Court Division) and that also for affording opportunity to the writ petitioners to put forward their case as against the material which was not part of the record, Annexure 1(f) letter dated 19.11.2000 of the office of the chief Engineer, Housing Odhidapter, It may be mentioned the High Court Division based its judgment to a greater extent on Annexure 1(f). The appellants emphatically argued that in the copy of the supplementary affidavit of the Respondent No.1 served on them Annexure 1(f) was missing. This contention could not be disputed or denied by the respondent No. 1.

9. In the afar estate of the matter the appeals are allowed. The judgment and order of the High Court Division dated 28^th June, 2001 disposing of the 12 writ petitions mentioned here above discharging the Rules are set aside. The writ petitions are sent back to the High Court Division for fresh hearing upon affording opportunity to the writ petitioners to put forward their case as regards the documents i.e. Affidavits sworn by the officers denying genuineness of their signatures appearing in the papers relating to allotments and explaining the circumstances in which the officials signed the papers relating to allotments and placed by the respondent No.1 before the High Court Division on the last day of hearing of the writ petitions and that also placed the same before the court without compliance of the procedure for placing papers and documents before the Court, but the High Court Division took notice of those and the Annexure (f), copy of which was not made available to the writ petitioners. There is no order as to costs.
Ed.

Shamsuddin Ahmed Master Vs. The State, 2018(1) LNJ 354

Case No: Criminal Appeal No. 4012 of 2004 with Criminal Appeal No. 4157 of 2004 with Criminal Appeal No. 4231 of 2004 with Criminal Appeal No. 4679 of 2004

Judge: Syed md. Ziaul Karim, J.

Court: High Court Division,

Advocate: Mr. Helaluddin, Advocate & Mrs. Sakila Rowshan, D.A.G.,

Citation: 2018(1) LNJ 354

Case Year: 2014

Appellant: Shamsuddin Ahmed Master & others

Respondent: The State

Subject: Penal Code (XLV of 1860) & Evidence Act (I of 1872)

Delivery Date: 2018-07-04

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Syed Md. Ziaul Karim, J

And

Sheikh Md. Zakir Hossain, J.

Judgment on

14.09.2014 and 15.09.2014

}

Shamsuddin Ahmed Master,

...Convict-appellant

(In Criminal Appeal No. 4012 of 2004)

Versus

The State,

. . .Respondent

With

1. Siddique Ahmed,

2. Iqbal Bahar,

3. Abbas

4. Babul

...Convict-appellants

(In Criminal Appeal No. 4157 of 2004)

Versus

The State

. . .Respondent

With

1. Mosarrafuddin alias Bappu

2. Surat Alam,

3. Tomon alias Jabed Hossain,

. . . Convict appellants.

(In Criminal Appeal no. 4231 of 2004)

Versus

The State,

. . . Respondent.

With

Suman

. . . Convict-appellant

(In Criminal Appeal No. 4679 of 2004)

Versus

The State

… Respondent

Penal Code (XLV of 1860)

Sections 299, 300 and 304 Part I

Evidence Act (I of 1872)

Section 45

Now it is to be seen if the injuries of the deceased Khorshed are of such a nature as to constitute ‘murder’. The two injuries in the occipital region are the cause of death as the expert evidence of PW. 6 and PW-20 shows, while the other injuries are simple in nature. It is difficult to hold that these injuries were caused with the intention to cause the death, nor such injuries appear to be sufficient to cause death in the ordinary course of nature. But these injuries, though caused intentionally, are of such a nature that these are "likely to cause death". We do not think that this criminal act of causing the death falls into any of the four categories of criminal acts which constitute ‘murder’ as described in S. 300 of the Penal Code. We rather find that this criminal act was done with the intention of causing such injuries as are likely to cause death, as described in section 299 of the Penal Code. As such, it constitutes culpable homicide not amounting to murder, punishable under section 304 Part I of the Penal Code. . . .(111)

Nazrul Islam and others Vs. The State 45 DLR 142; Moinullah and another Vs. The State 8 BLD 100; Abul Bahar alias Abul Bahar and others Vs. The State 5 BLD 84; Lal Mia alias Lalu Vs. The State 1988 BCR(AD) 147; Government of Bangladesh Vs. Montu alias Nazrul Haque and others 44 DLR (AD) 287; Abdul Khaleque and others Vs. State 48 DLR 446; Abul kashem Vs. State 7 BLC 384; Abdul Quddus Vs. The State 43 DLR (AD) 234; Yogeshwar Gope Vs. The State BCR 2006 267; State Vs. Sree Ranjit Kumar Pramanik 45 DLR 660; The State Vs. Giasuddin and others 18 BLD 254; State Vs. Abdus Sattar and others 43 DLR (AD) 44; Dipok Kumar Sarkar Vs. The State 8 BLD (AD) 109; 40 DLR 58; 42 DLR (AD)31; 10 MLR (AD) 175; PLD 2001 SC 333; PLD 2000 Kar 128; PLD 1999 Lah 56; AIR 2003 SC 3975; 57 DLR (AD) (2005) 75; 1968 P Cr. LJ 1251; 7 MLR (2002) 119; 51 DLR 103; 1968 Cr.LJ 962; Noor Md. Vs. State 1999 MLD 60; Md. Azeem Vs. State 1998 175; Deepak Vs. State 1989 Cr.L.J. 143 (MP); Radhakrishnan Vs. State (1989)1 Crimes 721(Mad)(DB); Bikkar Vs. State (1989) 2 Crimes 1(SC); Harish Vs. State (1989) 2 Crimes 72 (Del) (DB); Amrik Singh Vs. State of Punjab 1981 Cr.L.J. 634; AIR 1981 SC 1171; 1981 SCC (Cr.) 252; 1981 Cr.L.J.(SC) 158, Murari Lal Vs. State of U.P. 1980 Cr.L.J. 1408; AIR 1981 SC 363(1979) SCC 612; Ashok V State 1989 Cr.L.J. 2124; AIR 1989 SC 1890; (1989) 2 Crimes 423; Sate Vs. Montu alias Nazrul Islam and other 44 DLR AD-287 and Joyaray Vs. State of Tamil Nadu 1976 Crl. L.J. 1186(SC) ref.

Mr. Helaluddin, Advocate,

. . . For the convict-appellant

(In Criminal Appeal No. 4012 of 2004)

Mr. A.K.M. Foez, Advocate, with

Mr. Sahadat Hossain, Advocate

. . . For the convict-appellants.

(In Criminal Appeal No. 4157 of 2004)

Mr. Helaluddin, Advocate,

. . . For the convict appellants

(In Criminal Appeal No. 4231 of 2004)

Mr. Khondakar Mahbub Hossain, Sr. Advocate, with

Mr. Belayet Hossain, Advocate

. . . For the convict-appellant

(In Criminal Appeal no. 4679 of 2004)

Mrs. Sakila Rowshan, D.A.G. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorowardi, A.A.G.

. . . For the State-respondent

(In Criminal Appeal no. 4679 of 2004)

JUDGMENT

Syed Md. Ziaul Karim, J: By these appeals convict-appellants have challenged the legality and propriety of the Judgment and order of conviction and sentence dated 20-10-2004 passed by learned Sessions Judge, Cox’s Bazar, convicting the appellants Sumon and Babul under Section 302 of the Penal Code and sentencing each of them to suffer imprisonment for life and also to pay a fine of Tk.10,000/- each in default to suffer rigorous imprisonment for one year more.

2. Convicting appellants namely Sumon, Shamsuddin Ahmed Master, Iqbal Bahar and Abbas under section 324 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for three years.

3. Convicting appellants namely Siddique Ahamed, Mosarraf uddin alias Bappu, Surat Alam Taman alias Jabed Hossain and Firoj Ahamed (non-appellant) under Section 323 of the Penal Code and sentencing each of them to suffer rigorous imprisonment for one year.

4. However, acquitted other two co-accused namely Jahangir Alam and Faridul Alam. Convict Firoj Ahamed served out its substantive sentence and did not prefer any appeal.

5. All these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment.

6. The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that on 11-05-2000 at 9 p.m. after completion of salish with accused, Khorshed Alam(since deceased),along with his brothers namely Sagir Ahmed(P.W.1)), Jalil Ahmed(P.W. 12), Oli Ahmed(P.W.7) were returning towards their home and on the way to home from Court Bazar Station, when they happened in front of the house of Bhulu member at Valukia road adjacent to Ratna Palong Buddhist Monastery, then all the FIR named accused numbering twelve being armed with deadly weapons suddenly attacked them. Accused Sumon, and Babul inflicted kiris blow upon the head of the deceased. Accused Abbas and Shamsuddin Master inflicted dagger blow upon the right arm and chest of the deceased respectively. Accused Sumon and Iqbal Bahar dealt blow upon the head and right leg respectively upon Sagir Ahmed (P.W.1), accused Faridul and Jahangir forcibly took one Radu wrist watch worth of Tk. 25,000/- from Md. Sagir (P.W.1). They also snatched away Tk.10,500/- from him. Accused Firoz and Siddique dealt lathi blow upon him causing serious bleeding injuries.

7. Accused Jahangir and Firoz snatched away Tk.5,200/- from Jalil Ahmed (P.W.12), accused Surat, Mosharraf and Tomon dealt indiscriminately lathi blows to other witnesses.

8. Accused Sumon, Iqbal Bahar Babul and Siddique forcibly entered into the dwelling hut of deceased brother’s wife Maleka (P.W.3) and mercilessly beaten her causing seriously bleeding injuries. Of them accused Iqbal dealt a kiris blow upon the right hand of Maleka Begum. Having had heard the incident witnesses rushed to the scene. Afterwards seriously wounded Sagir Ahmed (P.W.1) and Khorshed Alam were shifted to Cox’s Bazar hospital in critical conditions; other injured Oli Ahmed (P.W.7) and his wife Maleka (P.W. 3) were admitted to Ukia hospital.

9. Later Khorshed was shifted to Chittagong Medical College hospital, then to the Nibidita Hospital wherein on 13-05-2000 at mid-night he succumbed to the injuries. With these allegations prosecution was launched by lodging an FIR by brother of deceased Md. Sagir Ahmed (P.W. 1) as informant which was recorded as Ukia Police Station Case no. 8(5) of 2000 corresponding to G.R. no. 45 of 2000.

10. The Police after investigation submitted charge-sheet under sections 143, 447, 448, 354, 323, 326, 307, 302, 379, 34 of the Penal Code accusing twelve accused including the appellants.

11. Eventually the case was taken up for trial by the learned Sessions Judge, Cox’s Bazar wherein the accused were called upon to answer the charge under sections 302, 34 and 326 of the Penal Code to which the accused on dock pleaded not guilty and claimed to be tried.

12. In course of trial the prosecution in all produced twenty witnesses and examined nineteen witnesses out of twenty eight charge sheeted witnesses. The defence examined none.

13. After closure of prosecution case the accused on dock were examined under section 342 of the Code of Criminal Procedure again they repeated their innocence but led no evidence in defence.

14. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that due to previous enmity and internal feud, they were falsely implicated in this case out of vengeance at the instance of local rivals.

15. After trial the learned Judge convicted the appellants and another namely Firoz Ahmed (non appellant) as aforesaid. However acquitted other two co-accused namely Jahangir Alam and Faridul Alam holding :

(a) The prosecution successfully proved the charge of murder against the appellants Sumon and Babul;

(b) The evidence regarding other co-convicts are consistent uniform and corroborative with each other with all material particulars.

(c) Fatal blows as inflicted by accused Sumon and Babul were well corroborated by the doctor who held autopsy and the injuries inflicted upon the other witnesses were also corroborated by all the prosecution witnesses.

Feeling aggrieved by the aforesaid judgment and order of conviction and sentence, the appellants preferred the instant appeal.

16. The learned Advocates appearing for the convict-appellants seek to impeach the impugned judgment and order of conviction and sentence on three fold arguments:

17. Firstly: The manner of occurrence as stated in the first information report were not consistent with the evidence as adduced by the prosecution in the Court and no incriminating alamats were seized from the alleged place of occurrence which cast a serious doubt upon the prosecution case.

18. In support of their contentions they refer the case of Nazrul Islam and others vs. The State 45 DLR- 142 held:

"Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. "

19. In the case of Moinullah and another vs. The State 8 BLD 100 held:

" Non-examination of important witnesses conversant with the facts of the case and non-seizing of alamats such as bloodstained earthy and wearing apparel of the accused- Whether for withholding such vital evidence adverse presumption should be drawn against the prosecution-Non examination of impartial witnesses gives rise to a presumption adverse to the prosecution case- Had they been examined, possibly they would have disclosed the truth or at least they would have stated something which might not be favourable to the prosecution story- Withholding such material witnesses caused serious prejudice to the defence- Failure to seize bloodstained earth from the place of occurrence and wearing apparels of the accused raises an adverse presumption against the prosecution story rendering the same as unacceptable.″

20. Secondly: In all criminal cases prosecution is to prove its case beyond all reasonable doubt, particularly in respect of motive in this particular case prosecution measurably failed to discharge its duty rather they shifted onus to the accused which is absolutely an illegality.

21. In support of their contentions they refer the case of Abul Bahar alias Abul Bahar and others vs. The State 5 BLD 84 held:

" Criminal Trial- Duty of prosecution- Prosecution is to call all the witnesses to prove the case- If all the witnesses are not called without sufficient reason being shown the court may draw adverse inference against the prosecution-But the prosecution is not bound to produce a witness if he is not expected to give true evidence though he was mentioned in the F.I.R. and charge-sheet- Non production of witnesses named in the charge-sheet and FIR have weakened the prosecution case and as such an adverse inference should reasonable be drawn against the prosecution- Prosecution should produce essential witnesses to unfold narrative on which the prosecution is based. "

22. In the case of Lal Mia alias Lalu vs. The State 1988 BCR(AD) 147 held:

"The accused appellant and six others were convicted by the trial court under sections 302,34 and 148 of the Penal Code and was sentenced to transportation for life and one years rigorous imprisonment respectively. The High Court Division upheld the order of conviction of the appellant under section 302 and 148 and acquitted the six others of the offence under sections 302, 34 but upheld the order of conviction and sentence under section 148. Leave to appeal was granted to consider the question whether the conviction and sentence of the appellant under section 302 of the Penal Code was justified. "

23. Thirdly: For the sake of arguments if the -prosecution succeeded to prove its case of inflicting blows upon the deceased Khorshed Alam, then the same will not come within the ambit of section 302 of the Penal Code as defined in section 300 of the Penal Code.

24. In support of their contentions they refer the case of State, represented by the Solicitor, Ministry of Law and Justice, Government of Bangladesh vs. Montu alias Nazrul Haque and others 44 DLR(AD) 287 held:

″Culpable homicide – The injuries, though caused intentionally, are of such a nature that these are "likely to cause death" and this does not constitute ‘murder’- it constitutes culpable homicide not amounting to murder. "

25. In the case of Abdul Khaleque and others vs. State 48 DLR-446 held:

" There was none to stop Rashid to deal repeated blows if he had the intention to kill- he merely had struck one blow which eliminates the intention to kill. Therefore, the intention to kill is lacking-it is not a culpable homicide amounting to murder but a culpable homicide not amounting to murder. "

26. In the case of Abul kashem vs. State 7 BLC 384 held:

" Appellant Abul Kashem having struck a solitary blow on the head of Jeleha Khatun with a tangi in the midst of the chase and counter-chase as a result of which she succumbed to her injury. Having regard to the totality of the circumstance it can only be said that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death of Jeleha Khatun and not with any intention to cause her death. The offence committed by the appellant, therefore, amounted to culpable homicide not amounting to murder, punishable under section 304 second part of the Penal Code and not under section 302 and accordingly, the sentence was modified for ten years in place of imprisonment for life. "

27. The learned Counsels lastly submit that the judgment and order of conviction and sentence based on misreading and non consideration of the evidence on record. Therefore, the same cannot be sustained in the eye of law.

28. The learned Deputy Attorney General appearing on behalf of the State-respondent opposes the appeal and submits that the occurrence took place on 11-05-2000 at 9:00 p.m. but at a very earliest point of time, on 13-05-2000 the FIR was lodged by the brother of deceased who was critically wounded at the time of occurrence. She adds that the charge was proved by consistent and corroborative evidence. She next submits that the appellants namely Sumon and Babul who inflicted blows upon the deceased Khurshed with the clear intention for causing death which is culpable homicidal amounting to murder and the same will come within the ambit of section 300 of the Penal Code.

29. In support of her contentions she refers the case of Abdul Quddus vs. The State 43 DLR(AD) 234 held:

"The testimony of the solitary eye witness could not be shaken in any manner by the defence in cross-examination for which it is difficult to disbelief her testimony as she narrated the prosecution case in details. Even a child witness can be relied if he/she is capable of understanding and replying the question intelligently. "

30. In the case of Yogeshwar Gope vs. The State BCR 2006-267 held:

"(a) PWs. 1-4 being father, mother and sisters of the deceased deposed before the Court and in cross-examination put to them their evidence remained unshaken and unblemish. From the evidence of aforesaid witnesses it is also proved that they established their claim of lighting kupi light and there is nothing to disbelieve them. The occurrence taking place in the house of P.W. 1 at about 3:00 a.m. it is not unlikely that the inmates of the house would become the natural witnesses. Only because of their relationship their evidence cannot be thrown way unless the evidence is found to be untrue or tainted with motive.

31. The learned Counsel submits that all the prosecution witnesses deposed in a very consistent manner, there were no discrepancies or contradictions in their evidence.

32. In support of her contentions she refers the case of State vs. Sree Ranjit Kumar Pramanik 45 DLR 660 held:

"When discrepancies in testimony were mere discrepancies, and not contradictions, they did not affect the truth of what was stated in Court. "

33. She adds that in a case like this motive is immaterial.

34. In support of her contentions she refers the case of The State vs. Giasuddin and others 18 BLD -254 held:

"When there is sufficient direct evidence to prove an offence, motive is immaterial and has not vital importance. While trying a case under section 302 of the Penal Code or hearing an appeal involving Section 302, the Court must not consider first the motive of the murder, because motive is a matter of speculation, and it rests upon the mind and special knowledge of the accused persons. Motive is not a necessary ingredient of an offence under section 302 of the Penal Code. The Court will see if sufficient direct evidence is there or not. If not, motive may be a matter for consideration specially when the case is based on circumstantial evidence. "

35. The learned Deputy Attorney General lastly submits that the learned Judge of the Court below after considering the evidence on record rightly convicted the accused which calls for no interference by this Court.

36. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

37. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

38. P.W. 1 Md. Sagir Ahmed is the informant of this case and brother of the deceased. He became injured in the occurrence. He deposed that on 11-05-2000 at 9:00 p.m. he along with other brothers after completion of Salish with the accused, were going to their home and when they reached in front of the house of Bhulu member at Ratna Palong on the Balukia road, then accused Sumon, Iqbal Bahar, Babul, Abbas, Surat Alam, Bappu, Shamsuddin, Tomon, Faridul Alam, Jahangir Alam, Firoz Ahmed being armed with deadly weapons like dao, dagger, kiris, cut-gun, lathi, and iron rod attacked them. Accused Sumon a kiris in his hand dealt blow upon the head, accused Iqbal Bahar at his right arm causing bleeding injuries. He fell down and accused Jahangir Alam, Firoz Alam, dealt indiscriminate lathi blow upon him. Accused Iqbal dealt a kiris blow upon his right leg causing serious bleeding injuries. Accused Surot Alam, Bappu, Tomon dealt iron rod and lathi blow upon his brothers Jalil and Oli Ahmed causing bleeding injuries. Accused Babul dealt kiris blow upon his deceased brother Khorshed. Accused Abbas dealt a dagger blow upon the right arm of deceased Khorshed, accused Shamsuddin dealt a dagger blow at the chest of deceased Khorshed, then accused Sumon told that the deceased has not yet died so he again saying " n¡m¡ HMe¡ jl e¡C " then he dealt kiris blow upon the head of deceased Khorshed. Accused Farid, Jahangir snatched away his Radu wrist watch and cash money for Tk.10,500/-. Accused Jahangir, Firoz also snatched away Tk. 5,200/- from his brother Jalil. Afterwards the accused rushed toward Court bazaar with his injured brother Khorshed by Rickshaw. On their alarm witnesses Nazrul Islam, Moqbul Ahemd and Syed Alam happened at the scene and carried them to the Ukia hospital. Later, he came to know that the accused also fired towards their house. Accused Sumon, Iqbal Bahar, Babul, Tomon forcibly entered into his dwelling hut and dragged out his younger brother’s wife Maleka and accused Iqbal dealt a kiris blow upon her right arm. On her screaming witness Rashid Ahmed, Rafiq Alam, Rafiquddin, happened at the scene and sent Maleka to the hospital. He also heard about the incident from Maleka. The injuries as inflicted upon him aswellas his brothers were found critical at Ukia hospital. Then they shifted to the Cox’s Bazar Sadar hospital wherein the condition of his brother Khurshed became more critical then they shifted him to Chittagong Medical college, from there to Chittagong Nibedita hospital wherein he succumbed to the injuries. He proved the FIR as Exhbt. 1, and his signature on it as Exhbt. 1/1.

39. In cross–examination he stated that at the time of occurrence 10/20 locals happened at the scene to whom he disclosed about the occurrence. He was under treatment about 20/25 days. Then he met with the Police for two or three times. He identified the accused by the light of decoration and electric light. He lastly denied the suggestion that due to some internal feud relating to some land, he implicated the accused falsely in this case and was deposing falsely.

40. P.W. 2 Md. Nurul Islam is the cousin of the deceased and not eye witness to the occurrence. He deposed that he heard about the occurrence which took place on 11-05-2000 at 9:15 p.m. when he reached in front of the rice shop of Iskandar Sowdagar wherein he found Khurshed in a bleeding condition and he was dragging by the accused Sumon, Tomon, Bahar, Babul, Firoz, Bappu, Surat Alam, Farid Alam, Jahangir, Shamsuddin and others towards hotel of Jahiruddin. The victim Khurshed was sited in a Chair wherein accused Shamsuddin Master dealt a lathi blow and seriously assaulted him. He along with Chairman Akter rescued him and sent him Ukia hospital, on the following day Khurshed died. He identified the accused on dock except Jahangir.

41. In cross-examination he stated that on 13-05-2000 he was examined by the Police. He did not see the occurrence how the deceased and others sustained injuries. He denied the suggestion that witnessing accused Sumon and Tomon was not true.

42. P.W. 3 Maleka Begum, brother’s wife of deceased. She deposed that on 11-05-2000 at 9:00 p.m. he found that accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin, Tomon, Farid Alam, Jahangir Alam and Firoz Ahmed being armed with deadly weapons running towards their house. She being afraid went back inside the room wherein accused Sumon, Babul, Tomon, Iqbal entered and dragged her to the courtyard wherein accused Iqbal dealt a kiris blow at her right hand, Tomon took away her ring, injured Khurshed was shifted to the Chittagong medical college hospital wherein he succumbed to the injuries. She identified all the accused on dock except accused Jahangir Alam.

43. In cross- examination she denied that she did not state to Police about entry of accused in his dwelling hut. During investigation the Police did not seize any blood stained earth from the place of occurrence. He denied the suggestion that she was deposing falsely.

44. P.W. 4, Asia Khatun was tendered by the prosecution and the defence declined to cross-examine her.

45. P.W. 5 Dr. Md. Asharaful Islam, P.W. 6 Dr. Md. Shahjalal were the medical officers at the relevant time at Ukia and Cox’s Bazar hospitals respectively. They examined Maleka, Oli Ahmed, Zalil and Khurshed and issued certificates to that effect. They proved it as Exbts. 2-6.

46. P.W. 7 Oli Ahmed is the brother of deceased and injured person. He deposed that on 11-05-2000 at 8:00 p.m. after settling a disputed matter he and his brother Khurshed Alam were returning from Ukia Court Bazar and when they reached in front of the house of Bhulu member, at 9:00 p.m. then accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin, Tomon, Faridul Alam, Jahangir Alam and Firoz Ahmed being armed with kris, lati, iron rod and gun etc attacked them, Sumon dealt a kiris blow upon the head of Sagir Ahmed, Iqbal Bahar dealt a kirs blow at the right arm and right leg. Accused Jahangir Alam and Firoz Alam dealt indiscriminately lathi blow. Accused Farid, Jahangir took away wrist watch worth Tk.10,500/- from his brother. Accused Babul dealt a kiris blow at the head of Khorshed accused Abbas dealt a dagger blow upon the right arm of Khurshed, accused Shamsuddin also dealt a blow on the chest of Khorshed by a dagger. Accused Surot Alam dealt a kiris blow upon the head of his brother Jalil, accused Bappu and Tomon inflicted lathi blow upon him, accused Tomon, Bappu and Surot Alam inflicted lathi, rod and kiris bows upon Jalil. Accused Sumon dealt another kiris blow upon the head of Khurshed and dragging him in a rickshaw, Injured Khurshed was taken to Ukia hospital. From there to Cox’s Bazar, lastly to Chittagong wherein he succumbed to the injuries.

47. In cross-examination he stated that the Police examined him after 2/3 days from the occurrence. He denied the fact that he did not state to the Police that accused Sumon, holding kiris standing in front of the house of Bhulu member, resisted by accused persons, accused Jahangir and Farid snatched away Rado wrist watch from wounded Sagir worth Tk.10,500/-.Accused Shamsuddin dealt a blow upon the chest of Khurshed, accused Tomon, Surot Alam inflicted lathi, rod, kiris blow upon Jalil and taking him to Court Bazar hospital on boarding Rickshaw. He denied the suggestion that accused Sumon did not assault the deceased Khurshed Alam, and there was internal feud between them and they were falsely implicated in this case.

48. P.W. 8 Syed Hossain a local seizure list witness. He deposed that on 11-05-2000 at 9:15 a.m. to 9: 30 a.m. victim Khurshed seated in Zahiruddin’s shop wherein accused Sumon, Shamsuddin master, Surat Alam, Bappi and Babul inflicting fist and blow upon him. At that time Khurshed sustained injuries and he was taken to Ukia hospital from there to Cox’s Bazar and lastly to Chitgagong medical college wherein he succumbed to the injuries. On 14-05-2000 the Police seized some alamats namely lathi and prepared seizure list and he stood as one of the witness in the seizure list (Exhbt.7) and his signature on it Exhbt. 7/1. He also proved the seized articles as material Exhbt. I, Ia and Ib series.

49. In cross-examination he denied the suggestion that he did not go to the P.O. for bringing tea and some unknown persons brought Khurshed in Zahiruddin’s Tea stall, was deposing falsely.

50. P.W. 9 Rashid Ahmed, a local witness. He deposed that on 11-05-2000 at 9:00 p.m. he found all the accused came towards his house and forcibly entered inside the house. They dragged the deceased’s younger brother wife Maleka, accused Bahar inflicted kiris blow upon Maleka and assaulted her causing serious bleeding injuries. Having had heard the incident the other locals rushed there. He identified all the accused on dock except Jahangir.

51. In cross-examination he denied the fact that some unknown persons assaulted Khurshed for dragging Farzana daughter of Shamsuddin .

52. P.W. 10 Nazrul Islam, a local witness, he deposed that on 11-05-2000 at 8:00 a.m. he found that accused Sumon, Bahar, Babul, Abbas, Surat Alam, Pappu, Shamshu Master, Tomon, Jahangir and Firoz mercilessly beaten Khurshed and others with deadly weapons like Chori, lathi, iron rod etc. Accused Sumon inflicted kiris blow upon Sagir and Khorshed upon their head, accused Bahar inflicted kiris blow at the right hand of Sogir, accused Jahangir inflicted indiscriminating lathi blows upon Sagir, accused Babul inflicted Kiris blow upon the head of Khurshed, accused Abbas inflicted dao blow in the right leg of Khurshed, accused Jahangir, Firoz and Tomon inflicted lathi blows indiscriminately upon the Oli, Jalil and Sogir, accused persons then took injured Khurshed to Court Bazar by rickshaw.

53. In cross-examination he stated that he was examined by the Police on 19-05-2000, and denied the fact that victim Khurshed and others were in front of the shop of Eskander wherein he was assaulted by the accused, accused Sumon inflicted kiris blow upon the head of Sogir and indiscriminate lathi blows by Jahangir and Firoz. He denied the suggestion that he was deposing falsely.

54. P.W. 11 Rokeya Begum, wife of the deceased’s brother and not eye witness to the occurrence. She deposed that on 11-05-2000 at 9:00 p.m. accused Sumon, Bahar, Babul, Abbas, Surat Alam, Pappu, Shamshu Master, Tomon, Farid, Jahangir and Firoz being armed with deadly weapons like lathi, Kiris, hockey stick etc. entered into their house. Accused Iqbal Bahar dragged out Maleka from her house and inflicted kiris blow upon her head when she tried to rescue her then accused Sumon inflicted lati blow upon her. On her screaming neighbours rushed to the scene and accused departed from there.

55. In cross-examination she denied the suggestion that she was deposing falsely.

56. P.W.12 Abdul Jalil, brother of the deceased Khurshed and also an injured person. He deposed that on 11-05-2000 at 8:00 p.m. when he along with his brother Sogir, Khurshed and Oli on the way to their home reached in front of the house of Bhulu member, then accused Sumon, Pappu, Abbas, Surat alam, Shamsuddin, Farid, Tomon, Jahangir and Firoz being armed with lathi, kiris and local gun attacked them. Accused Surat Alam inflicted kiris blow on the head of Sogir, accused Iqbal on the right arm of Sogir, accused Jahangir and Firoz dealt indiscriminate lathi blows upon the head of Sogir, accused Babul dealt kiris blow upon the head of Khurshed, Abbas dealt a dagger blow at the right arm of Khurshed, accused Shamsuddin Master dealt blow at the chest of victim Khurshed, accused Sumon inflicted another kiris blow upon the head of Khurshed saying Khurshed has not yet died, accused Surat Alam inflicted kiris blow, accused Bappu and Tomon inflicted indiscriminate lathi blows upon the head of Khurshed and Oli. Accused persons con-jointly carried his injured brother Khurshed to Court bazar by Rickshaw. On their alarm witnesses rushed to the spot and carried them to Ukia hospital from where Sogir and Khurshed were taken to Cox’s Bazar hospital. From there Khurshed was shifted to Chittagong for better treatment wherein he succumbed to the injuries on 13-05-2000. He identified all the accused on dock except accused Jahangir.

57. In cross–examination he stated that on 17-05-2000 he alone was examined by the Police. He denied the suggestion that he did not state to the Police which he stated before the Court, and to save them from the incident of assaulting Farzana the instant case was lodged.

58. P.W. 13 Nurul Alam, is a local witness and heard the occurrence. He deposed that on 11-05-2000 at 9:00 p.m. Abbasuddin Chairman, Didarul Alam, Secretary, Farid and Abul Kashem were sitting in the tea-stall of Zahiruddin. One person informed that Khurshed was attacked and about 100/120 locals tried to rescue him. He was declared hostile by the prosecution.

59. In cross-examination by the prosecution he denied the fact that he witnessed the occurrence of inflicting blows upon Khurshed, Jalil, Oli and Sogir and being biased by the accused he deposed falsely.

60. P.W. 14 Syed Alam, a local witness. He rushed to the scene after occurrence. He deposed that on 11-05-2000 at 8:30/9-00 p.m. on the way to his home he found Jalil, Sogir, Oli and Khurhsed were ahead of him when they reached in front of the house of Bhulu member 10/12 persons attacked Jalil and others. By the electric bulb he recognised Sumon, Tomon, Babul, and Abbasuddin and they beat Jalil and others and took Khurshed by rickshaw. He also identified the accused on dock.

61. In cross-examination he denied the suggestion that he did not witness the occurrence.

62. P.W. 15 A.S.P. Md. Abdul Hamid. He deposed that on 13-05-2000 he was attached with Ukia Police Station as Officer in charge. He recorded the FIR and filled up of its form Exhbt. 7 and handed over the investigation to S.I. Zakir.

63. In cross- examination he stated that he received the FIR through Syed Ahmed with medical certificate.

64. P.W. 16 Md. Shahjahan Hawlader. He deposed that on 23-07-2000 he was posted as O/C at Ukia Police Station. He took up the investigation. He visited the place of occurrence and after his transfer he handed over the case record to the S.I. Zakir for investigation.

65. P.W. 17 A.S.I. Nimai Chandra Pal. He held inquest upon the cadaver of Khurshed and submitted a report, he proved the same as Exhbt. 9 and his signature on it 9/1. He also put the challan of the dead-body as Exhbt. 10.

66. In cross-examination he stated that at room no.102 of Nibidita hospital, he held inquest, identified by Rashid Ahmed elder brother of the deceased.

67. P.W. 18 S.I. Md. Fazle Rabbi, he deposed that 03-11-2000 he was attached with Ukia P.S. and subsequently the case was entrusted to him for investigation. He visited the place of occurrence and he examined some of the witnesses. After concluding investigation he submitted charge sheet.

68. In cross-examination he denied the suggestion that he submitted a perfunctory charge-sheet.

69. P.W.19 S.I. Zafar Ali. He deposed that he partly investigated the case. He prepared sketch map with index which he proved it as Exhbt. 11 and his signature on it as Exhbt. 11/1, Index Exhbt. 12 and his signature on it as Exhbt. 12/1. Later he handed over the investigation to O/C Ukia Police Station.

70. In cross-examination he stated that witness Oli Ahmed did not state about inflicting blow by Iqbal Bahar upon Sogir. He denied the suggestion that he made a perfunctory investigation.

71. P.W. 20 Dr. Abdul Hye deposed that on 13-05-2000 he was posted in the Chittagong Medical College hospital in Forensic Medicine Dept. He held autopsy upon the cadaver of deceased Khurhsed Alam and found the following injuries:

72. One lacerated wound with stitches 11" size right parietal region of scalp and lacerated wound 2" mid parietal region with diffused haemorrhage at the side.

73. Bruise (a) right arm middle part back side 1" x ¼" , (b) right anterior chest 1" x ½ " below right nipple, (c) right wrist 2 " x ½ ", (d) back of chest 3" x ½ " below both scapula transverse.

74. Brain: subdural clotted blood ¼", thickness present over all lobes of the brain.

75. He opined that death was due to head injury with intracranial haemorrhage causing shock and failure of the vital centers which was ante-mortem in nature. He proved the post mortem report as Exhbt. 15 and his signature on it as Exhbt. 15/1.

76. In cross-examination he stated that the injuries caused by blunt weapon.

77. These are all of the evidence on record as adduced by the prosecution to prove the charge.

78. Now the question calls for consideration how far the prosecution proved the charge under Sections 302, 34 and 326 of the Penal Code against the appellants. Such question along with the submissions of the defence should be answered in the following manner:

79. In approaching and answering to the points drawn up, the cardinal principles of criminal jurisprudence in awarding conviction followed by sentence upon an indicted person demands meditation. A legal survey of law, appraisal of evidence, browsing eye on materials brought on record, analysis of fact and circumstance of the case, inherent infirmities disturbing and striking facts of prosecution case are also required to be taken into consideration. Rival contentions surged forward from both sides shall be also addressed and considered by us.

80. Fundamental principles of criminal jurisprudence and justice delivery system is the innocence of the alleged accused who should be presumed to be innocent until the charges are proved beyond reasonable doubt on the basis of clear, cogent and credible evidence and that onus of proving everything essential to the establishment of charge against the accused lies upon the prosecution which must prove charge substantially as laid to hilt and beyond all reasonable doubt on the strength of clear, cogent credible and unimpeachable evidence. In a criminal trial, the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure, it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. Proof of charge must depend upon judicial evaluation of totality of evidence, oral and circumstantial, and not by an isolated scrutiny. Prosecution version is also required to be judged taking into account the overall circumstances of the case with a practical, pragmatic and reasonable approach in appreciation of evidence.

81. It is always to be remembered that justice delivery system cannot be carried away by heinous nature of crime or by gruesome manner in which it was found to have been committed and graver the charge is greater is the standard of proof required. It should also bear in mind that if the accused can create any doubts by adducing evidence or cross examining the PWs in the prosecution case, the accused is entitled to get benefit of doubt. It is conveniently observed that though sad, yet is a fact that in our country there is a tendency on the part of the people to rope in as many people as possible for facing trial in respect of any criminal case. It has been even found that innocent person, including aged infirm and rivals, are booked for standing on dock. Some are acquitted by the Court of first instance and some by appellate Court, but only having been in incarceration for years. Such efforts on the part of relatives of victim and other interested persons invariably is done and thus it becomes difficult on the part of a Court to find out the real culprit. Under such circumstances and in view of the prevalent criminal jurisprudential system, a judge is to find out the truth from a bundle of lies and to shift the grain out of chaff. A Judge does not preside over a criminal trial merely to see that no innocent person is punished. A Judge, also presides to see that guilty man does not escape. Both are public duties. Law therefore, cannot afford any favour other than truth and only truth.

82. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d) There must be clear and unequivocal proof of the corpus delicit.

e) The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

83. On going to the materials on record it transpires that the prosecution in all produced twenty witnesses. Of them, examined nineteen witnesses. P.W. 1 is the informant and brother of deceased. He along with his other two brothers P.Ws. 7 and 12 witnessed the occurrence and became wounded by the accused. P.Ws. 2, 8, 9, 10,11, 13 and 14 are the local witnesses and heard the occurrence. P.W. 3 also an injured lady at the later incident. P.Ws. 5 and 6 are the doctors who examined the victim at a very early stage in the hospital. Of them, P.W.5 examined P.Ws. 3 and 7, P.W. 6 examined, P.Ws. 1, 12 and deceased and also issued certificates.

84. P.Ws. 15, 16, 17, 18 and 19 are the Police personnels. Of them, P.W. 15 recorded FIR, P.Ws. 16, 18 and 19 investigated the case, of them P.W. 18 submitted charge-sheet accusing 12 accused including the appellants. P.W. 17 held inquest upon the cadaver of the deceased. P.W. 20 is the doctor who held autopsy upon the cadaver of Khurshed and submitted report Exhbt. 15.

85. On meticulous examination of the evidence on record we find that the instant case is absolutely rest upon the evidence of P.Ws. 1, 7 and 12 who are the full brothers of deceased and sustained injuries at the time of occurrence. Other witnesses were examined to corroborate their evidence. P.W. 1 Md. Sagir Ahmed is the informant and brother of the deceased categorically stated that on 11-05-2000 at 9:00 p.m. he along with his other brothers were returning to his home after completion of a salish held with the accused and when they reached in front of house of Bhulu member then accused Sumon, Iqbal Bahar, Babul, Abbas, Surot Alam, Bappu, Shamsuddin Master, Tomon, Farid, Jahangir and Firoz being armed with deadly weapons like kiris, dagger, dao, iron rod, lathi etc. suddenly attacked them. Accused Sumon and Iqbal inflicted kiris blows upon his head, and right arms respectively, accused Siddique and Firoz inflicted lathi blows upon him causing serious bleeding injuries, accused Faridul and Jahangir snatched his wrist watch and cash money, accused Surot Alam , Bappu, Tomon, inflicted iron rod and lathi blows upon his brother Oli Ahmed(PW-7) and Jalil Ahmed(PW-12), accused Babul inflicted kiris blow upon the head of his deceased brother Khurshed Alam, accused Abbas dealt dagger blow upon the right arm of deceased Khurshed, accused Shamsuddin Master dealt a dagger blow at the chest of Khorshed, accused Sumon thereafter dealt a kiris blow upon the head of deceased Khorshed, accused Jahangir, Firoz also snatched away Tk.5,200/- from Jalil (PW-12), accused also forcibly entered into the dwelling hut of his brother and dragged out his brother’s wife Maleka Begum (PW-3) and mercilessly beaten her causing serious bleeding injuries. Then he along with his other injured brothers Oli Ahmed, Jalil, Khorshed and brother’s wife Maleka begum were taken to Ukia hospital. Later they were shifted to Cox’s Bazar sadar hospital but his brother Khurshed was shifted to Chittagong Medical college hospital from where to Chittagong Nibedita hospital, wherein he succumbed to the injuries on 13-05-2000. The evidence of P.W.7 Oli Ahmed, P.W.12 Abdul Zalil provide corroboration in respect of inflicting blows by accused Sumon, Babul upon the head of deceased Khorshed and other accused upon the injured persons, including themselves. P.W. 3, Maleka Begum, wife of P.W.7 Oli Ahmed also witnessed the occurrence and her evidence furnished corroboration with that of the others evidence. P.W. 20 Dr. Abdul Hye who held autopsy upon the cadaver of Khurshed and found as many as four injuries. Of them two injuries upon the parietal region. P.Ws. 5, Dr. Md. Ashraful Islam, P.W. 6 Dr. Shahjahan who at the very inception of the case examined P.Ws. 3, 7, and P.Ws. 1, 12 and the deceased Khurshed and issued certificates. On critical analysis of the injury certificates we find that the same also provide corroboration with regard to the inflicting blows by the other accused. Therefore, we find that the evidence of P.Ws. 1, 7, 12 and 20 in respect of inflicting kiris blows upon the head of the deceased Khurshed by convict Sumon and Babul are consistent, uniform and corroborative with each other with all material particulars. There is no absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses, having no reason whatsoever to depose falsely against them. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility.

86. In respect of other convicts namely Shamsuddin Ahmed Master, Siddique Ahmed, Iqbal Bahar, Abbas, Mosarrafuddin, Surat Alam, Tomon alias Jobed Hossain, we find that they were with the principle assailants attacked the deceased along with his two brothers and they were also present at the scene of occurrence. Of them, Iqbal Bahar dealt a kiris blow upon the right hand of P.W. 1 Md. Sagir Ahmed, Siddique and Firoz dealt lathi blows upon PW-1, accused Surot Alam, Bappu, Tomon dealt iron rod and lathi blows upon the persons of Oli Ahmed(PW-7), and Jalil (PW.12), accused Abbaas and Shamsuddin dealt a dagger blows upon the deceased Khurshed. The blows inflicted by those accused also provide corroboration with the injuries shown in the certificates issued by the doctors P.Ws. 5 and 6. Therefore, we find that the evidences against those accused are also consistent, uniform and corroborative with each other. So the same are also invulnerable to the credibility. In this particular case we find that the prosecution tried to prove its case by producing twenty witnesses. Of them nineteen witnesses were examined. They are all competent and their evidences are also self contained. The defence did not led any evidence although they had an explanation to the effect that there were an internal feud between them. In such situation the plea raised by the defence has no leg to stand and as such the defence having not deliberately led any evidence in respect of their false/ pseudo plea. So it recoils against them. It is significant to point out that there are consistent, uniform evidence against the convict appellants regarding inflicting kiris blows upon the deceased by which the deceased succumbed to the injuries by convict Babul and Sumon and other co-convict-appellants also assaulted and participated in assaulting the deceased aswellas the other witnesses which were corroborated by them. So in our view in the absence of any other reasonable explanation asto the safe departure of such facts, no conclusion other than the guilt of the accused can be drawn.

87. It is true that P.W.1 is the informant and brother of the deceased did not expressly mentioned some facts in FIR in respect of inflicting blows by the accused but in his evidence he categorically stated all the facts which he witnessed and heard.

88. In our view such omissions does not materially affect the prosecution case having regard to other evidence on the point.

89. In the case of State vs. Abdus Sattar and others 43 DLR (AD) 44 held:

“ FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected because the informant had made an omission to mention about the fact which the witness stated in his deposition.”

90. In the said case at paragraph 18 it was observed that:

“ The first objection which is taken against the impugned judgment is that the learned Judges of the High Court Division have put forward such a ground for disbelieving PWs.4 and 5 (eye-witnesses), and this was the only ground, which was plainly in disregard of the accepted principles regarding the appreciation of the evidence. Both these witnesses claimed that they had been the respondents dragging away the deceased Abdul Hakim towards the house of respondent Nurul Haque by putting a gamcha on his neck. PW.4 Arab Ali who was inside his house at that time was actually called out by PW 5, Arshed Ali who first saw the dragging of the deceased. PW. 4 came out of his house and obstructed the respondents but he was driven away by some of the companions of the respondents. PW 1, Abdur Rab, the informant, stated in his evidence that after the recovery of the dead-body of Abdul Hakim from the ditch, PWs.4 and 5 informed him and others that they had seen the dragging of Abdul Hakim by the respondents. It has been noticed that PWs. 4 and 5 along with others accompanied PW 1 to the house of Nurul Haque and the recovery of the dead-body was made in their presence. PW 1, however, did not mention in the FIR that PWs. 4 and 5 had informed them that they had seen the dragging away of Abdul Hakim by the respondents. The learned Judges observed that there was no reason to omit this part of the story from the first information report and “accordingly we cannot place any reliance on the statement of PW. 4 and 5”. It is well-established that the FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected because the informant had made an omission to mention about the fact which the witness stated in his deposition. To reject the evidence of a witness only on such ground is against the accepted norms of the administration of criminal Justice.”

91. In the case of Dipok Kumar Sarkar vs. The State 8 BLD (AD) 109 held:

“ First information Report- Its value in case of apparent omission of fact- FIR is not a piece of substantive evidence but may be used for corroborating or contradicting the maker only- The attention of the P.W. having not been drawn to his omission in cross-examination, the defence could not take advantage of the contradiction (be omission)- Even otherwise this omission does not materially affect the prosecution case having regard to other evidence on the point- Evidence Act( 1 of 1985) s.145.

92. In the said case at it was observed at paragraph 12 are that:

“ As to the first ground it is seen that P.W.10 C. Bagharpara P.S. stated in his evidence that on reaching the P.O. he arrested the appellant and on his admission the dead-body of his wife was recovered from the latrine well of Pulin Sarkar and the appellant himself was engaged in bringing out and washing the dead-body. This statement, however, is not therein the F.I.R. made by him. There he stated that he received source information that the appellant had killed his wife and her dead-body had been concealed in the latrine well of Pulin Sarkar of the same village at a distance of about 200 yards. He lifted the dead-body from the well and go it washed in presence of witnesses and took the appellant into custody. Thus, there is apparently an omission in the FIR as to the recovery of the dead-body by the appellant himself following his admission. FIR is not a piece of substantive evidence out may be sued for corroborating or contradicting the maker only. Admittedly the attention of P.W.1 was not drawn to his omission in cross-examination. The defence could not take advantage of the contradiction (by omission) without drawing the attention of P.W.1 under Section 145 of the Evidence Act. Even otherwise we think this omission in the F.I.R. does not materially affect the prosecution case having regard to the other evidence in the point. P.W.8 Jagadish Chandra Biswas, Dafadar, stated in his evidence that Dipak (appellant) pointed out the dead-body and himself brought it out from the latrine well. P.W.11 Md. Golam Mostafa, Commissioner, Narail Pourashava, (witness named in the FIR) also stated that Dipak admitted in his presence that he had concealed the dead-body of his wife in the Latrine well of Pulin and he himself brought it out thereform. These two witnesses are disinterested persons, they have no enimus against the appellant or his family and as such there is no reason to disbelieve their testimony as to the recovery of the dead-body by the appellant himself following his admission. It will be seen that the appellant himself admitted in his confession (which we shall presently consider) that on his admission police took him to the house of Pulin and caused him to bring out the dead-body of his wife. Thus we are of the opinion that the aforesaid omission in the FIR could not be a reason for discarding the evidence of the witnesses on the point nor the same made the prosecution case doubtful in any manner.

93. It is true that amongst the witnesses P.Ws.1, 3, 7, and 12 are the close relations of deceased; they were vital witnesses and the occurrence took place in their presence. The defence extensively cross examined them but nothing could be elicited to shake their credibility in any manner whatsoever, so only for such cause their evidence should not be discarded.

94. The credit to be given to the statement of a witness is a matter not regulated by rule of procedure, but depends upon his knowledge of fact to which he testifies his disinterestedness, his integrity and his veracity. Apportion of oral evidence depends on such variable in consistence which as a human nature can not be reduced as a set formula (40 DLR 58).

95. The weight to be attached to the testimony of witness depends in a large measure upon various consideration some of which are in the face of it his evidence should be in consonance with probabilities and consistent with other evidence, and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. In a word evidence of a witness is to be looked at from point of view of its credibility, it is quite unsafe to discard evidence of witness which otherwise appears reasonable and probable because of some suggestion against truthfulness of the witness.

96. Evidence of close persons of the victim cannot be discarded more particularly when close persons does not impair the same. Straightforward evidence given by witness who is closed to deceased cannot be rejected on sole ground that they are interested in prosecution. Ordinarily close person will be last person to screen real culprit and falsely implicate a person. So relationship far from being ground of criticism is often a sure guarantee of its truth (40 DLR 58).

97. From the materials on record, we failed to discover any express motive of accused in the crime of murder, for such cause prosecution will not fail, since motive is not ingredient of offence, prosecution is not bound to prove the motive of the accused for committing the crime (42 DLR(AD)31; 10 MLR(AD)175}.

98. Motive does not play an effective role when premeditated and cold blooded murder is committed and established my irrefutable evidence. What is important is the nature of evidence and not the motive which may or may not be proved. None proof of motive cannot be a ground to discard the unimpeachable evidence ( PLD 2001 SC 333}.

99. Proof of motive or previous ill feeling is not necessary to sustain conviction when court is satisfied that appellants are assailants of the victim, but once motive was setup it was to be proved by the prosecution beyond doubt and failure to furnish cogent and reliable evidence could lead to adverse inference against prosecution (PLD 2000 Kar 128). Absence of motive is not ground for acquittal (PLD 1999 Lah 56). Particularly when ocular evidence is reliable and corroborated by medical evidence (AIR 2003 SC 3975). Appellate Division repeated the same view { 57 DLR(AD)(2005)75).

100. When offence proved motive is immaterial. Weakness of the motive alleged, though a circumstances to be taken into account, cannot be a ground for rejecting the direct testimony of ocular witness which is otherwise of a reliable character. If the offence has been satisfactory proved by direct evidence than it is immaterial as to whether the motive has been established or not (1968 P Cr. LJ 1251). 7 MLR(2002)119. If there is no sufficient direct evidence motive may be matter for consideration specially when the case is based on circumstantial evidence (51 DLR 103).

101. Motive is a matter of speculation for what moves a person to take the life of another is within his special knowledge and does not constitute a necessary ingredient of the offence of murder,(1968 Cr.LJ 962).

102. In the case of Noor Md. Vs. State 1999 MLD (Pakistan Monthly Law Digest) -60 held:

“Eye witnesses were natural witnesses of the occurrence who had not only furnished convincing account of incident in details, but had also withstood hard test of cross-examination successfully- No rancour had been ascribed to appellant-Relationship of eye witnesses with the deceased was not by itself sufficient to discredit their testimony – Record did not indicate any sign to support the idea of substitution of accused with real culprit, if any- ocular account was fully supported by medical evidence and attending circumstances-conviction of accused was upheld in circumstances.

103. In the case of Md. Azeem Vs. State 1998 Pakistan Criminal Law Journal-175 held:

Eye–witnesses who had no ill-will or motive against the accused had plausibly explained their presence at the spot and had corroborated their version given in their statements before the police-Ocular testimony was not in conflict with medical evidence-Prosecution had, thus, proved its case against accused beyond doubt- Conviction and sentence of death awarded to accused by trial Court were confirmed in circumstances

104. Therefore, we find that the prosecution successfully proved the charges against the convicts by cogent, convincing, unimpeachable evidence and beyond all reasonable doubt.

105. At the event of aforesaid situation, we also find support of our views by the following decisions.

(1) When there is enough material to prove the commission of offence of murder by the accused and that the evidence of eyewitnesses, though declared hostile, was reliable to some extent, the accused could be convicted for murder – Deepak v. State 1989 Cr.L.J. 143(MP).

(2) If the evidence of the solitary witness to murder is corroborated by medical evidence and FIR is promptly filed and there is absence of any evidence of grave and sudden provocation, the accused can lawfully be convicted for murder- Radhakrishnan v State (1989)1 Crimes 721(Mad)(DB).

(3) If there is consistent evidence of two eyewitnesses and FIR is lodged quickly naming the accused and there is corroborative medical evidence, the Supreme Court will not interfere to disturb the conviction- Bikkar v State(1989) 2 Crimes 1(SC).

(4) If the evidence of the eyewitnesses is corroborated by the circumstantial evidence, the accused must be convicted for murder- Harish v State (1989) 2 Crimes 72 (Del) (DB).

(5) Supreme Court will not interfere in appeal against order of conviction for murder passed by Sessions Judge and upheld by the High Court, when prosecution case was consistent with medical evidence and there was no delay in lodging F.I.R.- Amrik Singh V. State of Punjab 1981 Cr.L.J. 634; AIR 1981 SC 1171; 1981 SCC (Cr.) 252; 1981 Cr.L.J.(SC) 158.

(6) If circumstantial evidence is absolutely conclusive and clinching, conviction for murder will not be set aside merely on ground that murder-spot and recovery of some ornaments were not proved- Murari Lal v State of U.P. 1980 Cr.L.J. 1408; AIR 1981 SC 363(1979) SCC 612.

(7) If the circumstantial evidence against the accused in a murder case is firmly established and the circumstances unerringly point to the guilt of the accused and form a complete chain proving the guilt, the Supreme Court will not interfere with the concurrent findings except in case of grave injustice- Ashok V State 1989 Cr.L.J. 2124, AIR 1989 SC 1890; (1989)2 Crimes 423.

106. On further exploration of the evidence on record, we shall consider the impact of the injuries caused by the accused Sumon and Babul by inflicting kiris blows. P.W. 6 Dr. Shahjalal who examined the deceased Khurshed on 11-05-2000 at 10:45 p.m. and issued a certificate (Exhbt.6) and found the following injuries:

1. One incised injury size about 3" x ¼" x one surrounding Hemotoma size about 4" x4" in the right parietal occipital region.

2. One incised injuries size about 3"x ½" x skin in the right arm caused by sharp cutting weapon.

3. Illinois size about 3" x 1" in the right out lower chest caused by blunt weapon. After admission the condition of the patient deteriorated further and the patient is referred to Chittagong Medical College hospital .

Nature of injuries: Injury no.1 is grievous in nature and injury nos. 2 and 3 are simple in nature.

Time of injuries: Within four house from the time of occurrence.

107. P.W. 20 Dr. Abdul Hye who held autopsy upon the cadaver of deceased Khurshed found the following injuries:

1. One lacerated wound with stitches 11" size right parietal region of scalp and lacerated wound 2" mid parietal region with diffused haemorrhage at the side.

2. Bruise (a) right arm middle part back side 1" x ¼", (b) right anterior chest 1" x ½ " below right nipple, (c) right wrist 2 " x ½ ", (d) back of chest 3" x ½ " below both scapula transverse.

Brain: subdural clotted blood ¼", thickness present over all lobes of the brain.

108. It is very significant to point out that the doctor opined that the death was caused due to head injuries and with intracranial haemorrhage.

109. On close scrutiny of the post mortem report we find that two injuries found at the parietal region but the scalp and other vertebra surround head were found intact along with other organs connected with this regard.

110. We find that all the accused participated in the occurrence but the learned Judge convicted accused Sumon and Babul only under section 302 of the Penal Code.

111. Section 34 of the Penal Code lays down the principle of joint liability for doing a criminal act. The essence of the liability is to be found in the existence of common intention animating the accused persons to the doing of a criminal act in furtherance of the common intention of them all. "Common intention" of several persons is to be inferred from their conduct, manner of doing the act and the attending circumstance. If one has intention to do any act and others share this intention, their intention becomes "common intention", of them all. And if the act is done in furtherance of the common intention, then all who participated in the act are equally liable for the result of the act. It is true that in this case, as the evidence shows, there was no pre-plan of the accused persons to kill Khorshyed; but their common intention to kill Khorshed developed on the spot when they all simultaneously fell upon the victim as soon as he appeared on the scene. It appears that in this case as soon as Khorshed ran towards the accused persons they intended to kill him. The fact that some of them had caused fatal injuries and others caused minor injuries is immaterial if the act was done in furtherance of their common intention. Section 34 of the Penal Code is clearly found to be applicable in this case.

112. Now it is to be seen if the injuries of the deceased Khorshed are of such a nature as to constitute ‘murder’. The two injuries in the occipital region are the cause of death as the expert evidence of PW. 6 and PW-20 shows, while the other injuries are simple in nature. It is difficult to hold that these injuries were caused with the intention to cause the death, nor such injuries appear to be sufficient to cause death in the ordinary course of nature. But these injuries, though caused intentionally, are of such a nature that these are "likely to cause death". We do not think that this criminal act of causing the death falls into any of the four categories of criminal acts which constitute ‘murder’ as described in S. 300 of the Penal Code. We rather find that this criminal act was done with the intention of causing such injuries as are likely to cause death, as described in section 299 of the Penal Code. As such, it constitutes culpable homicide not amounting to murder, punishable under section 304 Part I of the Penal Code. With these regard reliance can be placed in the case of Sate Vs. Montu alias Nazrul Islam and other 44 DLR AD-287 and Joyaray vs. State of Tamil Nadu 1976 Crl. L.J. 1186(SC).

113. Moreover, the impugned judgment and order of conviction and sentence in its entirety is well founded in the facts and circumstances of the case. So, the submissions advanced by the learned Counsel for the defence in respect of merit of the case are not the correct exposition of law and facts. We have gone through the decisions referred by them. We are in respectful agreement with the principles enunciated therein but the facts leading to those case are quit e distinguishable to that of the instant case. However we have no hesitation to accept the later submissions regarding culpable homicidal not amounting to murder. On the contrary the submissions advanced by the learned Counsel for the prosecution regarding merit of the case prevails and appears to have a good deal of force.

114. In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the impugned judgment and order of conviction and sentence suffers from no legal infirmity with regard to the merit which calls for no interference by this Court. Thus the appeal having no merit fails.

115. In view of foregoing narrative;

A. The Criminal Appeal no. 4012 of 2004 is dismissed with modification of sentence to the effect that convict appellant Shamsuddin Master is convicted under section 324 of the Penal Code and sentenced to suffer rigorous imprisonment for the period he had already undergone.

B. The Criminal Appeal no. 4157 of 2004 is dismissed with modification of sentences to the effect that convict-appellants Siddique Ahmed, Iqbal Bahar, Abbas are convicted under section 323 of the Penal Code each and sentenced to suffer rigorous imprisonment for the period they had already undergone.

The convict appellant Babul is convicted under sections 304 Part I, 34 of the Penal Code and sentenced to suffer rigorous imprisonment for ten years and also to pay a fine of Tk.10,000/- in default to suffer rigorous imprisonment for one year more.

C. The Criminal Appeal no. 4231 of 2004 is dismissed with modification of sentences to the effect that the convict-appellants Mosharrafuddin alias Bappu, Surat Alam, and Tomon are convicted under section 323 of the Penal Code each and sentenced to suffer rigorous imprisonment for the period they had already undergone.

D. The Criminal Appeal No. 4679 of 2004 is dismissed with modification of sentence to the effect that the convict appellant Sumon is convicted under sections 304 Part I, 34 of the Penal Code and sentenced to suffer rigorous imprisonment for ten

Criminal Appeal No. 4012 of 2004 with Criminal Appeal No. 4157 of 2004 with Criminal Appeal No. 4231 of 2004 with Criminal Appeal No. 4679 of 2004.

Shamsuddin Chowdhury and others Vs. Government of Bangladesh

Case No: Civil Petition for Leave to Appeal No. 917 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Sufia Khatun,,

Citation: V ADC (2008) 621

Case Year: 2008

Appellant: Shamsuddin Chowdhury and others

Respondent: Government of Bangladesh

Subject: Property Law,

Delivery Date: 2006-08-29

Shamsuddin Chowdhury and others Vs. Government of Bangladesh
V ADC (2008) 621

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J

Shamsuddin Chowdhury and others……………........Petitioners
Vs.
Government of the People's Republic of Bangladesh, represented by the Deputy Commissioner, Bhola and others………………........Respondents

Judgment
August 29, 2006.

The High Court Division discharged the Rule on the finding that plaintiffs failed to establish their claim as regard the land in suit and that also failed to prove their possession in the land in suit. The High Court Division while discharging the Rule has observed that plaintiffs did not seek the relief as to their title in the land in suit and that the plaintiffs did not establish their claim as regard the land in suit by adducing evidence. ….. (5)

Lawyers Involved:
Sufia Khatun, Advocate-on-Record-For the Petitioners.
Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 917 of 2005.
From the Judgment and Order dated May 9, 2005 passed by the High Court Division n Civil Revision No. 3030 of 2000).

Judgment

Md Ruhul Amin J.- This petition for leave to appeal has been filed against the judgment dated May 9, 2005 of a Single Bench of the High Court Division in Civil Revision No.3030 of 2000 discharging the Rule obtained against the judgment and decree dated April 25, 2000 of the 1st Court of Subordinate Judge (now Joint District Judge) Bhola in Title Appeal No. 25 of 1997/dismissing the same and thereby affirming the judgment and decree dated February 27, 1999 of the Court of Assistant Judge, Manpura, Bhola in Title Suit No. 3 of 1994 dismissing the same. The suit was filed seeking declaration that the orders described in schedule 'Ka' and 'Kha' and the proceedings initiated on the basis of the said orders are illegal, void, without jurisdiction and as such not binding upon the plaintiffs.

2. It appears that the plaintiffs are claiming the land measuring 115.71 acres of Touzi Nos. 1763 and 1764 of the Bakerganj Collectorate and upon making claim on the land of the said Touzis in respect of which suit has been filed. It is the case of the plaintiffs that the land of the said Touzis dilluviated and that after alluvion they as the tenants of the land of the said Touzis approached the authority for allotment of the land so alluviated and the authority allowed the prayer so made and that as against the said order the Government moved the Board of Revenue by way of appeal and the same was dismissed, that Title Suit No.90 of 1994 was also dismissed and thus the permanent settlement holder Raja Rajesh Kanta Roy got the land and said Raja Rajesh Kanta Roy executed a Power of Attorney appointing Kamaluddin Chowdhury as the Attorney and the said Attorney settled the land of the aforementioned Touzis to plaintiffs and that the plaintiffs obtained settlement from said Kamaluddin Chowdhury and that while the plaintiffs were in possession of their land there was a dispute as to whether the land claimed by them is within the District of Noakhali and in that connection Title Suit No.159 of 190 was filed in the Court of Subordinate Judge, Barisal and therein plaintiffs' title was declared, that the plaintiffs approached the authority to accept rent from them but the defendants claimed half of the paddy produced and also refused to accept rent and .that ultimately the Authority started certificate cases and thereupon the plaintiffs are constrained to file the suit challenging legality of the certificate cases as well as the order described in schedule 'Ka'

3. The suit was contested by the defendant Nos. 1-4 as well as by the defendant No.5 by filing separate sets of written statement denying the material averments made in the plaint and contending, inter alia, that the suit is not maintainable and the same is barred by limitation and that the land in suit is the khas land of the Government1 and that the plaintiffs on the basis of their pattan said to have been obtained from Kamal Uddin Chowdhury did not pay rent and as such certificate case has been started. It was the case of the defendant No. 5 that the land shown in 'Ga' schedule went under water and as such the plaintiffs have no right, title and possession.

4. The trial Court dismissed the suit on the finding that the suit filed challenging the legality of the certificate case is not maintainable. The plaintiffs went on appeal but without any success. Thereupon the plaintiffs moved the High Court Division in revisional jurisdiction and obtained Rule.

5. The High Court Division discharged the Rule on the finding that plaintiffs failed to establish their claim as regard the land in suit and that also failed to prove their possession in the land in suit. The High Court Division while discharging the Rule has observed that plaintiffs did not seek the relief as to their title in the land in suit and that the plaintiffs did not establish their claim as regard the land in suit by adducing evidence.

6. It is seen that plaintiffs have filed the suit seeking declaration the proceedings initiated for realization of rent are illegal and void and not binding upon them. The plaintiffs could not establish their title in the land in suit and that they being in possession of the land which belongs to the Government and they having not paid rent required to be filed by the kind of person as the plaintiffs are the relevant authority has initiated the proceedings in question. In the said state of the matter we are of the view the High Court Division as well as courts below were not in error in holding that the suit filed by the plaintiffs is not maintainable.

The learned Advocate-on-record could not point out error of the kind in the judgment of the High Court Division calling for interference.
Accordingly the petition is dismissed.
Ed.

Shamsul Alam Golap @ Md. Shamsul Alam Golap Vs. The State (Syed Abu Kowser Md. Dabirush-Shan, J.)

Case No: Criminal Miscellaneous Case No. 19901 of 2011

Judge: Syed Abu Kowser Md. Dabirush-Shan, J

Court: High Court Division,

Advocate: Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad,

Citation: ILNJ (2012)

Case Year: 2011

Appellant: Shamsul Alam Golap Alias Md. Shamsul Alam

Respondent: The State

Subject: Code of Criminal Procedure

Delivery Date: 2020-01-27

Mr. Syed A.B. Mahmudul Huq, J.

Mr. Syed Abu Kowser Md. Dabirush-Shan, J.

Judgment

19.10.2011 (Criminal Miscellaneous Jurisdiction)

} Shamsul Alam Golap Alias Md. Shamsul Alam } Golap

. . Accused-Petitioner

The State . . . Opposite Party

Code of Criminal Procedure (V of 1898)

Sections 167 (5) and 498

The cardinal principle of law is enunciated in Section 167 (5) of the Code that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. From the proviso to this Section it appears that it casts an obligation towards Court to record the reasons for not granting bail. In the absence of any material for not submitting police report by the IO for a long period of the one year and eight months it is difficult for the court to assign and record the reason as to why the bail will not be granted. It appears that 14 co-accused have already been granted bail by this Hon’ble court for which the petitioner is equally entitled to go on bail. Considering the provisions of Section 167(5) of the Code for non-submission of police report and the harassment of the accused for languishing in the jail custody for more than one year and eight months the accused petitioner was enlarged on bail. ..(13 and 14).

Major (Retd) M. Khairuzzaman -Vs- The State, 3 B.L.C-344; Anwar Hossain (Md) -Vs- The State, 48 D.L.R-276.

Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad

For the petitioner

Mr. Mahbubey Alam, Attorney General with Mr. Biswajit Deb Nath, D.A.G

For the State.

Judgment

SYED ABU KOWSER MD. DABIRUSH-SHAN, J :

This rule at the instance of accused-petitioner Shamsul Alam Golap alias Shamsul Alam Golap under Section 498 of the Code of Criminal Procedure was issued on 17-7-2011 calling upon the opposite party to show cause as to why the
accused-petitioner should not be enlarged on bail in M.G.R.Case No. 151 of 2010 arising out of Motihar P.S. Case

2. The short fact of the F.I.R. case is that on 9.2.2010 one Majedul Islam Apu, General Secretary, Bangladesh Chhatra League, Rajshahi University Unit lodged the First Information Report with the Motihar Police Station against 35 accused-persons named in the F.I.R. along with 15/20 unknown persons. The said F.I.R. was recorded as Motihar P.S. Case No.05 dated 9-2-2010 under Sections 148/ 44/324/325/356/ 307/302/ 201/114/34 of the Penal Code and also Section 3 of the Explosive Substance Act. The contention of the F.I.R is that on 9-22010 the accused-persons being armed with deadly weapons like Chapati, ramdao, Chaines axe, iron rod, Pistol etc. entered into the T.V. room of S.M. Hall of Rajshahi University with a ill motive of killing. Then accused Shamsul Alam Golap ordered the other accused-persons to kill the activists of the Chhatra League and then the accused Reza caused grievious hurt on the head of Shafiullah with a Chapati. Accused Sabbir caused grievous injury to the waist of Shafiullah with Chapati, accused Arif injured on the head of Taufikul Islam with Chinese axe and accused Rabiul inflicted several blow one after another on the back of Lutfor Rahman by Chapati and when Faruque protested the same the accused Khaled inflicted a ram dao blow on the right rips of Faruque then accused Mobarek Hossain hit on the back side of the head of deceased Faruque by a ram dao and accused Imon and Saifuddin caught hold the right hand of deceased Faruque and accused Liton and Nazmul Hoque by hitting on the left hand by a iron pipe broke his hand. Thereafter accused Rabiul, Tafshir, Shaheen, Milon, Ahad and Anis broke his leg by inflicting iron pipe blow as a result Faruque fell down on the ground then Shamsul Alam Golap pressed on his right rips by his leg. Thereafter when the general student came forward for the rescue of Faruque accused Shamsul Alam Golap managed to escape by firing pistol and Mobarek po inted a cut rifle towards the general student. Thereafter the accused-persons ensured the death of Faruque and accused Obaidul, Sumon, Gazi, Bappi, Raju, Maruf and some unknown accused carried the dead body of Faruque out of T.V. room of S.M.Hall. At that time accused Ahad and Anis blasted a cocktail to frighten the general student for which the informant and others could not come to know where the dead body of Faruque was taken. After searching throughout the night dead body of Faruque was recovered from a manhole of Syed Amir Hall with the help of police. Thereafter the injured persons were admitted into the Rajshahi Medical College Hospital for treatment whose condition
was critical and the informant could recognize the accused persons with the help of electric light. Thereafter police arrested the accused-petitioner along with others on 24-3-2010.

3. Earlier the bail petition was moved before the learned Sessions Judge, Rajshaji on 30-52011 who was pleased to reject the prayer for bail of the accused petitioner by his order dated 30-52011.

4. Being aggrieved by and dissatisfied with the order of rejection of bail the accused-petitioner preferred the instant bail petition before the High Court Division under Section 498 of the Code of Criminal Procedure and obtained the present rule.

5. Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad, the learned Counsel appearing on behalf of the accused-petitioner submits that the accused-petitioner is absolutely innocent and has committed no offence as alleged. The accused- petitioner has been implicated in this case only because he is the President of Bangladesh Islamic Chhatra Shibir, Rajshaji University Unit. But as a matter of fact he was not at all connected with the alleged murder of Faruque. He is a brilliant student of M.Sc. Class studying in the Department of Genetics in the University of Rajshahi. The learned Counsel further submits that the accused-petitioner himself informed the Police Commissioner, Rajshahi over telephone about the occurrence and for redress. Next he submits that informant is the General Secretary of Chhatra League, Rajshahi University Unit. The occurrence took place at dead of night i.e. at 1-30 A.M. The informant narrated the entire scenario of the occurrence as if he was an onlooker. The facts which has been revealed that there was a free fight between two rival groups of students unit one was Chhatra League and another was Bangladesh Islamic Chhatra Shibir. The learned Counsel next submits that under this chaotic and Aquatic situation it was neither possible nor desirable that an office bearer of Chatra league i.e. Secretary General who was a party to the fight will observe the entire occurrence as a silent spectator without sustaining any assault or injury or without taking part in the fight.

6. The learned Counsel finally submits that the accused-petitioner was arrested on 24-3-2010 and since then he has been languishing in the jail custody for about l(one) year 8(eight) months but till to-day the police could not submit the report and also it is not known when the police report will he submitted. Whereas the statutory period of submitting the police report under Section 167(5) of the Code of Criminal Procedure has been laid down that the police report should be submitted within 120 days from the date of receipt of the information relating to the commission of the offence. By now more than l(one) year 8(eight) months have already been elapsed but the Motihar Police could not submit the charge-sheet as yet. The accused petitioner who is a final year student of M.Sc. Class, his studies has been greatly hampered and disrupted as a result he could appear at the final examination.

7. Under the facts and circumstances of the case, the learned Counsel reiterate that the co-accused who has got specific overt act in the F.I.R. were granted bail by the High Court Division in Criminal Miscellaneous Case No. 31031 of 2010, Criminal Misc. Case No. 19257 of 2010, Criminal Misc. Case No. 9845 of 2010 and Criminal Misc. Case No. 20433 of 2010.

8. Considering the whole aspect of the case as well as the legal position of non submission of the police report within the statutory period of 120 days, the accused-petitioner is entitled to go on bail.

9. Mr. Mahbubey Alam, learned Attorney General with Mr Biswajil Deb Nath, the learned Deputy Attorney General appearing on behalf of the state opposes the prayer for bail vehemently and submits that it was a very sensational case with a gruesome murder and it was a fight between two rival groups of students of Rajshaji University which created a sensation all over the country and has got a serious impact in the society. Next he submits that there is specific allegation against the accused- petitioner in the F.I.R. that he being the active leader of Bangladesh Islamic Chhatra Shibir who passed the order for killing the activities of Chhatra League and also he actively took part in the occurrence. He pressed the rips of deceased Faruque by his leg to ensure his death. He also opened blank fire by a pistol to terrify the talented and brilliant general student. The learned Attorney General further submits that in reply to the submission of the learned Counsel for the accused-petitioner in respect of section 167(5) of the Code of Criminal Procedure no doubt this section is an enabling power to grant bail to an accused but this is not a mandatory but directory provision of law.

10. In this backdrop of the case where a heinous crime has been committed under the active role and participation of the accused-petitioner he should not be granted bail only on the score of mere non submission of police report within the time limit. The learned Attorney General in support of his contention referred the case of Major (Retd.) M. Khairuzzaman -Vs- The State which was reported in 3 B.L.C-344 and another decision referred by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State reported in 48 D.L.R- 276 wherein it has been held:

"The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory- on the expiry of the period for investigation the accused cannot claim bail as a matter of right."

11. In the case of Major (Retd.) M. Khairuzzaman - Vs- The State, wherein it is held:

"Although Section 167(5) of the Code of Criminal Procedure enjoins that if investigation is not concluded within 120 days from the date of receipt of the information relating to commission of the offence, the Court, if satisfied, can release the accused-person on bail but he cannot claim such bail as a matter of right when the delay, in the face of peculiar circumstances, in completion of investigation of the case is no ground to release the accused-petitioner on bail".

12. The learned Counsel finally submits that in this back ground of the case and also the legal position the accused-petitioner should not be allowed to go on bail and if he is granted bail in that case again he will create commotion in the University Campus.

13. Heard the learned Counsel for the accused- petitioner as well as the learned Attorney General for the state. Perused the F.I.R., record and other connected papers. It appears from the record that the accused-petitioner was arrested on 24-3-2010 and the F.I.R. was lodged on 9-2-2010. Meanwhile l (one) year 8(eight) months have already been elapsed but the police could not submit charge-sheet as yet. The cardinal principle of law which has been enunciated in Section 167(5) of the Code of Criminal Procedure is that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. In the proviso of section it has been stated "Provided that for if an accused is not released on bail under this sub-section the Magistrate or as the case may be the Court of Sessions shall record the reasons for it". It appears that this section casts an obligation towards Court for what reason bail could not be granted. In the instant case prosecution could not produce any materials before the Court as to why the Investigating Officer could not submit the police report within the long time of l(one) year and 8(eight) months. If the Investigating Officer faced any impediment to submit the police report in that case the Investigating Officer ought have written the cause of inordinate delay in submitting police report in black and white. But the prosecution could not produce any materials showing what are the handicaps in submitting the police report. In the absence of production of any such impediment before the Court we are absolutely helpless to assign and record the reasons as to why the bail is not granted according to proviso of Section 167(5) of the Code. It further appears from the record and also from the submission of the learned Counsel for the accused-petitioner that 14 co-accused have already been granted bail by the Hon'ble High Court Division and among them one F.I.R. named accused No. 27 Raidul Islam was also granted bail. If the F.I.R. named accused Raidul Islam is granted bail in that case the accused-petitioner is equally entitled to go on bail. The decision cited by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State and Major (Retd) M.Khairuzzaman vs. state also leans support to the granting of bail to accused-petitioner. Wherein it has been held: that the purpose for the fixation of the period of investigation is meant for the speedy trial of the case and to save the accused from unnecessary harassment in jail custody by prolonging investigation. But this provision is directory and not mandatory. Therefore, on the expiry of the period for investigation the accused cannot claim his bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially". The purpose of adding this section after the amendment in 1992 is to enable the Court to grant bail of the accused-persons where the investigating officer unnecessarily prolonging the investigation to give harassment and suffering to the accused-petitioner.

14. In the context of the facts and circumstances of the case as well as the legal position particularly the provision of section 167(5) of the Code of Criminal Procedure for non submission of charge- sheet and also considering the harassment of the accused for languishing in the jail custody for more than l(one) year 8(eight) months, we are inclined to enlarge the accused-petitioner on bail.

15. In the result, the rule is made absolute.

16. Let the accused-petitioner Shamsul Alam Golap alias Md. Shamsul Alam Golap, son of Motaleb Hossain of Village-Kazipara, P.S. Godagari, District-Rajshahi be enlarged on bail on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Rajshahi till the framing of charge.

However, if the accused-petitioner misuses the privilege of bail in any manner whatsoever, the trial Court is at liberty to cancel the bail.

Ed.

Shamsul Alam Golap Vs. The State, 1 LNJ (2012) 289

Case No: Criminal Miscellaneous Case No. 19901 of 2011

Court: High Court Division,,

Advocate: Mr. Mahbubey Alam,Khandaker Mahbub Hossain,,

Citation: 1 LNJ (2012) 289

Case Year: 2012

Appellant: Shamsul Alam Golap

Respondent: The State

Subject: Bail,

Delivery Date: 2011-10-19

HIGH COURT DIVISION
(Criminal Miscellaneous Jurisdiction)

Syed A.B. Mahmudul Huq, J.
Syed Abu Kowser Md. Dabirush-Shan, J.

Judgment
19.10.2011

Shamsul Alam Golap Alias Md. Shamsul Alam Golap

. . Accused-Petitioner

The State

. . . Opposite Party

Code of Criminal Procedure (V of 1898)
Sections 167(5) and 498
The cardinal principle of law is enunciated in Section 167(5) of the Code that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. From the proviso to this Section it appears that it casts an obligation towards Court to record the reasons for not granting bail. In the absence of any material for not submitting police report by the IO for a long period of the one year and eight months it is difficult for the court to assign and record the reason as to why the bail will not be granted. It appears that 14 co-accused have already been granted bail by this Hon’ble court for which the petitioner is equally entitled to go on bail. Considering the provisions of Section 167(5) of the Code for non-submission of police report and the harassment of the accused for languishing in the jail custody for more than one year and eight months the accused petitioner was enlarged on bail. ...(13 and 14).

Major (Retd) M. Khairuzzaman -Vs- The State, 3 B.L.C-344; Anwar Hossain (Md) -Vs- The State, 48 D.L.R-276.

Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad

---For the petitioner

Mr. Mahbubey Alam, Attorney General with Mr. Biswajit Deb Nath, D.A.G

---For the State.

Criminal Miscellaneous Case No. 19901 of 2011

Judgment

SYED ABU KOWSER MD. DABIRUSH-SHAN, J:

1.         This rule at the instance of accused-petitioner Shamsul Alam Golap alias Shamsul Alam Golap under Section 498 of the Code of Criminal Procedure was issued on 17-7-2011 calling upon the opposite party to show cause as to why the accused-petitioner should not be enlarged on bail in M.G.R.Case No. 151 of 2010 arising out of Motihar P.S. Case.

2.         The short fact of the F.I.R. case is that on 9.2.2010 one Majedul Islam Apu, General Secretary, Bangladesh Chhatra League, Rajshahi University Unit lodged the First Information Report with the Motihar Police Station against 35 accused-persons named in the F.I.R. along with 15/20 unknown persons. The said F.I.R. was recorded as Motihar P.S. Case No.05 dated 9-2-2010 under Sections 148/ 44/324/325/356/ 307/302/ 201/114/34 of the Penal Code and also Section 3 of the Explosive Substance Act. The contention of the F.I.R is that on 9-2-2010 the accused-persons being armed with deadly weapons like Chapati, ramdao, Chaines axe, iron rod, Pistol etc. entered into the T.V. room of S.M. Hall of Rajshahi University with a ill motive of killing. Then accused Shamsul Alam Golap ordered the other accused-persons to kill the activists of the Chhatra League and then the accused Reza caused grievious hurt on the head of Shafiullah with a Chapati. Accused Sabbir caused grievous injury to the waist of Shafiullah with Chapati, accused Arif injured on the head of Taufikul Islam with Chinese axe and accused Rabiul inflicted several blow one after another on the back of Lutfor Rahman by Chapati and when Faruque protested the same the accused Khaled inflicted a ram dao blow on the right rips of Faruque then accused Mobarek Hossain hit on the back side of the head of deceased Faruque by a ram dao and accused Imon and Saifuddin caught hold the right hand of deceased Faruque and accused Liton and Nazmul Hoque by hitting on the left hand by a iron pipe broke his hand. Thereafter accused Rabiul, Tafshir, Shaheen, Milon, Ahad and Anis broke his leg by inflicting iron pipe blow as a result Faruque fell down on the ground then Shamsul Alam Golap pressed on his right rips by his leg. Thereafter when the general student came forward for the rescue of Faruque accused Shamsul Alam Golap managed to escape by firing pistol and Mobarek pointed a cut rifle towards the general student. Thereafter the accused-persons ensured the death of Faruque and accused Obaidul, Sumon, Gazi, Bappi, Raju, Maruf and some unknown accused carried the dead body of Faruque out of T.V. room of S.M.Hall. At that time accused Ahad and Anis blasted a cocktail to frighten the general student for which the informant and others could not come to know where the dead body of Faruque was taken. After searching throughout the night dead body of Faruque was recovered from a manhole of Syed Amir Hall with the help of police. Thereafter the injured persons were admitted into the Rajshahi Medical College Hospital for treatment whose condition was critical and the informant could recognize the accused persons with the help of electric light. Thereafter police arrested the accused-petitioner along with others on 24-3-2010.

3.         Earlier the bail petition was moved before the learned Sessions Judge, Rajshaji on 30-5-2011 who was pleased to reject the prayer for bail of the accused petitioner by his order dated 30-5-2011.

4.         Being aggrieved by and dissatisfied with the order of rejection of bail the accused-petitioner preferred the instant bail petition before the High Court Division under Section 498 of the Code of Criminal Procedure and obtained the present rule.

5.         Mr. Khandaker Mahbub Hossain with Mr. Sharif Ahmad, the learned Counsel appearing on behalf of the accused-petitioner submits that the accused-petitioner is absolutely innocent and has committed no offence as alleged. The accused-petitioner has been implicated in this case only because he is the President of Bangladesh Islamic Chhatra Shibir, Rajshaji University Unit. But as a matter of fact he was not at all connected with the alleged murder of Faruque. He is a brilliant student of M.Sc. Class studying in the Department of Genetics in the University of Rajshahi. The learned Counsel further submits that the accused-petitioner himself informed the Police Commissioner, Rajshahi over telephone about the occurrence and for redress. Next he submits that informant is the General Secretary of Chhatra League, Rajshahi University Unit. The occurrence took place at dead of night i.e. at 1-30 A.M. The informant narrated the entire scenario of the occurrence as if he was an onlooker. The facts which has been revealed that there was a free fight between two rival groups of students unit one was Chhatra League and another was Bangladesh Islamic Chhatra Shibir. The learned Counsel next submits that under this chaotic and Aquatic situation it was neither possible nor desirable that an office bearer of Chatra league i.e. Secretary General who was a party to the fight will observe the entire occurrence as a silent spectator without sustaining any assault or injury or without taking part in the fight.

6.         The learned Counsel finally submits that the accused-petitioner was arrested on 24-3-2010 and since then he has been languishing in the jail custody for about l(one) year 8(eight) months but till to-day the police could not submit the report and also it is not known when the police report will he submitted. Whereas the statutory period of submitting the police report under Section 167(5) of the Code of Criminal Procedure has been laid down that the police report should be submitted within 120 days from the date of receipt of the information relating to the commission of the offence. By now more than l(one) year 8(eight) months have already been elapsed but the Motihar Police could not submit the charge-sheet as yet. The accused petitioner who is a final year student of M.Sc. Class, his studies has been greatly hampered and disrupted as a result he could appear at the final examination.

7.         Under the facts and circumstances of the case, the learned Counsel reiterate that the co-accused who has got specific overt act in the F.I.R. were granted bail by the High Court Division in Criminal Miscellaneous Case No. 31031 of 2010, Criminal Misc. Case No. 19257 of 2010, Criminal Misc. Case No. 9845 of 2010 and Criminal Misc. Case No. 20433 of 2010.

8.         Considering the whole aspect of the case as well as the legal position of non submission of the police report within the statutory period of 120 days, the accused-petitioner is entitled to go on bail.

9.         Mr. Mahbubey Alam, learned Attorney General with Mr Biswajil Deb Nath, the learned Deputy Attorney General appearing on behalf of the state opposes the prayer for bail vehemently and submits that it was a very sensational case with a gruesome murder and it was a fight between two rival groups of students of Rajshaji University which created a sensation all over the country and has got a serious impact in the society. Next he submits that there is specific allegation against the accused-petitioner in the F.I.R. that he being the active leader of Bangladesh Islamic Chhatra Shibir   who passed the order for killing the activities of Chhatra League and also he actively took part in the occurrence. He pressed the rips of deceased Faruque by his leg to ensure his death. He also opened blank fire by a pistol to terrify the talented and brilliant general student. The learned Attorney General further submits that in reply to the submission of the learned Counsel for the accused-petitioner in respect of section 167(5) of the Code of Criminal Procedure no doubt this section is an enabling power to grant bail to an accused but this is not a mandatory but directory provision of law.

10.       In this backdrop of the case where a heinous crime has been committed under the active role and participation of the accused-petitioner he should not be granted bail only on the score of mere non submission of police report within the time limit. The learned Attorney General in support of his contention referred the case of Major (Retd.) M. Khairuzzaman -Vs- The State which was reported in 3 B.L.C-344 and another decision referred by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State reported in 48 D.L.R-276 wherein it has been held:

11. In the case of Major (Retd.) M. Khairuzzaman -Vs- The State, wherein it is held:

"Although Section 167(5) of the Code of Criminal Procedure enjoins that if investigation is not concluded within 120 days from the date of receipt of the information relating to commission of the offence, the Court, if satisfied, can release the accused-person on bail but he cannot claim such bail as a matter of right when the delay, in the face of peculiar circumstances, in completion of investig-ation of the case is no ground to release the accused-petitioner on bail".

12.       The learned Counsel finally submits that in this back ground of the case and also the legal position the accused-petitioner should not be allowed to go on bail and if he is granted bail in that case again he will create commotion in the University Campus.

13.       Heard the learned Counsel for the accused-petitioner as well as the learned Attorney General for the state. Perused the F.I.R., record and other connected papers. It appears from the record that the accused-petitioner was arrested on 24-3-2010 and the F.I.R. was lodged on 9-2-2010. Meanwhile l (one) year 8(eight) months have already been elapsed but the police could not submit charge-sheet as yet. The cardinal principle of law which has been enunciated in Section 167(5) of the Code of Criminal Procedure is that if police cannot submit police report within the statutory period of 120 days, in that case accused may be allowed to go on bail. In the proviso of section it has been stated "Provided that for if an accused is not released on bail under this sub-section the Magistrate or as the case may be the Court of Sessions shall record the reasons for it". It appears that this section casts an obligation towards Court for what reason bail could not be granted. In the instant case prosecution could not produce any materials before the Court as to why the Investigating Officer could not submit the police report within the long time of l(one) year and 8(eight) months. If the Investigating Officer faced any impediment to submit the police report in that case the Investigating Officer ought have written the cause of inordinate delay in submitting police report in black and white. But the prosecution could not produce any materials showing what are the handicaps in submitting the police report. In the absence of production of any such impediment before the Court we are absolutely helpless to assign and record the reasons as to why the bail is not granted according to proviso of Section 167(5) of the Code. It further appears from the record and also from the submission of the learned Counsel for the accused-petitioner that 14 co-accused have already been granted bail by the Hon'ble High Court Division and among them one F.I.R. named accused No. 27 Raidul Islam was also granted bail. If the F.I.R. named accused Raidul Islam is granted bail in that case the accused-petitioner is equally entitled to go on bail. The decision cited by the learned Attorney General in the case of Anwar Hossain (Md) -Vs- The State and Major (Retd) M.Khairuzzaman vs. state also leans support to the granting of bail to accused-petitioner. Wherein it has been held: that the purpose for the fixation of the period of investigation is meant for the speedy trial of the case and to save the accused from unnecessary harassment in jail custody by prolonging investigation. But this provision is directory and not mandatory. Therefore, on the expiry of the period for investigation the accused cannot claim his bail as a matter of right. It is ultimately the discretion of the Court which has to be exercised judicially". The purpose of adding this section after the amendment in 1992 is to enable the Court to grant bail of the accused-persons where the investigating officer unnecessarily prolonging the investigation to give harassment and suffering to the accused-petitioner.

14.       In the context of the facts and circumstances of the case as well as the legal position particularly the provision of section 167(5) of the Code of Criminal Procedure for non submission of charge-sheet and also considering the harassment of the accused for languishing in the jail custody for more than l(one) year 8(eight) months, we are inclined to enlarge the accused-petitioner on bail.

15.       In the result, the rule is made absolute.

16.       Let the accused-petitioner Shamsul Alam Golap alias Md. Shamsul Alam Golap, son of Motaleb Hossain of Village-Kazipara, P.S. Godagari, District-Rajshahi be enlarged on bail on furnishing bail bond to the satisfaction of the Chief Metropolitan Magistrate, Rajshahi till the framing of charge.
However, if the accused-petitioner misuses the privilege of bail in any manner whatsoever, the trial Court is at liberty to cancel the bail.

Ed.

Shamsul Arafin Khan Vs. Kazal Miah and others, 49 DLR (AD) (1997) 175

Case No: Civil Appeal No. 58 of 1996

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Md. Nawab Ali,,

Citation: 49 DLR (AD) (1997) 175

Case Year: 1997

Appellant: Shamsul Arafin Khan

Respondent: Kazal Miah and others

Subject: Revisional Jurisdiction,

Delivery Date: 1997-1-13

Supreme Court
Appellate Division
(Civil)

Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
BB Roy Choudhury, J.

Shamsul Arafin Khan
…………………..Appellant
Vs.
Kazal Miah and others
………………… Respondents

Judgment
January 13th, 1997

Code of Civil Procedure (V of 1908)
Section 115
Disposal of the revisional application without any Rule nor any notice being served upon the appellant for appearing in the case when the matter was taken up for hearing is illegal.

Lawyers Involved:
Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
Md. Nowab Ali, Advocate-on-Record—For Respondent No. 1.
Not represented—Respondent Nos. 2-4.

Civil Appeal No. 58 of 1996.
(From the judgment and order dated August 20, 1996 passed by the High Court Division in Civil Order No. 2474 of 1996).

JUDGMENT

Latifur Rahman J:

This Appeal following leave by the appellant who was an election petitioner, calls in question the judgment and order passed by a Single Judge of the High Court Division in Civil Order No. 2474 of 1996 on 20-8-96 setting aside the order dated 30-6-96 passed by the Additional District Judge, First Court, Brahmanbaria in Election Tribunal Appeal No. 5 of 1993 dismissing the said appeal for default which arose from the judgment and order of Election Tribunal Case No. 13 of 1992 of the Court of Assistant Judge and Election Tribunal allowing the election petition on 31-5-93.

2. The short fact relevant for disposal of this appeal may be briefly narrated as follows:

3. Respondent No. 1 Kajal Miah was declared elected as the Chairman of Birgaon Union Parishad within PS Nabinagar, District Brahmanbaria in the election held on 26-2-92. The appellant who was a contesting candidate challenged the election by filing an election petition on 13-4-92 contending, inter alia, that the adjourned election held on 26-2-92 for Ward No. 1 at Amtali Primary School Centre has been vitiated by practicing fraud in the said election by the said elected Chairman. The appellant prayed for setting aside the election of that polling station and for holding fresh election. Respondent No. 1 contested the case by filing written objection and denied all the material allegations.

4. The Election Tribunal allowed the election petition on contest and set aside the election held on 26-2-92 of Amtali Primary School Centre of Ward No. 1 and directed for holding re-election at that centre. Respondent No. 1 on 28-7-93 preferred Election Tribunal Appeal No. 5 of 1993 in the Election Appellate Tribunal and did not pursue the same after several adjournments and finally the same was dismissed for default on 30-6-96. In Revision, a learned Single Judge of the High Court Division made the Rule absolute and restored the appeal to its file and number subject to payment of Taka 5,000.00 to the appellant within 30 days by respondent No. 1 in default the order of the High Court Division shall stand vacated and the appeal will be deemed to have been dismissed.

5. Leave was granted to consider whether the learned Single Judge of the High Court Division acted legally in recalling his earlier order of rejection of the revisional application as not being pressed without assigning any reason and granted full relief to respondent No. 1 without issuing any Rules upon the appellant affording any opportunity to appear In the case o a failure of justice.

6. In the election tribunal case the appellant who was the election petitioner got the relief wherein the election held on 20-2-92 in Ward No. 1 of Amtali Primary School Centre was declared as a whole void and the tribunal ordered for holding a fresh election in that centre. Thereafter respondent No. 1 filed Election Tribunal Appeal No. 5 of 1993. In spite of several adjournments he did not appear on the date of hearing of the appeal and the appeal was dismissed for default. In revision while exercising the revisional jurisdiction the learned Single Judge by his order dated 18-8-96 rejected the application as not been pressed after observing as follows:

“The learned Advocate for the petitioner submits that he has instruction not to pass this application. Hence this application is rejected as being not pressed.”

7. Later on the unsigned order was recalled. There is in fact nothing on record to show whether the unsigned order was recalled suo motu or on the prayer of the learned Advocate for respondent No.1. No reason was assigned to recall the unsigned order of the learned Judge. Thereafter on 20-8-96 the revision was disposed of and the election tribunal appeal was restored to its file and number after setting aside the order of dismissal for default of the appeal subject to payment of Taka 5,000.00 by the appellant to respondent No. 1. In disposing of this revisional application it appears that neither any Rule nor any notice was served upon the appellant for appearing in the case when the matter was taken up for hearing.

8. This practice of granting relief summarily without issuing any Rule is held to be illegal and unfair by this Division in the case of Abdul Wahab vs. Ali Ahmed reported in 44 DLR (AD) 55. In that view of the matter, the exercise of jurisdiction by the High Court Division in revision appears to have been done illegally without giving any fair hearing to the appellant.

Accordingly, the appeal is allowed and the impugned order set aside without any order as to costs.

Ed.

Shamsul Hoque Vs. Upazila Nirbahi Officer and others 2017 (2) LNJ 199

Case No: Civil Revision No. 5018 of 2006

Judge: Mahmudul Hoque. J.

Court: High Court Division,

Advocate: Mr. Mustaque Ahmed Chowdhury,

Citation: 2017 (2) LNJ 199

Case Year: 2016

Appellant: Shamsul Hoque

Respondent: Upazila Nirbahi Officer and others

Subject: Civil Law

Delivery Date: 2017-11-14

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Mahmudul Hoque, J

Judgment on

10.05.2016

}

Shamsul Hoque

.. Plaintiff-Respondent-Petitioners

-Versus-

Upazila Nirbahi Officer and others

... Defendant-Appellant-Opposite Parties

Specific Relief Act, (I of 1877)

Section 52

A person in possession is legally entitled to retain his possession and in the absence of any lawful claim of the defendants, they are not in any way entitled to dispossess the plaintiff-petitioner from the suit land without due process of law. . . .(17)

Code of Civil Procedure, (V of 1908)

Order XLI, Rule 31

The appellate court in its judgment neither controverted the observations made by the trial court regarding possession of the plaintiff-petitioner in the suit land nor appreciated the documents in its true perspective and as such, this court finds merit in this Rule calling interference by this court. . . .(18)

No one appears

.... For the petitioner

Mr. Md. Mustaque Ahmed, Advocate

....For the added Opposite Party No.4

JUDGMENT

Mahmudul Hoque, J: This Rule was issued calling upon the opposite party Nos. 1-3 to show cause as to why the impugned judgment and decree dated 18.07.2006 passed by the Joint District Judge, 1^st Court, Sunamganj, in Title Appeal No. 14 of 2005 reversing those dated 06.10.2004 passed by the Senior Assistant Judge, (in-Charge) Jamalganj, Sunamganj, in Title Suit No. 18 of 2002 should not be set aside and /or such other or further order or orders passed as to this Court may seem fit and proper.

2. Facts relevant for disposal of the Rule, in brief, are that the petitioner as plaintiff filed Title Suit No. 18 of 2002 for a decree of permanent injunction against the opposite parties as defendants claiming inter alia, that the suit land covered by Plot Nos. 504 and 503 measuring .0481 acres and .0344 acres respectively belonged to L¡m£Ns hÉhp¡l pÇfc wjwg‡UW presently known as Sachna Bazar Banik Samity. Accordingly, S.A. Khatian No. 244 prepared in the name of L¡m£Ns hÉhp¡l pÇfc wjwg‡UW . The said Samity while in possession of the schedule land leased out .0413 acres of land to the father of the plaintiff-petitioner, who after getting lease in the year 1971 filled up the low land and made the same into bhiti land. Thereafter, father of the plaintiff-petitioner constructed a tin shed shop house in the schedule land and possessing the same since 1971 upon payment of rents to the Government. After death of lessee Iskander Ali, the plaintiff got the property by inheritance and has been possessing the same with the knowledge of the defendants upon payment of arrear rents as demanded by the defendant-opposite party nos. 2 and 3. While the plaintiff-petitioner possessing the suit land peacefully without any disturbances from any quarter, all on a sudden, the defendant-opposite party nos. 1-3 came to the suit land on 16.11.2002 and asked the plaintiff-petitioner to remove the shop house else they will demolish the same and evict the plaintiff-petitioner from the suit land by applying force. On query the defendant-opposite parties could not give any satisfactory reply as to why they will evict the plaintiff-petitioner from the suit land.

3. The plaintiff-petitioner made a search about title of the defendant-opposite party in the suit land but found nothing in their favour. Further case of the plaintiff-petitioner, is that, the property in question belongs to L¡m£Ns hÉhp¡l pÇfc wjwg‡UW known as Sachna Bazar Banik Samity from whom father of the plaintiff-petitioner obtained lease. The defendant-opposite parties have had no right, title, interest and possession in the suit property. They being biased and gained over by some interested persons, illegally threatened the plaintiff-petitioner with dispossession from the suit land. In the circumstances, the plaintiff-petitioner has become compelled to file the suit against the defendant for a decree of permanent injunction.

4. The defendant-opposite parties contested the suit by filing written statement denying all the material allegations made in the plaint, contending, inter-alia, that the schedule to the plaint is indefinite and unspecified; the plaintiff-petitioner has no right, title, interest and possession in the suit land and also stated that there is no existence of Samity named L¡m£Ns hÉhp¡l pÇfc wjwg‡UW and the alleged Sachna Bazar Banik Samity has/had no right to lease out the suit land to the plaintiff's father. Further case of the defendant-opposite parties, is that, the property in question belongs to nobody and there is no owner and claimant of the suit property. For that reason the property in question is liable to be made khas under Section 19(N) of the State Acquisition and Tenancy Act, 1950 and accordingly, the Government is taking step for making the property khas to the government. The plaintiff being informed about the said process of the Government, for illegal gain and to grab the property filed the suit against the defendants with false allegation of giving threat to the plaintiff. The plaintiff has got no cause of action against the defendants to file the suit for permanent injunction and as such, the suit is liable to be dismissed.

5. The plaintiff examined three witnesses including himself as PWs 1-3 and exhibited his documents as Exhibits 1-3 and the defendant No. 1 deposed as DW1 on behalf of the defendants.

6. The trial court decreed the suit by its judgment and decree dated 06.10.2004. The defendant-opposite parties preferred Title Appeal No. 14 of 2005 before the District Judge, Sunamganj, who transferred the same to the court of Joint District Judge, 1st Court, Sunamganj for hearing and disposal. The appellate court after contested hearing allowed the appeal by its judgment and decree dated 18.07.2006 and reversed the judgment and decree of the trial court. The present-petitioner being aggrieved and dissatisfied with the judgment and decree of the appellate court has moved this Court by filing this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule and order of stay and status quo in respect of possession of the suit property.

7. None appears to press or oppose the Rule.

8. One Md. Mobarak Hossain Talukder during pendency of this Rule by filing an application added as opposite party no. 4 by order dated 11.03.20104 but he was not a party in the suit or appeal.

9. From a perusal of the application for addition of party, it appears that father of the added opposite party tried to be added as defendant in the suit before the trial court but the trial court rejected the application against which he preferred Civil Revision before the District Judge, Sunamganj that was also rejected. After a long time, his son Mobarak Ali Talukder added in this revisional application as opposite party No. 4.

10. Mr. Mustaque Ahmed, the learned Advocate appearing for the opposite party no. 4 submits that the property in question belongs to the father of the opposite party no. 4 but since the application of his father for addition of party was rejected by the trial court as well as by the revisional court he could not contest the suit by filing written statement and produce the relevant title documents in the name of his father. He further submits that the plaintiff-petitioner or his father never possessed the suit land and the lease agreement/deed filed on behalf of the plaintiff-petitioner showing Sachna Bazar Banik Samity as executants of the deed is anti dated and the said Samity has/had no right, title and interest in the property to lease out the same. It is also argued that the petitioner is not in possession and the story of making shop house on the suit property by his father is absolutely false and untrue. The plaintiff being not in possession and having no title in the suit property, suit for injunction is not at all maintainable. The plaintiff-petitioner has filed the suit to grab the property against the Government without making the real owner as defendant. He also submits that the appellate court rightly allowed the appeal and set aside the judgment and decree of the trial court as the petitioner utterly failed to prove his title and possession in the suit property.

11. Heard the learned Advocate for the opposite party no. 4, gone through the revisional application, judgment of both the courts below, evidences adduced by the parties and the exhibits submitted by the plaintiff-petitioner.

12. From a perusal of the judgment and decree passed by the trial court, it appears that the trial court while decreeing the suit observed as follows:-

""ü£L«a ®k e¡¢mn£ i¥¢j®a ®c¡L¡e Ol B®Rz h¡c£ Eš² ®c¡L¡e Ol a¡q¡l ¢fa¡ E®š¡me L¢lu¡®Re h®mez S.A. M¢au¡e e¡¢mn£ i¥¢j®a ¢i¢V J h¡s£ ¢m¢f ®cM¡ k¡uz ®Sl¡u D.W- 1 e¡¢mn£ i¥¢j®a A¯hd cMmL¡l h¡c£ e®qe a«a£u ®L¡e hÉ¡¢š² B®Re E®õM L¢l®mJ e¡j h¢m®a f¡®le e¡Cz ü£L«a ®k e¡¢mn£ i¥¢j®a 1-3 ew ¢hh¡c£ plL¡®ll h¡ 1-3 ew ¢hh¡c£f®rl ®L¡e cMm e¡C z P.W-1, P.W-2, P.W-3 Hl p¡rÉ J ®Sl¡ fkÑ¡®m¡Qe¡u e¡¢mn£ i¥¢j®a h¡c£ hÉ¢aa aªa£u ®L¡e hÉ¢š²l cMm ®cM¡ k¡u e¡z

ac¡hÙÛ¡u h¡c£l e¡¢mn£ i¥¢j®a J ®c¡L¡eOl p¡Qe¡ h¡S¡l hÉhp¡u£ p¢j¢al Ad£e m£S p§®œ Bf¡a üaÅ J HLµRœ cMm B®R j®jÑ ¢pÜ¡¿¹ ¢eu¡ 2ew ¢hQ¡kÑ ¢hou h¡c£l Ae¤L¥®m ¢eÖf¢š Ll¡ qCmz

¢hQ¡kÑ ¢hou 1/3

1-3 ew ¢hh¡c£l Sh¡h J P.W-1 Hl Sh¡eh¢¾c fkÑ¡®m¡Qe¡u e¡¢mn£ i¥¢j®L c¡h£c¡lq£e m¡-Ju¡¢ln pÇf¢š N®eÉ a¡q¡ M¡p Ll¡l SeÉ plL¡l fc®rf NËqe E®cÉ¡N£ qCu¡®Rez ¢L¿º e¡¢mn£ pÇf¢š plL¡l£ M¡p M¢au¡e i¥š² Ll¡l ®L¡e ¢mNÉ¡m fÐ¢p¢Xw Qmj¡e b¡L¡l ®L¡e p¤¢e¢cÑø hš²hÉ 1-3 ew ¢hh¡c£NZ h®m e¡C z h¡c£ 1-3 ew ¢hh¡c£ h¡ plL¡®ll ®L¡e Qmj¡e BCe£ fÐ¢œ²u¡l ¢hl¦®Ü ÙÛ¡u£ ¢e®od¡‘¡ fÐ¡bÑe¡u Aœ ®j¡LŸj¡ Beue L®le e¡Cz S.A.T. Act (Act XXVIII of 1950) Hl 92 (N) d¡l¡u plL¡l e¡¢mn£ i¥¢j ¢ho®u HM®e¡ hÉhÙÛ¡ ®eu e¡Cz kb¡kb BCe£ fÐ¢œ²u¡l à¡l¡ e¡¢mn£ pÇf¢š®L plL¡l h¡ ¢e®Scl ¢eu¿»®e ®eJu¡l f§®hÑC ®S¡l h®m h¡c£®L ab¡ qC®a ®h-cMm Ll¡l ®L¡e A¢dL¡l 1-3 ew ¢hh¡c£l Hj¤ý®aÑ e¡Cz aâ¦f®r®œ h¡c£l Aœ ®j¡LŸj¡ Q¢m®a f¡®l Hhw h¡c£ fÐ¡¢bÑa ¢e®od¡‘¡ B®cn f¡Ju¡l qLc¡l j®jÑ ¢pÜ¡¿¹ ¢eu¡ 1/3 ew ¢hQ¡kÑ ¢hou h¡c£l Ae¤L¥®m ¢eÖf¢š qCmz"

13. Apart from the observations made hereinabove, it was also observed by the trial court that:-

"h¡c£l ¢fa¡ CpL¡¾cl Bm£, p¡Qe¡ h¡S¡l h¢eL p¢j¢al avL¡m£e pÇf¡cL P.W-3 Hl ¢fa¡ Bx lqj¡e qC®a e¡¢mn£ i¥¢j 25/2/1971 Cw a¡¢l®M m£S ®ee j®jÑ c¡h£ L®lez Eš² m£S c¢mm¢V®a (fÐc-3) P.W-3 p¡r£ ®cM¡ k¡uz

P.W-3 p¡rÉ à¡l¡ e¡¢mn£ i¥¢j a¡q¡l ¢fa¡ LaÑªL h¡c£l ¢fa¡ hl¡h®l m£S ®cJu¡®L pjbÑe L®lez"

14. I have gone through the judgment and decree passed by the appellate court. It appears that the appellate court in its judgment observed as follows:-

"h¡c£f®rl c¡¢Mm£u fÐcx-1 AbÑ¡v e¡¢mn£ Hp,H 244 M¢au¡®el S¡®hc¡ eLm fkÑ¡®m¡Qe¡u ®cM¡ k¡u ®k, 504 c¡N h¡s£ f¢lj¡Z 4.81 HLl Hhw 305 c¡N ¢iV¡ f¢lj¡e 3.44 HLl i¥¢j qC®a®Rz ¢L¿º h¡c£fr Bl¢S®a E®õM L¢lu¡®Re ®k, e¡¢mn£ 244 M¢au¡®el 504 c¡N .0481 HLl Hhw 503 c¡N .0344 HLl i¥¢j z Hja¡hÙÛ¡u, h¡c£l Bl¢Sl pÇf¢šl heeÑ¡l p¢qa e¡¢mn£ Hp,H 244 M¢au¡®el i¥¢jl heeÑ¡l ¢jm e¡Cz h¡c£l c¡¢Mm£u fÐcx-3 AbÑ¡v Cw 25/2/71 a¡¢l®Ml CS¡l¡e¡j¡ c¢mm cª®ø fÐ¢auj¡e qu ®k, ®j¡x Bë¥l lqj¡e ¢fa¡ q¡S£ L¡m¡ N¡S£ p¡w L¡m£f¤l q¡w p¡w p¡Qe¡ h¡S¡l, pÇf¡cL, p¡Qe¡ h¡S¡l h¢ZL p¢j¢az fÐcx-1 AbÑ¡v e¡¢mn£ Hp,H 244 M¢au¡®el S¡ ®hc¡ eLm cª®ø fÐ¢auj¡e qu ®k, Aœ M¢au¡®el fÐS¡ L¡m£N‘ hÉhp¡l pÇfc ¢mxz Hja¡hÙÛ¡u ®cM¡ k¡C®a®R ®k, h¡c£fr e¡¢mn£ i¥¢jl Hp,H fÐS¡l ¢eLV qC®a e¡¢mn£ i¥¢j CS¡l¡ NËqe L®le e¡Cz a¡q¡ R¡s¡ h¡c£fr e¡¢mn£ i¥¢jl Hp,H M¢au¡e ïj¡aÈLi¡®h fÐL¡®nl c¡h£ Bl¢S®a E®õM L¢l®mJ a¡q¡ c§l£i¨aLl®el SeÉ ®L¡e ®j¡LŸj¡ L®le e¡C h¡ Aœ ®j¡LŸj¡u avj®jÑ ®L¡e fÐ¢aL¡l fÐ¡bÑe¡ L®le e¡Cz Afl¢c®L p¡Qe¡ h¡S¡l h¢ZL p¢j¢al pÇf¡cL e¡¢mn£ pÇf¢š 90 hRll SeÉ BCep‰ai¡®h m£S ®cJu¡l A¢dL¡l l¡®Me e¡z ¢hh¡c£/Bf£mL¡l£fr c¡h£ L¢lu¡®Re ®k, e¡¢mn£ pÇf¢š m¡Ju¡¢ln J c¡h£c¡l ¢hq£e, f¢laÉš² pÇf¢š Hhw e¡¢mn£ pÇf¢š q¡V-h¡S¡®ll pÇf¢š j®jÑ c¡h£ L¢lu¡®Rez Hja¡hÙÛ¡u ®cM¡ k¡C®a®R ®k, e¡¢mn£ pÇf¢š®a h¡c£f®rl f§hÑ¡¢dL¡l£l h¡ h¡c£l üaÅ ¢hcÉj¡e e¡C ¢hd¡u h¡c£fr j§m ®j¡LŸj¡u fÐ¡bÑ£aj®a fÐ¢aL¡l f¡Ch¡l qLc¡l e®qe"z

15. The above quoted observations of the appellate court is contrary to the actual facts and circumstances of the case and the exhibits. The appellate court found that the suit Plot Nos. 305 and 504 covered a total quantum of land 8.25 acres but the plaintiff-petitioner mentioned in the schedule to the plaint as .0826 acres of land, which is not in conformity with the document. It is also wrongly found that the plaintiff-petitioner's father obtained the lease from Sachna Bazar Banik Samity which was not the owner in S.A. record. The lease deed itself disclosed the fact that S.A. recorded Samity is presently known as Sachna Bazar Banik Samity. Apart from such controversies about the documentary evidences produced on the plaintiff's side the appellate court ought to have observed about the possession of the property in question but the appellate court totally remained silent about the possession of the property in question which is a paramount issue and consideration in a suit for injunction. From the papers and documents available in file and exhibited on behalf of the plaintiff-petitioner this court finds a prima facie case and possession of the plaintiff in the suit land, entitling him to get a decree for injunction.

16. Apart from title, a person found in exclusive possession of certain plot of land for a period of more than 30 years without any disturbances cannot be dispossessed by any authority or person without due process of law.

In the present case, the trial court found that the plaintiff-petitioner has failed to prove his clear and undisputed title in the suit property though some documents have been filed trying to establish his title but the trial court has found that the plaintiff is in exclusive possession of the suit land. Therefore, a person in possession is legally entitled to retain his possession and in the absence of any lawful claim of the defendants they are not in any way entitled to dispossess the plaintiff-petitioner from the suit land without due process of law. The written statement filed by the defendant clearly speaks that the government has not yet acquired any right, title in the property by any means or by any legal process. So, in the absence of any legal basis, the defendant-opposite parties cannot initiate any action against the plaintiff-petitioner.

17. Taking into consideration the above, this Court finds that the trial court rightly decreed the suit and the appellate court in allowing the appeal and reversing the judgment and decree passed by the trial court has committed an error of law resulting in an error in the decision occasioning failure of justice. The appellate court in its judgment neither controverted the observations made by the trial court regarding possession of the plaintiff-petitioner in the suit land nor appreciated the documents in its true perspective and as such, this Court finds merit in this Rule calling interference by this Court.

18. In the result, the Rule is made absolute, however, there will be no order as to costs. The impugned judgment and decree dated 18.07.2006 passed by the Joint District Judge, First Court, Sunamganj in Title Appeal No. 14 of 2005 is hereby set aside and the judgment and decree passed by the Assistant Judge, Jamalganj, Sunamganj in Title Suit No. 18 of 2002 is restored.

19. The orders of stay and status-quo granted at the time of issuance of the Rule stand vacated.

Communicate a copy of this judgment to the Court concerned.

Send down the lower court records at once.

Ed.

Civil Revision No. 5018 of 2006

Shamsul Huq Molla Vs. Shunil Chandra Biswas, 2016(1) LNJ (AD) 188

Case No: Civil Appeal No. 182 of 2004

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: 2016(1) LNJ (AD) 188

Case Year: 2016

Appellant: Shamsul Huq Molla

Respondent: Shunil Chandra Biswas

Subject: Easement Right,

Delivery Date: 2015-4-29

APPELLATE DIVISION
(CIVIL)

Md. Abdul Wahhab Miah, J
Muhammad Imman Ali, J

Judgment on
29.04.2015

Shamsul Huq Molla

. . . Appellant

-Versus-

Shunil Chandra Biswas

. . . Respondent

Easement Act (V of 1882)
Section 15
The High Court Division is quite erroneous. The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with the interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises. . . .(15)

For the Appellant: Mr. A.B. Siddique, Advocate, instructed by Syed Mahbubar Rahman¸ Advocate-on-Record
The Respondents No. 2: Mr. Md. Nawab Ali, Advocate-on-Record (absent).

Civil Appeal No. 182 of 2004
(From the judgment and order dated 20th of May, 2001 passed by the High Court Division in Civil Revision NO. 1563 of 1998).

JUDGMENT

Muhammad Imman Ali, J:

1. This Civil Appeal, by leave, is directed against the judgment and order dated 20.05.2001 passed by a Single Bench of the High Court Division in Civil Revision No. 1563 of 1998 making the Rule absolute.

2. The facts of the case, in brief, are that the appellant as plaintiff filed Title Suit No. 56 of 1994 for declaration of his easement right over the suit property stating, inter alia, that he acquired .17 acre of land, which has now been recorded as R.S. Dag No. 1267 by kabala dated 26.09.69 and after constructing his dwelling house he had been living therein. In order to use and access the pucca road of Battala, Gopalgonj Town, he as well as his predecessor used the pathway on foot which went through the southern side of plot No. 1251 of the defendants which stands on the eastern side of the plot of the plaintiff and then using the Government Halat (i.e. access pathway) situated on plot Nos. 1263, 1256 and 1257. The said pathway was in existence for more than 50 years. The said pathway over the southern side of plot No. 1251 is about 3 to 4 cubits wide and the plaintiff further stated that this pathway has been the only convenient access on foot to the pucca Battala Road from his plot. The defendants with ulterior intention of grabbing the Halot on the plots No. 1263, 1256 and 1257, started raising wall on ½ decimal of land on plot No. 1251 which was situated on the entrance to the aforementioned pathway. Despite repeated objections from the plaintiff, the defendants continued with the construction. Thereafter, the plaintiff applied to the local Chairman on 16.6.1993 and 24.7.1993 to settle the matter, but the Chairman failed to ensure the attendance of the defendants and as such no settlement was reached. Finally, the plaintiff requested the defendants on 20.9.1993 to stop the ongoing construction of the wall on the entrance to the pathway, which they refused, and threatened dire consequences if the plaintiff and his family members did not stop using the pathway. As a result, the access to and from the plaintiff’s plot No. 1267 was blocked from all sides and the dwelling of the plaintiff became uninhabitable. Being aggrieved by the ongoing construction of wall by the defendants, the plaintiff filed Title Suit No. 56 of 1994 seeking declaration of right of way over the disputed plot No. 1251 belonging to the defendants. During trial, the plaintiff moved an application for amendment of the plaint and stated that despite an injunction, the defendants were still continuing with the construction of the wall and had constructed a latrine and prayed to the Court for a direction upon the defendants to demolish the wall, otherwise the plaintiff’s property would be landlocked and for this reason the plaintiff has filed this suit.

3. The defendants-respondents contested the suit by filing joint written statement contending, inter alia, that plot No. 1268 is situated on the western side of the plaintiff’s plot No. 1267 and the road to Pourashava is situated on the western side of the said plot No. 1268 and if the plaintiff got possession of some land to the north of Plot No. 1268 amicably from the co-sharers, he would have access to the town. The defendants further stated that the plot No. 1251 situated to the east of the plot No. 1267 comprises an area of .06 acre of land and the defendants have been living therein by constructing dwelling hut since the time of their predecessor, and the dispute arose between the plaintiff and the defendants regarding boundary of plots No. 1267 and 1251 and then after necessary survey, the defendants raised wall between the said plots long ago and there was no vacant land in the southern side of plot No. 1251 and there was also no mention of Halot in the C.S. Khatian in respect of .01 acre of land against each of the plot Nos. 1256, 1257 and 1263 and those plots were never used as public Halot. The defendants further stated that an area of 3 cubits width is lying vacant from east to west on the southern part of plot No. 1268, which connected the Pourashava Road, situated at plot No. 1270, and the plaintiff had been using the said vacant land as passage till the filing of the suit.

4. After hearing the parties and considering the materials on record the learned Assistant Judge, Gopalgonj, decreed the suit in favour of the plaintiff.

5. Against the said judgement and decree, the defendants filed Title Appeal No. 136 of 1997 before the learned District Judge, Gopalgonj, who after hearing dismissed the appeal and upheld the judgement and decree passed by the trial Court.

6. Being aggrieved by the said judgement and decree of the appellate Court the defendants filed Civil Revision No. 1563 of 1998 before the High Court Division and obtained Rule.

7. Upon hearing the parties and considering the materials on record, by the impugned judgment and order, the High Court Division made the Rule absolute. Hence, the plaintiff as petitioner filed Civil Petition for Leave to Appeal No. 70 of 2002.

8. Leave was granted on the following submissions of the learned Counsel appearing for the petitioner:

The High Court Division failed to appreciate the provision of section 15 of the Easements Act, 1882 (Act V of 1882) in holding that the suit is barred by limitation. The attention of the Court was drawn to the fact that section 15 of the Easements Act, 1882 and section 26 of the Limitation Act, 1908 are two similar provisions, both of which deal with acquisition of right by easement and both of the said provisions provide that the ‘period of 20 years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.’ The provision is interpreted to mean that one should bring a suit within 2(two) years of interruption of his enjoyment (distinct from actual user) of easement right.
The High Court Division failed to take into consideration section 23 of the Limitation Act, which provides that a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues de die in diem. And it is a settled principle that infringement of right of way is a continuous wrong as it constitutes a continuous nuisance. Therefore, the High Court Division erred in law in holding that the suit was barred by law; and
The High Court Division erred in law and on facts by misconstruing the evidence of the plaintiff’s witness (P.W.1) (the petitioner himself) given in the trial Court and holding that the cause of action arose in 1990 and that the plaintiff should have instituted the suit within 2 years. However, the High Court Division failed to notice the fact that the trial Court in its judgement dated 26.8.1997 stated that the plaintiff, by way of amending his plaint, affirmed that the defendants were still continuing with the construction of the wall despite injunction of the Court and had built a pucca latrine. The defendants did not controvert at all, or failed to submit enough evidence to controvert such assertion of the plaintiff and as such the statement of the plaintiff was deemed to have been accepted by the defendants. This fact signifies that the construction of the wall was a continuing action and continued up to year 1994 as well. Moreover, the High Court Division failed to take notice of the fact that the plaintiff continued to request the defendants to stop construction of the wall and that every instance of refusal by the defendants constituted a fresh cause of action. Furthermore, the plaintiff asserted his right of way by way of applying to the local Chairman on 16.6.1993 and 24.7.1993 requesting his intervention to solve the dispute and such action constitutes exercise of enjoyment of the right of way by the plaintiff in the eye of law. In addition to the above, the plaintiff alleged that finally on 20.9.1993 he requested the defendants to stop construction of the wall on the entrance of his right of way, which signifies that the construction of the wall was still continuing and the plaintiff was still exercising/enjoying his right of way and that the defendants have not adduced sufficient evidence during the trial to controvert such facts. Therefore, with every instance of refusal by the defendants to allow the plaintiff to exercise his right of way amounted to a fresh cause of action under section 23 of the Limitation Act and, therefore, evidently, the suit is not barred by law.”

9. Mr. A.B. Siddique, learned Advocate appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. The learned Advocate further elaborated his submissions by referring section 15 of the Easement Ac and also section 23 of the Limitation Act. He also pointed out that no argument was made or ground taken by the defendants with regard to limitation. Referring to the evidence of D.W. 1, he pointed out that it was admitted in the cross examination of defendant No. 2, who deposed as D.W.1 that when he was constructing the wall, the plaintiff raised objection and also filed an application before the Chairman. He also pointed out that the application dated 16.06.1993 made by the plaintiff before the Chairman was exhibited as evidence and, therefore, there was no question of the suit being barred by limitation.

10. Mr. Md. Nawab Ali, learned Advocate-on-Record who had entered appearance on behalf of the respondent No. 2, was absent when the appeal was taken up for hearing.

11. We have considered the submissions of the learned Advocate appearing for the appellant, perused the impugned judgment and order of the High Court Division and other connected papers on record.

12. We find from the judgement of the trial Court that the evidence of the witnesses was elaborately discussed. The learned Judge also observed that the R.S. Porcha exhibit-‘Ka’-‘Ka’(2) showed a Halot comprising 1 decimal of land of plot Nos. 1256, 1257 and 1263. He also referred to the report of the Advocate Commissioner, which indicated that the disputed land was used by the defendants as a private path till the present day. Upon discussion of the evidence, facts and circumstances the learned trial Judge decreed the suit.

13. The appellate Court referring to paragraph 7 of the written statement of the defendants, observed that the plaintiff’s had no way of movement to the road which leads to the town via plot No. 1268. We may note at this juncture that the written statement of the defendants referred by the appellate Court only indicates that a pathway to the road going to the town would only exist if the plaintiff came to an arrangement with co-sharers of plot No. 1268.

14. We find from the judgement of the appellate Court that an issue on the point of limitation, maintainability of the suit, and defect of parties was framed by the trial Court, but the defendants did not raise those issues at the time of trial of the case, and at the time of hearing of the appeal also they did not press those issues. We note from the revisional application filed before the High Court Division that there was no ground taken with regard to limitation. Hence, it was not proper on the part of the High Court Division to reverse the concurrent findings of the trial Court and the appellate Court upon finding that the suit was barred under section 15 of the Easement Act.

Section 15 of the Easement Act provides as follows:
15. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person’s land or things affixed thereto has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, a an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

15. The High Court Division took the view that since the suit was not filed within two years from 1990, i.e. when the wall was erected by the defendants, the suit is barred.

16. In our view the finding of the High Court Division is quite erroneous. The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with the interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises.

17. In the facts of the instant case the construction of the wall was commenced in 1990 and continued as late as 1993 when, as admitted by D.W.1 in his cross examination, the plaintiff filed an application before the Chairman having objected to construction of the wall. The application was dated 16.06.1993. We are told about another application on 24.04.1994. So, in view of facts referred above, we do not find that the suit was in any way barred by limitation. On the other hand, the R.S. Porchas exhibited in the case clearly show that there is a recorded pathway across plot Nos. 1256, 1257 and 1263. In such view of the matter, the trial Court and the lower appellate Court have rightly found that the plaintiff proved a case of easement right and the suit was correctly decreed. Clearly the impugned judgement is erroneous both in facts and on law.

18. In the light of the discussion above, the appeal is allowed, however, without any order as to costs.

19. The impugned judgement passed by the High Court Division is hereby set aside.

End.

Shamsur Nessa and another Vs. Md. Shajahan Ali and others

Case No: Civil Appeal No.112 of 1997

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Nurul Islam Bhuiyan,,

Citation: V ADC (2008) 614

Case Year: 2008

Appellant: Shamsur Nessa and another

Respondent: Md. Shajahan Ali and others

Subject: Property Law,

Delivery Date: 2002-11-12

Shamsur Nessa and another Vs. Md. Shajahan Ali and others

V ADC (2008) 614

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
K. M. Hasan J
Syed J. R. Mudassir Husain J

Shamsur Nessa and another................Appellants
Vs.
Md. Shajahan Ali and others.............Respondents

Judgment
November 12, 2002.

Code of Civil Procedure, 1908
Section 115

High Court Division in the exercise of its power under Section 115 of the Code of Civil Procedure, considered the materials on record, decreed the suit holding that the lower appellate Court had wrongly affirmed the trial Court's decree of dismissal of the suit over looking the broad facts that the defendants had failed to prove the title of Rajendra Nath Shil in the suit plot and as such the Courts below wrongly disbelieved the plaintiffs' possession therein and as such the learned Single Judge of the High Court Division upon assessment of oral evidence of the witnesses found both title and possession of the plaintiffs in the suit land and further held that the plaintiffs' suit being a suit for declaration of title to the suit land upon ascertaining possession the courts below wrongly held that the suit was barred by limitation. …. (7)

On perusal of the impugned judgment of the High Court Division, we find that the learned Single Judge of the High Court Division has meticulously examined the materials on record and considered both oral and documentary evidence in their proper perspective. Having regard to the facts and circumstances of the case, we are fully in agreement with the findings and decisions of the High Court Division and we hold that the High Court Division committed no illegality in reversing the judgment of the lower appellate Court and the High Court Division reversed the findings of the courts below with cogent ground and on legal basis and we do not like to take a different view of the findings of the learned Single Judge of the High Court Division. As a result, we find no substance in the appeal. Accordingly, the appeal is dismissed without any order as to costs. …. (8)

Lawyers Involved:
Nurul Islam Bhuiyan, Advocate-on-Record-For the Appellants.
Md. Nawab Ali, Advocate-on-Record-For Respondent No.1.
Not Represented-Respondent Nos. 2 and 4.

Civil Appeal No.112 of 1997
(From the judgment and order dated 28th June, 1994 passed by the High Court Division in Civil Revision No.184 of 1987(Dhaka), Civil Revision No.459 of 1988 (Rangpur)

Judgment

Syed J. R. Mudassir Husain CJ.- This appeal by the defendant Nos.1 and 2 arises out of the leave granted on 21-08-1997 in civil petition for leave to Appeal No.567 of 1994 against the judgment and order dated 28th June, 1994 passed a Single Bench of the High Court Division in Civil Revision No. 184 of 1987 (Dhaka)/Civil Revision No.459 of 1988 (Rangpur) making the Rule absolute upon setting aside the judgment and decree dated 25-11-1986 passed by the learned Additional District Judge, Rajshahi in Title Appeal No.80 of 1982 dismissing the appeal and affirming the judgment and decree dated 14-04-1981 passed by the learned Munsif, Sadar, Rajshahi in Other Class Suit No.360 of 1973 dismissing the suit on contest.

2. Plaintiff-respondent Nos. 1 and 2 instituted Other Class Suit No.360 of 1973 in the Court of Munsif, Sadar, Rajshahi for declaration of their title to the suit property stating, inter alia, that one Tarini surrendered his korfa pattan in respect of the suit land of C. S. khatian No. 21 to his landlord Paramananda Mondol, who while in possession died leaving behind two sons, Gonesh Chandra and Dasabir Chandra; leaving Khagendra and Daman as two sons Dasabir Chandra also died. Thereafter, Gonesh Chandra, Khangendra and Daman sold half of the suit plot, comprising an area of 1.83 acres to plaintiffs by a registered kabala dated 25-04-1969. On the same day one Erfan Ali also purchased by another kabala the rest half of the suit plot from the said vendors of the plaintiffs. By amicable arrangement the plaintiffs got possession in the western half of the said plot and said Erfan Ali got the eastern half. In the preliminary S.A. record the suit land was recorded in the name of the heirs of Paramananda Mondal and then it was wrongly recorded in the name of one Rajendra Nath Shil. The plaintiffs sought for correction of the record, but the defendant-appellants raised objection disclosing that defendant No.3 had purchased the suit plot from said Rajendra Nath Shil by a registered sale deed dated 07-07-1969 and that said Erfan Ali by executing a nadabi deed dated 21-06-1971 relinquished his claim over the suit plot and that on 13-10-1972 defendant No.3 also sold .98 acres of land from the suit plot to defendant Nos. 1 and 2.

3. Defendant Nos. 1 and 2 by filing a joint written statement denied right, title, interest and possession of the plaintiffs in the suit land. Their case, in short, is that Paramananda Mondal by a registered kabala dated 30-04-1926 sold the suit plot to Rajendra Nath Shil and left the country for good. Accordingly, the name of Rajendra Nath Shil was correctly recorded in S. A. khatian and he also paid rent to the Government. There was a Certificate Case No.2602/57-58 in respect of the suit khatian and said Rajendra Nath Shil paid the certificate dues and he by a registered kabala dated 07-07-1969 sold the said land to defendant No.3, who by a Kabala dated 13-10-1972 sold .98 acres of land to defendant Nos.1 and 2. Defendant Nos. 1 -3 have been possessing the suit plot.

4. The trial Court dismissed the suit holding, inter alia, that it was barred by limitation being filed beyond 4 years from the date of knowledge of the wrong entry in the S.A. khtian and that the plaintiffs could not prove their right, title, interest and possession in the suit land and that the contesting defendants also could not prove the title of their vendor Rajendra Shil in the said land. The lower appellate Court dismissed Title Appeal No. 80 of 1982, preferred by the plaintiff-respondents and affirmed the decree of the trial Court. Whereupon the plaintiff-respondents in revision obtained a rule in Civil Revision No.184 of 1987 (Dhaka)/ Civil Revision No.459 of 1996 (Rangpur). The learned Single Judge of the High Court Division by the impugned judgment and order dated 28-06-1994 made the Rule absolute and after setting aside the judgment and decree of the lower appellate Court decreed the suit holding, inter alia, that the lower appellate Court had wrongly affirmed the trials Court's decree of dismissal of the suit overlooking the broad facts that the defendants had failed to prove the title of Rajendra Shil in the suit plot and that the Courts below wrongly disbelieved plaintiffs' possession therein. The learned Judge upon reassessment of the oral evidence of witnesses held both title and possession of the plaintiffs in the suit land and further held that the plaintiffs' suit being suit for declaration of title to the suit land upon asserting their possession, courts below wrongly held that the suit was barred by limitation.

5. The defendants being aggrieved by the impugned judgment of the High Court Division filed civil petition for leave to appeal and obtained leave.

6. Mr. Nurul Islam Bhuiyan, the learned Advocate-on-Record, appearing for the appellant, placed before us the judgments of the Courts below as well as the impugned judgment of the High Court Division and other materials on record and thereafter contended that the High Court Division exceeded its revisional jurisdiction in interfering with the concurrent finding of facts regarding the plaintiffs' title to, and possession in, the suit land upon reassessment of evidence without reversing the material findings and without giving any finding as to how the lower appellate Court committed an error of law within the meaning of Section 115(1) of the Code of Civil Procedure. Learned Advocate-on-Record further argued that the Courts below upon consideration of averments made in the plaint and the cause of action for the suit and the evidence lead by the plaintiffs in support of the plaint case rightly held that the suit was barred by limitation and the learned Single Judge of the High Court Division without considering the pleadings and evidence on record wrongly reversed such findings in holding that the suit is not barred by limitation.

7. Mr. Md. Nawab Ali, the learned Advocate-on-Record appearing for the respondent No.1, did not file any concise statement. However, in support of the impugned judgment of the High Court Division, he contended that the High Court Division in the exercise of its power under Section 115 of the Code of Civil Procedure, considered the materials on record, decreed the suit holding that the lower appellate Court had wrongly affirmed the trial Court's decree of dismissal of the suit over looking the broad facts that the defendants had failed to prove the title of Rajendra Nath Shil in the suit plot and as such the Courts below wrongly disbelieved the plaintiffs' possession therein and as such the learned Single Judge of the High Court Division upon assessment of oral evidence of the witnesses found both title and possession of the plaintiffs in the suit land and further held that the plaintiffs' suit being a suit for declaration of title to the suit land upon ascertaining possession the courts below wrongly held that the suit was barred by limitation.

8. We have heard the learned lawyers of both sides and considered their submissions. On perusal of the impugned judgment of the High Court Division, we find that the learned Single Judge of the High Court Division has meticulously examined the materials on record and considered both oral and documentary evidence in their proper perspective. Having regard to the facts and circumstances of the case, we are fully in agreement with the findings and decisions of the High Court Division and we hold that the High Court Division committed no illegality in reversing the judgment of the lower appellate Court and the High Court Division reversed the findings of the courts below with cogent ground and on legal basis and we do not like to take a different view of the findings of the learned Single Judge of the High Court Division. As a result, we find no substance in the appeal. Accordingly, the appeal is dismissed without any order as to costs.
Ed.

Shamuj All and other Vs. Kamalarma Bibi and others, 33 DLR (AD) (1981) 101

Case No: Civil Appeal No. 56 of 1980

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Dr. Rafiqur Rahman,,

Citation: 33 DLR (AD) (1981) 101

Case Year: 1981

Appellant: Shamuj All and other

Respondent: Kamalarma Bibi and others

Subject: Procedural Law,

Delivery Date: 1980-11-26

Supreme Court
Appellate Division
(Civil)

Present:
Kemaluddin Hossain CJ
Fazle Munim J
Rasul Islam J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J

Shamuj All and other
..............................Appellants
Vs.
Kamalarma Bibi and others
…………………...Respondent

Judgment
November 26, 1980.

Points decided in this case are—
Restitution under section 144 of the Civil Procedure Code is not an execution proceeding and an application for restitution is not an execution application but is an independent application.
A restitution application under section 144 is governed by the residuary article, namely article 181 of the Limitation Act.
Right to make an application under section 144 as stated in article 181 accrues on the date of the final decree of the appellate court.

Civil Procedure Code (V of 1908)
Under the Civil Procedure Code of 1882 restitution under section 583 of that Code was an execution proceeding.

Case Referred to-
Parmethwar Singh A.I.R, 1934 All. 626: Saraj Bhushan A.I.R. 1932 Cal -308; Hari Mohan Dalal, A.I.R 1947 Nag 239; Balmukund Marwari A.I.R. 1925 Pat.1. Somamndaram, A.I.R. 1917 Mad. 185; Venkatraraju, A.I.R. 1943 Mad. 248; Kurgodlgouda A.I.R. 1917 Bom 210; Hamidal, A.I.R. 1921 Bom 67; bhaunath,A.I.R. 1934 Pat. 246(2).

Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate, Instructed by Abu Backkar, Advocate-on-Record. — For the Appellants.
Rafiqur Rahman, Senior Advocate, instructed by Zinnur Ahmed, Advocate-on-Record.—For the Respondent No. 1.
Ex-parte—Respondents No. 2-12.
Civil Appeal No. 56 of 1980.
(From the Judgement and order of the High Court Division dated July 24, 1979 passed in S.M.A. No. 45 of 197).

JUDGMENT

Shahabuddin Ahmed J.

This appeal by special leave call in question a judgment and order of the High Court Divison dated July 24, 1979 in S.M.A. No. 45 of 1970 reversing the judgment and order of the Subordinate Judge who on setting aside the judgment and order of the Trial Court held that an application for restitution under section 144 of the Civil Procedure Code is governed by Article 181 of Schedule 1 of the Limitation Act, 1908 and not by Article 182 of the laid Act. The High Court Division further held that even if Art. 181 applies to an application for restitutions the three years period of limitation provided thereunder will begin from the date of the final decree in second appeal and not from the date of the decree of the first appellate Court reversing that of the court of the first instance. In other words, ''the right to apply" for restitution as referred to in Art. 181 accrues on "the date of the final decree of the appellate court."

2. Facts of the case are rather simple. The respondent-plaintiffs filed Title Suit No. 68 of 1956 against the appellant-defendant for declaration of title and recovery of possession of the suit land. The suit was decreed by the Munsif on 29th May, 1957 and the plaintiffs by putting the decree into execution got delivery of possession of the land on 26th August, 1957. But the defendants filed an appeal against the decree which was allowed and the decree was set aside by the Subordinate Judge, by an order dated 26^th June, 1958. The plaintiffs preferred a second appeal being S. A. No. 142 of 1959, in the High Court Division which was dismissed on 26th May, 1965. Thereafter, the defendant filed an application on 29th May, 1967 for restitution under section 144 of the Civil Procedure Code. The application was resisted by the plaintiffs contending that it was barred by limitation under section 181 of the Limitation Act as it was filed beyond the period of three years as prescribed in that Article. This contention was rejected by the learned Munsif who held that an application for restitution is in fact an application for execution of a decree and as such it is governed by Act. 182 of the Limitation Act which provides that for an application for execution of a decree the period of limitation of three yean begins, "where there has been an appeal, from the date of the final decree". On that principle the application for restitution was found to have been filed within the period of limitation. The learned Subordinate Judge, however, took the view that the application for restitution is not an application in execution but it is an Independent application for which no specific provision having been made elsewhere in the Limitation Act or in the Civil Procedure Code will be governed by the residuary provision of Art. 181 and that the three years period of limitation under this Article begins from the date of the decree of the first appellate court reverting the original decree and that on that date the tight to apply accrue. In this case the decree of re venal by the first appellate court having been made to June 26, 1958 the suit was not filed within three years from that date and as much the suit was barred by limitation.

3. The question involved in the appeal is a question which ha been agitated for about a century in the superior Courts of the Subcontinent and conflicting opinions have been expressed as to the nature of an application for restitution of a property in pursuance of an adverse appellate decree. For proper appreciation of this question relevant provisions of Law are quoted below:

Section 144, Civil Procedure Code.
S. 144 (1). Where and in so far as decree is varied or reversed the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, to far as may be, place the parties in the position which they would have occupied but for such decree or much part thereof at has been varied or reverted; and for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interest, damages, compensation and make profits, which are properly consequential or such variation or reversal.

Articles 181 and 182 of Schedule 1 of the Limitation Act

Description of Application	Period of imitation	Time from which period of limitation begins to run
Art. 181. Application for which no period of limitation is provided elsewhere in this schedule, or by section 48 of the Code of Civil Procedures 1908.	Three years.	When the right to apply accrues
Art. 182. For the execution of a decree or order of any Cm! Court tot provided for by section 48 of the Code of Civil Procedure. 1908.	Three years; or where a certified copy of the decree or order has been registered, six years.	1. The dale of the decree of order, or
		2. Where there has been an apple, the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal.

4. The fist and foremost question is whether an application for restitution it and application for execution of a decree as referred to in Art.182, Limitation Act and within the meaning of s.47 of the Civil Procedure Code. If is so, the problem is solved easily for Art. 182 will straight away apply thereto and the period of limitation, which is same as under Art. 181 i.e. three years, will start from the decree of the first appellate court reverting that of the trial court if no appeal it filed, but if an appeal is filed, from the date of the final decree of the appellate court. Mr. Ishtiaq Ahmed, learned counsel for the appellants has taken pains to press his point that the nature and scope of an application for restitution ere quite different from those of an application for execution and as such restitution is not part of an execution proceeding, nor is it in the nature of an execution proceeding. In support of this contention Mr. Ahmed has relied upon a number of Indian decision, particularly the following cases: Parmeshwar Singh vs. Sitaldin Dube AIR 1934 All 626 F.B Saraj Bhushan vs. Dtvendranath AIR 1932 Cal 30-: Hari Mohan Dala vs. Parmeshwar Shau. AIR 1928 Cal 646, Khwaja Allawali Vs. Kesarimal AIR 1947 Nag. 239. Bal kukund Marwari vs. Basata Kumari Dasi AIR I925; part 1.

5. In the Full Bench case of Allahabad High Court as referred to above, Solaiman CJ in his illuminating Judgment elaborated the differences between applications for execution and an application for restitution and has tried to show that applications for restitution does not come under an execution proceeding in any way and, therefore. Art, 182 Limitation Act, is not attracted to such an application. The salient points of difference between an application for execution and that for restitution at pointed out by the learned Judge may be summarised thus: Section 144 C.P.C. does not make any reference to execution and this section has been put in a different part of the Civil Procedure Code namely. Part XI. under the head "Miscellaneous", whereas an application for execution and all matters connected therewith have been put in Part II under the ‘Head Execution’ in the said Code that if an application for restitution is same as an application for execution then a separate section like s. 144 is superfluous. Definition of 'decree in s. 2 C.P.C includes the determination of an application under s. 47 and also the determination of a application under s. 144; If restitution is covered by "execution" then the definition of 'decree' would have covered both execution and restitution and these two terms would not have been specifically mentioned therein. Similarly, if restitution is covered by execution a suit for restitution is barred as provided under s. 47 and for that purpose a separate provision such as sub-section(2) of s. 144 will be superfluous. If restitution application is an application for execution it will be inconsistent with s. 38 of the Civil Procedure Code, which provides that a decree may be executed either by the Court which pasted it or by the Court to which it is sent for execution, whereas an application for restitution is to be filed only in the court of the first Instance. Restitution was provided for in s. 583 of the Civil Procedure Code of 1882. That notion specifically laid down that any benefit by way of restitution might be available by filing an application for execution of the decree of reversal passed by the appellate court but in s. 144 of the present Code, all reference to execution of a decree have been avoided. By avoiding any such reference conscious effort was made by the law makers to keep an application for restitution independent of and separate from an application for execution. The scope of an application for restitution is much wider than that of an application for execution in that the Court on an application for restitution, may allow, besides restoration of a property, refund of money, payment of compensation, damage and mesne profits, where the executing court will only execute the decree as it is. In view of this difference the learned Judge concluded thus:
''An application for restitution under s. 144 is not an application for the execution of a decree within the meaning of Art, 132, Limitation Act and that this Article does not apply to it. It is an application not specifically provided for and is governed by Art. 181, Limitation Act.”

6. In the Patna case (AIR 1925 Pat. 1) it has been held;

"Execution presupposes a decree or order capable of being carried into effect, restitution presupposes an act of the court which has done an injury to the suitors. Execution will be issued as a matter of course; but in cases of the code, restitution is not a matter of course but depends upon the discretion of the court and will be ordered only when the justice of the case calls for it. The jurisdiction as to restitution bears only a superficial resemblance to the Jurisdiction at to execution. The jurisdiction to order restitution is inherent in the court and it flows not from any power which it may have to carry into effect the decree or order of the court but from the recognition of the duty which it owes to the suitors to take care that no injury is done to them by its act."

7. In the Calcutta case Saraj Bhushan Ghosh vs. Debendra Nath Ghosh Rankin, CJ. After considering a number of decisions came to the same finding as "An application for restitution under s. 144 Civil Procedure Code it not an application for execution and such applications are governed by Art. 181 of the Limitation Act and not by Article 182.

8. But the contrary view that also been followed persistently even in a greater number of case, by different High Court particularly of Bombay and Madras. Some of those cases are Somasundaram vs. Chokdam Limgam AIR 1917 Mad, 185, Vetlkataraju vs. Suraynarayana AIR 1943 Mad. 248 Kurgodi-gouda vs. Ningangouda AIR 1917 Bom 210, Hamidali vs. Ahmedali AIR 1921 Bom. 67 Bhaunath vs. Kedar Nath AIR 1934 Pat 246 (2). This view, as has been set out earlier in this judgment, is that an application for restitution is an application in execution and at such is governed by Art, 182 of the Limitation Act.

9. The Indian Supreme Court in the case “Mahijbhai vs.Manibhai" AIR 1965 SC, 1477, considered the two conflicting view, expressed in as many at 20 cases decided by the different Indian High Courts including the cases which have been already referred to in this judgment and finally settled, though by 4 split Judgment of 4 to 1 this question agreeing with the view that an application for restitution an application for execution and rejecting the view that it is not so, and that it is Art.182 and not Art, 181 that applies in an application for restitution. The dissenting judgment of Sarker, J. followed more or lets the line of reasoning of Solaiman CJ. in the Full Bench case of Allahabad High Court at already referred to above. Sarkar J. pinpointed the difference between an application for restitution and that for an execution and laid particular stress on two points. One is that s. 144, which provides that an application for restitution is to be made to the court of first Instance, will be inconsistent with s.38 which provides that a decree may be executed either by the court which passed it or by the court to which it is sent for execution: the other point it that total avoidance of any reference to execution in 144 which repeals s. 583 of the preceding Code of 1882 wherein specific references was made to execution clearly indicates the legislative intent to keep restitution completely separate from execution. In respect of the last point the learned Judge observed:

“Indeed the old section leads to the contrary view, for while it expressly provided that restitution would be by way of execution, the present section deliberately omits reference to execution. This departure in the terminology used, would tend to the view that it was intended that the procedure under the new section would not be by way of execution."

As to the nature of an application for restitution that learned Judge held that it is an application for which no limitation has been provided 'elsewhere’ and observed;

''Apart from the fact that the application is not described as one in execution, the provision for the making of an order for the purpose of effecting restitution would lead to the conclusion that it ii this order which is to be executed for obtaining restitution. The section obviously could not contemplate two applications for execution, and, therefore, the earlier application resulting in the order mentioned in the section could not be one for execution. It seems to be impossible, looking at the terms of the section alone—and without more. We have no right lo look at anything else to say that the application contemplated in it is one in execution.”

10. Subba Rao, J. who expressed the majority view in that case having traced the history of s.144 of the Civil Procedure Code of 1908 found that in the ultimate analysis what an application for restitution seeks is the fruit of an appellate decree of reversal and that this fruit derived by executing the decree, and on that consideration, held that an application for restitution was never intended to be an original application but it is an application in connection with a case in which a wrong decree passed earlier has been corrected in appeal The conclusion arrived al by the learned Judge is quoted below:

"The section does not either expressly or by necessary implication change the nature of the proceedings. Its object is limited. It seeks to avoid conflict and to make the scope of the restitution clear and unambiguous. It does not say that an application for restitution, which, till the new Procedure Code was enacted, was an application for execution, should be treated at an original petition. Whether an application is one for execution of a decree or it an original application depends upon the nature of the application and the relief asked for. When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceeding, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree."

11. The learned Judge was fully aware of the reasons for the contrary view emanating from eminent Judges and realised that "the opposite construction for which the appellate contended is also a possible one”, but observed that "it ignores the history of the legislation and the anomalies that it introduces" and held:

"On a procedural matter pertaining to execution when a section yields to two conflicting constructions, the Court shall adopt a construction which maintains rather than disturbs the equilibrium in the field of execution".

12. Restitution under s. 144 C.P.C. means restoration of a right or of a property to a person who has been deprived thereof by wrongful order of the Court which ii reversed. In English law the concept of restitution has found clear exposition in Halsbury’s Laws of England. (2nd Edn. Vol.14. P. 38)
In the following terms:

"Where a wrongful or irregular execution has been set aside or where a Judgment or order has been reverted after execution thereon has taken place, restitution will be made to the successful party. The order setting aside the execution or reversing the judgment or order should provide for this and if it does, execution may issue upon it in the ordinary course. If the order does not so provide, another order may be made, or a writ called a writ of restitution be issued, commanding the Judgment creditor to restore the property or pay over the proceeds of sale".

The English law as quoted above provides that the court while reversing an erroneous decree may itself give direction for restitution but if it does not do so, a separate order for restitution might be issued without, however, indicating, by whom. Reference to the English law, therefore, does not give as much assistance in the interpretation of s. 144.

13. In "Jai Berham vs. Kedar Nath Marwari", AIR 1922 P.C. 269, the Judicial Committee of the Privy Council considered the score of a.144 and duty of the court to effect restitution and held,

"It is the duty of the Court under s. 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general Jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved."

This decision also does not appear to be very much helpful in our attempt to find the answer of the question before us namely, whether an application under s. 144 is an application in execution of a decree.

14. Prior to the enactment of s. 144 of the Civil Procedure Code of 1908, s. 583 of the Code of Civil Procedure. 1882 contained the procedure for restitution. Restitution thereunder was to be effected by an application for execution of the decree of reversal. Section 583 is quoted below:

"When a patty entitled to any benefit, by way of restitution or otherwise, under decree passed in an appeal under this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules herein before prescribed for the execution of decrees in suits."

Section 144 has already been quoted at page 3 of this judgment Upon reading of these two sections it is char that in s. 583 provision was made for obtaining restitution by executing the decree and it is this provision which led to the interpretation that restitution is same as execution proceeding. But if an application for restitution under s.144 is same as an execution proceeding under s.47 why the old section 583 was replaced by s. 144 in which no reference to execution has been made at all. Both Sarkar, J. and Subba Rao, J who expressed the two conflicting views in the Indian case agreed that the old section contained some "conflict" or "anomaly" and observed that the new section was brought in just to remove the conflict or anomaly. But what we find is that by removing the conflict, anomaly or confusion, whatever it might be, the legislature made its intention clear in the new section that restitution it completely separate from execution and that there two provisions which have been let out in separate section and under separate Chapters should not be inter-mixed or confused. If the legislative intention was to provide restitution through an execution proceeding, then either s. 144 would have simply contained a provision to the effect that restitution will be available in the same manner as the execution of a decree under section 47, or s. 83 would have been altogether deleted without re-enacting it in the form of s 144. If restitution falls under an execution proceeding the entire section 144 is then superfluous for, restitution will be obtainable by putting into execution the decree of reversal like any other decree. Similarly, inclusion in the definition of "decree" of the provision "the determination of any question within section 144 or the provision barring a suit for restitution contained in s. 144(2) will also be unnecessary".

Conscious avoidance of any reference to execution in s.144 clearly shows that an application for restitution is an independent application, no matter its object is the recovery of the fruit of a decree passed earlier but subsequently reverted. Application for restitution is an application for which no limitation hat been specifically provided for in the law and as such it attracts the residuary provision of Article 181. We are, therefore, firmly of the view that a restitution application is not an application for execution of a decree and as such it is not governed by Art. 182 but it is governed by Art. 181 of the Limitation Act.

15. The next question is when the period of limitation provided under Articles 181, Limitation Act begins to run. In other word when 'the right to apply accrues under Article 181. The High Court Division has expressed the view that "the right to apply" accrues on the date of the final decree when appeal is preferred from the appellate decree of reversal. On the interpretation of this Article also there is conflict of view, one view being that the right to apply for restitution accrues on the date of the decree of the first appellate court reversing the decree of the trial court, and the other view being that this right accrues on the date of the final decree when appeal is preferred from the decree of the first appellate court.

16. Mr. Ishtiaq Ahmed has contended that the appropriate time for the application is the date of the decree of the first appellate court whether any appeal there from is filed or not and that once the limitation begins to run it cannot he impended by the filing of an appeal and in the absence of any order of stay. In support of the contention he has cited a number of decisions particularly the decision of Sohrawarday, J. which was upheld by Rankin, CJ. and Buckland, J, disagreeing with the contrary view of Graham J, in the case, Hari Mohan Dalal vs. Parmeshwar Shau. (32 CWN 917 corresponding AIR 932 Cal 308). In that case both the Benches took as settled that Art. 181 and not Art. 182 govern a restitution application but difference arose as to when the right to apply for restitution accrues. The question considered was whether, by the plaintiffs appealing from the decree of the District Judie (first appellate court) the defendant's right to claim restitution was suspended or the doctrine of suspension is applicable in such a case. In the opinion of the learned Judge "there is no principle of law under which the period sanctioned by that Article can be extended', and it was observed that under s. 9 Limitation Act, "Once time has begun to run no subsequent disability or inability to sue stops. The learned Judge, disagreeing with the previous view of the same High Court expressed in Atul Chandra Sinha Vs. Kunja Behary Sinha 27 CLJ 451 (l970) to the effect that "an application for restitution immediately on reversal of the preliminary decree by the first appellate court would have been futile by the second appeal," held,” The fact that the plaintiffs appealed from the decree of District judge cannot in my judgment suspend take away, restrict or extinguish the right of the defendant to seek restitution” As to the argument that if no extension is allowed for the period spent during the pendency of the second appeal hardship would be caused to minors and other disabled persons who would be deprived of the benefits of secs 6 & 7 of the Limitation Act, the learned Judge observed that "in the matter of interpretation of statutes equitable consideration is out of place and held :

"The cause of action or right to apply under s. 144 accrued to the defendants on the very next day after the decree of the first court was modified by the appellate court and nothing has happened since to suspend or stay or, to be more precise, to review or give a fresh start to the exercise of rights."

17. This view of the High Court however did not find favour with the Judicial Committee of the Privy Council in the case Nagendronath De vs. Surendra De ILR 1933 Cal 1. Their Lordships of the Privy Council held;

"It is at least an intelligible rule that, go long as there is any question sub judice between any of the parties , those affected shall not be compelled to pursue the so often thorny path of execution, which, if the final result is against them, may lead to no advantage. Nor, in any such case as this, is the judgement-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to the debtors, and, if he is virtuously inclined, there is nothing to prevent him paying what he owes into court."

In a case where second appeal is filed challenging the decree of reversal of the first appellate court and restitution takes place during pendency of the second appeal, the restitution may be set at naught by the reversal in the second appeal and possession of the properly will change bands once again. When appeal is the extension of the original cause we find no reason why the "right to apply' should not be taken to accrue on the date of the final decree of the appellate court if appeal is preferred from the decree of reversal of the first appellate court.

In the result, the appeal is dismissed with costs.

Ed.

Shanta Chandra Vs. Bangladesh and others, (Muhammad Khurshid Alam Sarker, J.)

Case No: Writ Petition No. 13889 of 2016

Judge: Md. Rezaul Haque, J And Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mr. Abdul Matin Khasru, Senior Advocate with Mr. Md. Bashir Hossain Fakir, Mr. Jyotirmoy Barua and Mr. S.M. Jahangir Alam, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Shanta Chandra Chakroborty and others

Respondent: Bangladesh and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

13.02.2018

}

Shanta Chandra Chakroborty and others

. . .Petitioners

-Versus-

Bangladesh and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 102

The Government is reminding its concerned officials every so often about the policy of the Government regarding distribution of public jobs in each of the districts of Bangladesh. The State functionaries and the Government functionaries are legally bound to implement the policy decision of the Government through application of the provisions of the Circulars regarding district-quota. Until the Government takes a decision to cancel the district-quota or this Court declares the said policy to be unconstitutional at the instance of any aggrieved party, the application of the provisions relating to district-quota shall be continued. . . . (19)

Constitution of Bangladesh, 1972

Article 102

These petitioners are not competent to challenge the policy of district-quota, for, they are the beneficiaries of one branch of quota system (freedom fighters quota) and, now, if they seek annulment of other branch (district-quota) of the quota system, it shall amount to approbation and reprobation resulting in making the petitioners disqualified to invoke writ jurisdiction. . . . (19)

Constitution of Bangladesh, 1972

Article 102

No special recruitment, which aims at recruiting only from the family members of the freedom fighters, or a general recruitment, which is open to all classes of people, for appointments in the public offices can be carried out from a single district as long as the Government policy regarding allocation of public jobs in each of the districts of Bangladesh is in operation. . . . (23)

Constitution of Bangladesh, 1972

Article 102

The specific object of this recruitment is to provide jobs to the family members of the freedom fighters from each district, which may be the freedom fighters themselves or the children or the grandchildren. So, when the respondents are recruiting from the grandchildren category from a district where children category candidates are not available, the object of providing jobs to the family members of the freedom fighters from each of the districts of Bangladesh, in fact, is being achieved. The petitioners have been given the opportunity to apply for this post on special consideration as the family members of the freedom fighters outclassing the thousands of brilliant job-aspirants from the non-freedom fighters family and, therefore, as the members of freedom fighters family, the petitioners have no right to oppose the inclusion of the next-below category of the members of the freedom fighters family, namely, the grandchildren when children category are not available in a district. . . . (23)

Kazi Md. Salamatullah and others Vs. Government of Bangladesh and others, ALR 2016(1) 147 ref.

Mr. Abdul Matin Khasru, Senior Advocate with

Mr. Md. Bashir Hossain Fakir,

Mr. Jyotirmoy Barua and

Mr. S.M. Jahangir Alam, Advocates

. . . For the petitioner

Mr. Md. Abdur Rahman, Advocate

. . . For respondent no. 2

Mr. Syed Hasan Zobair, Advocate

. . . For respondent no. 6

Mr. Md. Khurshedul Alam, DAG

. . . For Respondent no. 1A.

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why the notice bearing no. 02/2016 dated 24.08.2016 published by respondent no. 5 selecting 655 candidates for the post of Senior Officer in the Agrani Bank Limited (Annexure-F), should not be declared to be illegal and without lawful authority and is of no legal effect for inclusion the grandsons/granddaughters of the freedom fighters therein and why the respondents should not be directed to appoint the petitioners, who are the sons/daughters of the freedom fighters, in place of the selected grandsons/granddaughters of the freedom fighters, to the post of Senior Officer in the Agrani Bank Limited, and/or pass any other order or direction as this Court may deem fit and proper.

2. The facts of the case of the petitioners, succinctly, are that on 01.04.2015 the Agrani Bank Limited (hereinafter referred to as ‘Agrani Bank’ or respondent no. 4) published a special job advertisement under the caption of “gyw³‡hv×v †KvUvq we‡kl wb‡qvM weÁwß” (advertisement for special recruitment under the quota of the freedom fighters) for the post of Senior Officer by specifically mentioning that only and only the sons/daughters and grandsons/ granddaughters of the freedom fighters are eligible to apply for the post (annexure B). The petitioners as the sons/daughters of the freedom fighters applied for the said post and their applications were found to be valid as per the criteria stipulated in the said special job advertisement and, accordingly, Agrani Bank issued the admit cards for examination in favour of the petitioners fixing the date and time of examination on 03.07.2015. Thereafter, the petitioners took part in the written examination on 03.07.2015 and the result of the written examination was published on 29.02.2016 where the petitioners are shown to have successfully passed the said written examination. Thereafter, on 08.05.2016 the Bankers Recruitment Committee of Bangladesh Bank (respondent no. 7) vide notice no. 27/2016 asked the petitioners and other successful contestants to face the viva voce examination and, accordingly, the petitioners faced the interview. On 24.08.2016, the General Manager (Administration) of Agrani Bank (the respondent no. 5) vide the notice no. 02/2016 published the names of 655 candidates declaring them to have been finally selected for the said post. The petitioners did not find their names in the aforesaid list of selected candidates and further found out that out of the aforesaid 655 selected candidates, many of them are the grandsons/ granddaughters of the freedom fighters.

3. After knowing this illegality, the petitioners called on the Minister for Ministry of Liberation War Affairs and requested him to interfere in their matter. On 05.09.2016, the Minister by issuing a DO letter bearing DO No. 48.00.0000.100.01. 001.2016.2606 dated 05.09.2016 wrote to the Governor of Bangladesh Bank (respondent no. 2) with a request to do the needful for mitigating the petitioners’ grievances. But till date, the names of the petitioners have not been published as the selected candidates and, under this circumstance, the petitioners filed the present writ petition challenging the impugned notice under no. 02/2016 dated 24.08.2016 in addition to seeking this Court’s direction upon the respondents to appoint them on priority basis before appointing the grandchildren of the freedom fighters. Hence, is the instant Rule.

4. By filing two separate affidavits-in-opposition, the Bangladesh Bank (respondent no. 2) and Agrani Bank (respondent no. 4) stated that while Agrani Bank was responsible for publishing the special job advertisement for the post of the Senior Officer on 01.04.2015 towards recruiting the sons/daughters of the freedom fighters and, if the sons/daughters of the freedom fighters are not available, then, grand sons/grand daughters, the rest of the task for recruitment was entrusted to the Bankers Selection Committee of the Bangladesh Bank. It is stated that the respondents fully agree with the petitioners’ claim that the ‘special advertisement’ has been made only for the sons/daughters & the grand sons/daughters of the freedom fighters. But this does not mean that if the sons/daughters or grandsons/grnddaughters of the freedom fighters from a single district top the entire merit list of 655 dominating over 63 districts’ children/grandchildren of the freedom fighters, they would be appointed from the said one district depriving the sons/daughters or grandsons/granddaughters of the freedom fighters from the remaining 63 districts of the country. It is claimed by the respondents that since, by issuing Circulars, the Government has introduced the equitable distribution of public employments in all the districts, based on the quantity of population of each district, therefore, at first, the district-wise quota has been calculated and, then, in every district the sons/daughters of the freedom fighters have been recruited as per the merit list. In some of the districts, there being non-availability of the sons/daughters as per the merit list, grandsons/granddaughters have been called. It is stated that in the 64 districts 580 sons/daughters of the freedom fighters were available on the basis of the population of each district. Hence, in 16 posts the grandsons/granddaughters have been called. In 2 districts, namely Bandarban and Rangamati, the requirements were 5 posts but there were no candidates and in 16 districts the candidates were short for 54 posts. As per the provisions of district-quota, in 52 districts, a total of 596 candidates were recruited and the rest 59 candidates have been called as per the merit list; 2 from Sherpur, 7 from Cox’s Bazer, 1 from Khagrachari, 2 from Bandarban, 3 from Rangamati, 1 from Laxmipur, 3 from Joypurhat, 2 from Dinajpur, 4 from Thakurganon, 2 from Naogaon, 1 from Natore, 2 from Chapainawabgonj, 2 from Gaibandha, 3 from Nilphamari, 4 from Bhola, 10 from Sylhet, 3 from Habigonj and 7 from Moulavibazar. In this process, from the merit list 17 sons/daughters of the freedom fighters were inducted and the rest 42 got recruitment from the next below category of grandsons/granddaughters of the freedom fighters. In total, 58 grandsons/granddaughters of the freedom fighters and 597 sons/daughters of the freedom fighters have been recruited against the total 655 posts. It is asserted that the entire recruitment process has been completed in accordance with the stipulations stated in the job advertisement and as per the Circulars/laws of the country. The Governor of Bangladesh Bank in his DO letter dated 02.01.2017 to the Minister for the Ministry of Liberation War Affairs, in reply to the latter’s DO letter dated 05.09.2016, made it abundantly clear that the selection was made as per the Government Rules/Circulars.

5. Mr. Abdul Matin Khasru, the learned Senior Advocate appearing for the petitioners, takes us through annexure-B to the writ petition, which is the job advertisement dated 01.04.2015, and submits that no statement is made in the said advertisement to appoint the grandsons/granddaughters of the freedom fighters bypassing the successful sons/daughters of the freedom fighters. In a bid to elaborate the above count of submission, he points out that it is clearly stated in the said special job advertisement that only in case of non-availability of the sons/daughters of the freedom fighters, the grandsons/granddaughters of the freedom fighters would be eligible for appointment to the said post.

6. He then places before us the Circular of the Ministry of Public Administration issued under the memo No. GgBAvi/Avi-1/Gm-13/84-149(250) dated 28.07.1985 and submits that according to this Circular there is no scope to appoint any grandson/granddaughter of the freedom fighters in any public post when sons/daughters of the freedom fighters are available. The learned Senior Advocate submits that the aforesaid Circular is the law of the land and the respondents are depriving the petitioners of their fundamental rights to be treated in accordance with law as guaranteed in Article 31 of our Constitution and, thereby, denying opportunity in the service of the Republic as guaranteed under Article 29 of the Constitution by not selecting the petitioners in the advertised public employment in the post of Senior Officer in Agrani Bank.

7. The learned Senior Advocate for the petitioners further submits that the provisions of the Government Circulars governing the district-quota are not applicable in this case, for, this is a special recruitment. Mr. Khasru then submits that since there was no mentioning of allocation of district-quota in the job advertisement dated 01.04.2015, it has been the petitioners’ legitimate expectation that the successful sons/daughters of the freedom fighters will be given priority over the grandsons/granddaughters. In an endeavour to clarify the above count of submission, he goes on to say that in view of the fact that at the time of submission of the applications, the petitioners were given an understanding by the respondents that they will be appointed as per the merit list prepared only with the successful sons/daughters of the freedom fighters and only after exhausting the candidates from this category i.e. sons/daughters of the freedom fighter, the candidates from the next category, namely, grandsons/granddaughters of the freedom fighters, would be given the opportunity and, therefore, it has been a legitimate expectation of the petitioners that the respondents shall not seek to distribute the jobs among the freedom fighters’ grandchildren in a district where sons/daughters are not available.

8. By making the above submissions, the learned Advocate for the petitioners prays for issuing mandamus upon the respondents for appointing the petitioners by declaring the impugned notice illegal and thereby making the Rule absolute.

9. Per contra, Mr. Abdur Rahman, the learned Advocate appearing for the Bangladesh Bank, places before us the following Government Circulars which regulate the district-quota and freedom fighters quota in our country; (i) Estt/RI/R-73/72-109(500) dated 05.09^.1972, (ii) bs-GgB Avi-1/Gm-13/84-149(250) ZvwiL 28-07-1985 wLªt, (iii) bs-mg (wewa-1)-Gm-8/95 (Ask-2)56 (500), 17.03.1997 Bs, (iv) bs- mg (wewa-1) Gm-09/2009-442, dated 20.12.2009, (v) bs-05.170.022.07.04.068.2010-150 ZvwiL-05B †g, 2010 wLªt, (vi) bs- 05.170.022.07.01.124.2010-26, ZvwiL 16 Rvbyqvwi, 2011 wLªt and (vii) bs-05.00.0000.170.22.062.13-99 dated 16.03.2015 and, side-by-side, the DO letter No. GA-03/2017-01 dated 02.01.2017 and submits that the Governor of Bangladesh Bank has clarified in detail as to how the Bangladesh Bank has applied the provisions of district-quota in dealing with this special recruitment for the children and grandchildren of the freedom fighters. He agitates that after submitting the above letter before this Court, there should not be any factual issue or law points to be adjudicated upon by this Court. Mr. Rahman, then, raises a question about the standing of the petitioners by submitting that despite clearly knowing the reasons for non-inclusion of their names in the list of the selected candidates, they have approached this Court simply for wasting time of this Court under the camouflage of seeking judicial review and, therefore, as he submits, this is clearly being an abuse of the process of the Court, the petitioners should be regarded as not bonafide petitioners. Mr Rahman then submits that the petitioners having not come with clean hands before this Court, the present writ petition is not maintainable.

10. Mr. Syed Hasan Zobair, the learned Advocate appearing for Agrani Bank, at the very outset of making his submissions, draws our attention to the previous orders passed by this Court in dealing with this matter and submits that previously the petitioners had non-prosecuted this Rule, because, after receiving the Governor of Bangladesh Bank’s explanations as to the petitioners’ non-inclusion in the list of the selected candidates, they could not satisfy this Court what else was left for examination by this Court. He submits that if anyone with ordinary prudence goes through the Governor’s letter, s/he would not have any option but to take a view that the petitioners’ grievance is without any basis. He submits that since no provision of any statutory law or Circular has been violated, no illegality has been committed by the respondents. Mr. Zobair next submits that since there has not been any violation of law in dealing with the petitioners’ matter and, thus, no question of violation of Article 29 and 31 of the Constitution arises.

11. Mr. Khurshedul Alam, the learned DAG, contends that it is fully known to each and every public job-aspirant of Bangladesh that the provisions of the Government Circulars relating to the freedom fighters quota and district-quota are being strictly applied in public employments. He argues that it is illogical for the petitioners to claim that in their case, the provisions of district-quota would not be applicable and the entire vacant posts may be filled up from a single district. In an endeavour to explain the contents of the affidavit-in-compliance, he submits that in the first affidavit-in-compliance it has been confirmed by the concerned Ministry that the provisions regarding the freedom fighters-quota must be followed in all types of public recruitment and in the second affidavit-in-compliance it has been sought to state by the concerned Ministry that no general candidate can be inducted in the special recruitment on the strength of the provisions of district-quota. He begs unconditional apology in this regard on behalf of the Ministry that their expressions in the second affidavit-in-compliance have been a bit cumbersome. He contends that, by the second affidavit-in-compliance, the Ministry has actually meant that since this is a special recruitment for the freedom fighters’ children/grandchildren, therefore, in case of their non-availability, the children of non-freedom fighters shall not be entitled to be recruited taking recourse to the Circular governing the district-quota system.

12. All the learned Advocates of the respondents’ side and the learned DAG, by making their respective above submissions, pray for discharging the Rule upon slapping exemplary costs for wasting valuable time of this Court.

13. After hearing the learned Advocate for the petitioners, the learned Advocates for respondent nos. 2 and 4 and the learned DAG, upon perusing the writ petition, affidavits-in-opposition as well as the affidavits-in-compliances together with their annexures and also on reading the relevant laws and Circulars, it appears to us that the lone question emerges for consideration of this Court is whether the provisions of the Government Circulars regulating the district-quota are applicable in the petitioners’ case. In other words, whether upon exhausting the merit list of the category of freedom fighters’ children from all over Bangladesh, should the next category, namely, grandchildren of the freedom fighters, be given chance, Or whether at first a district-wise list of the successful freedom fighters’ children and grandchildren will be prepared so that in case of non-availability of the children of the freedom fighters in a district, the said district’s other category of freedom fighters’ family members, namely, grandchildren of the freedom fighters could be employed in order to have representation from the said district.

14. It is an admitted fact that this job advertisement was published exclusively for recruitment of the children & grandchildren of the freedom fighters for the post of Senior Officer of Agrani Bank. Accordingly, only and only the children & grandchildren of the freedom fighters with requisite qualifications applied for the post and after taking written and viva voce examinations, a combined merit list of the successful candidates was prepared; meaning that there was not one merit list for children and another separate merit list for grandchildren. However, at the time of finally selecting the candidates, at first the children from each of the districts were given priority and, in a district where the children category candidates were unavailable, in that event, the grandchildren of the freedom fighters were included.

15. From the papers annexed with the writ petition, it transpires that these petitioners have successfully passed the written examination and, thereafter, faced the viva voce. But finally when the list of selected candidates was published, their names were not included in the said list despite they were at the top of the merit list. As per the claim of the petitioners, only in course of hearing of this Rule they came to know that they had not been selected because of application of the provisions of the district-quota.

16. It is the case of the petitioners that the present advertisement being a special recruitment solely for the children/grandchildren of the freedom fighters, there is no scope of application of the provisions of district-quota and only in case of un-availability of the children of the freedom fighters from the merit list, the grandchildren of the freedom fighters may get the opportunity. On the other hand, the case of the respondents is that immediately after the independence of this country the policy of district-quota in public employments having been introduced to ensure the allocation of Government jobs in all the districts, the family members of the freedom fighters, be it the freedom fighters themselves (first category) or freedom fighters’ children (second category) or freedom fighters’ grandchildren (third category), from each and every district should get the opportunity in this special recruitment. Thus, it transpires to us that while it is an agreed position that this recruitment is only for the freedom fighters’ children & grandchildren, the mere disagreement exists between the petitioners and the respondents with regard to the issue of application of the provisions of the Government Circulars regulating the district-quota.

17. Let us now embark on our task of taking a decision as to whether the provisions regarding district-quota are applicable in this case and, thereby, see whether the freedom fighters’ grandchildren are entitled to be recruited before exhausting the merit list of the freedom fighters’ children. The learned Advocates for the respondent nos. 2 and 4 in this respect have taken us through the Government Circular No. Estt/RI/R-73/72-109(500) dated 5^th September, 1972, which is reproduced below:

In order to achieve more equitable representation of the people of all the districts of Bangladesh in the various services and posts under the Government (including the Defense Services), autonomous and semi-autonomous organization and the nationalized enterprises. (including financial, commercial and industrial organizations), the Government of the People’s Republic of Bangladesh have decided, as an interim measure, to fill all future vacancies, through the candidates from all the districts on the basis of population of the district.

18. From a bare reading of the above Government Circular, the scheme of introducing the district-wise quota system is very much apparent. It is a policy of the State and this policy was adopted by the Government immediately after the birth of this country in order to achieve equilibrium in representing the bureaucracy of the Government. While the National Parliament is being represented from each of the districts of Bangladesh, in the aftermath of our great liberation war, the policy-makers of the State probably thought it prudent that the bureaucracy of the State (general administration, judiciary, police, defense, medical, engineering, finance, banking etc) should also be run by the people from each district after being qualified through competitive examinations. From a minute perusal of the numerous Government Circulars regarding district-quota referred to us by the learned Advocates for the respondents, it transpires that the above State policy is in operation in its full vigor as of today. A few of the Government Circulars issued from time to time by the Ministry of Public Administration regulating this thorny issue of district-quota are quoted below:

In the Circular No. MER-1/S-13/84-149(250) dated 28.07.1985, it was notified that;

“pLm fc phÑfÐbj SepwMÉ¡l ¢i¢ša ®Sm¡ Ju¡l£ (O) Ef-Ae¤µRc p¡fr h¾Ve L¢la qCh”z

“HC ®rœ ®jd¡ ¢i¢šL ®L¡V¡ qCh 45% Hhw ®Sm¡ ¢i¢šL ®L¡V¡ qCh 55% HC ®Sm¡ ¢i¢šL ®L¡V¡l jdÉ qCa j¤¢š²k¡Ü¡cl 30%, j¢qm¡cl 10% Hhw Ef-S¡a£ucl SeÉ 5% fc pjeÄu L¢la qCh”z

19. In the Circular bs-mg (wewa-1)-Gm-8/95 (Ask-2)56 (500) dated 17.03.1997, it was again reiterated that;

wewfbœ ai‡bi †KvUv

1g I 2q †kªYxi c`mg~‡ni Rb¨ (kZKiv nvi)

3| †Rjv †KvUv (RbmsL¨vi wfwË‡Z †Rjv Iqvix e›Ubt

(L) gwnjv †KvUv

(M) Dc-RvZxq †KvU

(N) Avbmvi I MÖvg cÖwZi¶v m`m¨‡`i †KvUv

45%

30%

10%

05%

10%

30%

15%

05%

10%

30%

†gvU

100%

In the Circular No. 05.170.022.07.04. 068.2010-150 dated 05.05.2010, it was clarified that;

1| miKvwi/Avav-miKvwi/¯^vqË¡kvwmZ/Avav-¯^vqË¡kvwmZ/wewfbœ K‡cv©‡ikb I `ß‡i 1g I 2q †kªYxi c‡` mivmwi wb‡qv‡Mi †¶‡Î wewfbœ †Rjvi we‡kl †KvUvi (gyw³‡hv×v 30%, gwnjv 10% I DcRvZxq 5%) k~b¨ m`mg~n cÖ_‡g RbmsL¨vwfwËK †Rjv †KvUv Abyhvqx Dchy³ cÖv_©x‡`i Øviv c~iY Kwi‡Z nB‡e| †Rjv ‡KvUvi mKj c` mswkó †Rjvi cÖv_©x‡`i Øviv c~iY Kiv m¤¢e bv nB‡j k~b¨ c`mg~n mswkó †KvUvi RvZxq †gavZvwjKv nB‡Z c~iY Kwi‡Z nB‡e|

20. From a perusal of the above Government Circulars, it is clear that the Government is reminding its concerned officials every so often about the policy of the Government regarding distribution of public jobs in each of the districts of Bangladesh. The State functionaries and the Government functionaries are legally bound to implement the policy decision of the Government through application of the provisions of the Circulars regarding district-quota. Until the Government takes a decision to cancel the district-quota or this Court declares the said policy to be unconstitutional at the instance of any aggrieved party, the application of the provisions relating to district-quota shall be continued. In this Rule, the vires of the Government Circular dated 5^th September, 1972 by which the Government introduced the district-quota having not been challenged, we are now not in a position to examine its constitutionality. Huge debates are going on currently on this controversial district-quota issue and this Court someday might be approached by any aggrieved person seeking adjudication of the issue as to whether the so-called equitable principle (the policy of achieving more equitable representation of the residents from all the districts in various services and posts) should dominate recruitment in public service or it should be based on merit. However, these petitioners are not competent to challenge the policy of district-quota, for, they are the beneficiaries of one branch of quota system (freedom fighters quota) and, now, if they seek annulment of other branch (district-quota) of the quota system, it shall amount to approbation and reprobation resulting in making the petitioners disqualified to invoke writ jurisdiction.

21. It follows that the provisions regarding district-quota are applicable in the petitioners’ case inasmuch as it is the policy of the Government to recruit from all the districts of Bangladesh in any public employment, be it recruitment for the special group of candidates or for general candidates. In this case, thus, the respondents have first calculated the number of posts for each district on the basis of its population and, then, priority was given to the children of the freedom fighters of the said district and when no children is found in a district, only then the grandchildren of the freedom fighters have been selected in compliance with the Government Circular No. 05.170.022.07.01.124.2010-26, dated 16.01.2011, which states that;

ÔÔ(K) gyw³‡hv×v Ges Dchy³ gyw³‡hv×v cªv_©x cvIqv bv †M‡j gyw³‡hv×/knx` gyw³‡hv×v‡`i cyÎ-Kb¨v Ges cyÎ-Kb¨v cvIqv bv †M‡j cyÎ-Kb¨vi cyÎ-Kb¨vÕÕ|

22. For an effective adjudication of this Rule, this Court in the midst of hearing of the Rule, directed the Ministry of Public Administration to furnish their statements as to whether the Circulars regarding district-quota are applicable in this special recruitment. Their statements are reproduced verbatim hereinafter:

“The Government has promulgated provisions 30% quota for the freedom fighters in the service of government/semi government, autonomous/semi autonomous institutions and corporations vide circular No. 05.170.022.07.01.124.2010-26 ZvwiLt 16/01/2011 wLªt. This circular is applicable in any forms of recruitment’’.

“Circular No. bs GgB Avi 1/Gm-13/84-149(250) dated 28.07.1985 issued by the then Ministry of Establishment is not applicable in the special recruitment directed at employing the children and grand children of the freedom fighters”.

23. The above statements furnished by the Ministry of Public Administration appeared to us to be ambiguous and when this Court was striving to figure out the meaning of the statements, we informed the learned DAG that the Ministry’s above statements are not of any use for adjudication of this Rule, he eventually sought apology on behalf of the Ministry and, in an endeavour to clarify the statements, the learned DAG confirmed two aspects of the Ministry’s above-quoted statements. One aspect is that the Circular regarding 30% freedom fighters quota shall be followed in all types of public employment and the second aspect is that in the instant recruitment no general candidate should be recruited on the strength of the provisions of the district-quota.

24. Be that as it may, our view is that no special recruitment, which aims at recruiting only from the family members of the freedom fighters, or a general recruitment, which is open to all classes of people, for appointments in the public offices can be carried out from a single district as long as the Government policy regarding allocation of public jobs in each of the districts of Bangladesh is in operation. Since in this case, the special category of candidates, namely, only the wards of the freedom fighters were supposed to be recruited for the post of Senior officer of the Agrani Bank outclassing the non-freedom fighters family members, it would be unreasonable to recruit the family members of the freedom fighters from just one single district, if all the candidates from a single district possess the top serials in the merit list achieving the qualification to grab all the advertised posts. Therefore, it was essential for the respondents to calculate the number of jobs for each of the district, at first. When the category of children was not available in any district, the category of grandchildren has been recruited with an aim that no district remains unrepresented in getting this special job. It is to be borne in mind that the specific object of this recruitment is to provide jobs to the family members of the freedom fighters from each district, which may be the freedom fighters themselves or the children or the grandchildren. So, when the respondents are recruiting from the grandchildren category from a district where children category candidates are not available, the object of providing jobs to the family members of the freedom fighters from each of the districts of Bangladesh, in fact, is being achieved. The petitioners have been given the opportunity to apply for this post on special consideration as the family members of the freedom fighters outclassing the thousands of brilliant job-aspirants from the non-freedom fighters family and, therefore, as the members of freedom fighters family, the petitioners have no right to oppose the inclusion of the next-below category of the members of the freedom fighters family, namely, the grandchildren when children category are not available in a district.

25. The submissions advanced by the learned Advocate for the petitioners, that there was no mentioning in the job Circular about application of the district-quota, do not have any leg to stand inasmuch as it was the duty of the respondents, as the State-functionaries/Government-functionaries, to follow the relevant Rules of the Circulars at the time of making final publication of the successful candidates and, at the same time, the petitioners ought to have envisaged that the concerned authorities who published the job circular are duty bound to apply the relevant Rules of the Government Circulars in processing this special recruitment.

26. The above discussions lead us to hold that though the present recruitment is a special recruitment directing at employing only the children/grandchildren of the freedom fighters, yet the respondents are under an obligation to follow the provisions of district-quota and, thus, questions of non-application of any law or violation of the fundamental right of not treating the petitioners in accordance with law under Article 31 of the Constitution do not arise at all. Accordingly, we do not find any illegality in publishing the impugned list of successful candidates for recruitment of Senior Officer of Agrani Bank Limited and, hence, the Rule is liable to be discharged.

27. Since there is a prayer by the learned Advocate for the respondents and the learned DAG for slapping exemplary costs upon the petitioners, let us consider the said issue. From the order sheets of this Rule, it surfaces that this Rule was previously non-prosecuted by the learned Advocate Mr. Moniruzzaman when he was faced with the question from this Court that after knowing about the reasons for the petitioners’ non-inclusion in the list of the finally selected candidates through the letter issued by the Governor of Bangladesh Bank to the Minister of Liberation War affairs, whether there is any use of handing down a detailed Judgment in this case. In reply thereto, the learned Advocate Mr. Moniruzzaman having read over the contents of the Governor’s letter made lengthy submissions, but ultimately having failed to convince us that there is any merit in this Rule, opted to non-prosecute the Rule to save the invaluable time of this Court. These petitioners, thereafter, upon engaging another lawyer in this case, took a plea in the Appellate Division that they have not instructed Mr. Moniruzzaman to non-prosecute the Rule and the Rule should be restored and, eventually, having been directed by the Hon’ble Appellate Division, this Court heard the parties again at length at the risk of wasting valuable working hours of this Court and, finally, arrived at the same conclusion that there is no substance in the Rule and, this time, this Court does not have any option but to pen down a full-fledged Judgment. In this case, had there been any contentious factual issue for adjudication of this Court, or if the scenario would have been that a complicated question of law is involved in this Rule but the answer that is going to be given by this Division is apparently confusing or, at least, the legal issue involved in the case requires a better interpretation by the Apex Court, in that event, the petitioners’ expectation from this Court to receive a full-fledged Judgment would have been justified.

28. It is our considered view that after hearing the case at length by either Division of the Supreme Court of Bangladesh, when the issue of a case appears to a learned Advocate to be without any substance, it becomes a bounden duty for the engaged Advocate to let his/her client know the ultimate outcome of the case and, thereby, non-prosecute the Rule, either of his/her own volition or upon taking instructions from his/her clients, towards assisting the Judiciary in reducing the backlog of cases. In this regard, the observations made by this Court in the case of Kazi Md. Salamatullah & others Vs Government of Bangladesh & others ALR 2016(1) 147, may be quoted;

“It is within the competency of an Advocate to non-prosecute a Rule or not to press an application, be it a writ petition or other application, whenever it becomes known to him that facts have been suppressed by the petitioner or if an indication is made by the Court that there is no merit in the case after being afforded the opportunity of presenting his case at length. The source of this power of an Advocate is his Vokalatnama, wherein all the litigants confer upon an Advocate the power of filing the case in tandem with the power to do the needful in connection with the said case which necessarily includes the power of taking a decision to non-prosecute a petition (not to press a petition) and non-prosecute the Rule. However, to be on safer side, the filing Advocate may seek a written instruction from his client for an untainted and bonafide case where the writ petition/application is immune from the blame of suppression of facts or adopting any other unfair means.”

29. In the present case, the patient’s disease having been clearly diagnosed to be very simple, when the doctor prescribed the appropriate medicine, taking the patient to the ICU was unnecessary; meaning that when the issue for adjudication by this Court having been framed on consent and its answer having been given by this Court in unambiguous language in the open Court after affording the petitioners to advance their arguments as lengthy as they had wished, the learned Advocate Mr. Moniruzzaman had rightly non-prosecuted the Rule as an officer of this Court and, therefore, the petitioners’ subsequent steps of approaching the Apex Court and, then, to compel this Court to hand down a detailed Judgment upon rehearing the matter was not necessary.

30. It is fairly reasonable to take a presumption by this Court that existence and operation of the provisions of district-quota is well within the knowledge of all the job seekers in public sectors and, with such knowledge, it was not a prudent step on the part of the petitioners, who are post-graduate degree-holders, to squander their time and invest money in pursuing writ petition. Even if the above presumption might be rebuttable in favour of the general people, the beneficiary groups of the quota-system, such as the freedom fighters’ family, is not competent to say that they are unaware of the said provisions. More so, when after hearing the issue at length this Court expressed its opinion in open Court, it was the duty of the petitioners to non-prosecute the Rule. By not doing so, we find that this is a fit case to slap exemplary costs upon the petitioners for wasting valuable time of this Court.

31. However, taking into consideration of the fact that the petitioners are unemployed youths of the land and, in their desperation of getting a favorable order from this Court, they might have insisted upon their learned Advocates to have their matter heard again, we restrain ourselves from slapping any costs upon them.

32. In the result, the Rule is discharged without any order as to costs. The order of statuesque granted by this Court at the time of issuance of the Rule is hereby vacated.

Writ Petition No. 13889 of 2016

Shanti Ranjan Das Vs. Khalilur Rahman Bhuiyan & others

Case No: Civil Appeal No.168 of 2000

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Mr. Abdul Wadud Bhuiyan,,

Citation: 1 ADC (2004) 387

Case Year: 2004

Appellant: Shanti Ranjan Das

Respondent: Khalilur Rahman Bhuiyan & others

Subject: Property Law,

Delivery Date: 2004-07-04

Shanti Ranjan Das Vs. Khalilur Rahman Bhuiyan & others
1 ADC (2004) 387

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J

Shanti Ranjan Das..................................Appellant
Vs.
Khalilur Rahman Bhuiyan & others ..........Respondents

Judgment
July 4, 2004.

Specific Relief Act, 1877
Section 42
Specific Performance of a contract—

It is clear that the date of execution of the bainapatra both in Bengali and English were subsequently inserted by different ink and hand and in the schedule the R.S Khatian number was overwritten without any authentication. …. (9)

When insertion of both Bengali and English dates in relevant portion of the bainapatra by different ink and hand has been made and there are overwriting with regard to the schedule of the bainpatra, a great doubt is apparent as to the genuineness of the bainapatra and no discretionary relief for specific performance of a contract can be granted on such bainapatra. …. (10)

The appellate court below noticed that the trial Court found that there was over writings in the bainapatra but did not mention in which page and in which line and which words have been overwritten without himself perusing the bainapatra and such sweeping remark of the final court of fact on a material question is not sustainable. … (10)

Lawyers Involved:
Rafique-Ul-Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Appellant.
Abdul Wadud Bhuiyan, Senior Advocate instructed by Ataur Rahman Khan, Advocate-on-Record-For Respondent Nos. 1-2.
Not represented-Respondent Nos. 3-4.

Civil Appeal No.168 of 2000
(From the judgment and order dated 16.01.2000 passed by the High Court Division in Civil Revision No. 645 of 1987).

Judgment

MM Ruhul Amin J. - This appeal by leave is directed against the judgment and order dated 16.01.2000 passed by a Single Bench of the High Court Division in Civil Revision No. 645 of 1987 making the Rule absolute.

2. Short facts are that the plaintiff filed Title Suit No. 21 of 1984 praying for a decree for specific performance of contract stating, inter alia, that one Suresh Chandra Sen (now deceased), the predecessor of respondent No. 3 who was the owner of the suit land entered into a contract with the plaintiff for sale of the suit land at a total consideration of Tk. 21,000/- and on receipt of Tk. 18,000/- the said Suresh Chandra Sen executed a bainapatra on 29.08.1980 in favour of the plaintiff with stipulation that necessary sale deed in respect of the suit land would be executed and registered within a period of three years on receipt of the balance consideration money of Tk. 3,000/-. Thereafter, Suresh Chandra Sen died on 10.02.1981 leaving behind as his heir Satish Chandra Sen who also died as a bachelor on 12.09.1981 leaving behind the defendant No. 1 as his only heir. Despite repeated demands the defendant No. 1 did not execute and register the sale deed and hence the suit.

3. Defendant No.1 contested the suit by filing written statement and contended, inter alia, that Suresh Chandra Sen never executed the alleged bainapatra which is a forged and concocted one and the answering defendant sold the suit land to the defendant Nos. 3 and 4 on 30.01.1984 and the suit is liable to be dismissed.

4. Defendant Nos. 3 and 4 also contested the suit by filing a joint written statement contending, inter alia, that Suresh Chandra Sen never Executed any bainapatra in favour of the plaintiff as alleged and the defendant No. 1 being the owner of the suit land sold, the same to then on 30.01.1984 for valuable consideration without any knowledge of the alleged bainapatra in favour of the plaintiff. All the parties led evidence, both oral and documentary in support of their respective cases and the trial court on consideration of the materials on record dismissed the plaintiff's suit. On appeal being Title Appeal No. 53 of 1986 the Court of appeal below allowed the appeal and reversed the decision of the trial court and decreed the plaintiff's suit. Being aggrieved the contesting defendant Nos.3 and 4 preferred the above mentioned Civil Revision before the High Court Division and by the impugned judgment and order the High Court Division made the Rule absolute. Being aggrieved the plaintiff preferred Civil Petition for Leave to Appeal No. 299 of 2000 before this Division.

5. Leave was granted to consider the submission that the bainapatra dated 12 Bhadra, 1387 B.S. corresponding to 29.08.1980 was proved by the scribe P.W.4, namely, Jatindra Paul and since no suggestion with respect to insertion of the word 'Bhadra' and the corresponding date was given to him, the learned Single Judge of the High Court Division committed illegality in holding that those were subsequently inserted and as such the bainapatra Exhibit-1 was forged and further submission that by insertion of words 'Bhardra' and the date 29.08.1980 made no material change in the bainapatra and moreover, the learned single Judge of the High Court Division without arriving at a specific finding that the signatures of Suresh chandra Sen in Exhibit-1 were forged wrongly held that bainapatra was not genuine, and as such the learned Single Judge of the High Court Division acted illegally in reversing the findings of the appellate court without at all discussing the oral evidence on record inasmuch as when such findings of fact of the appellate court are conclusive and final.

6. We have heard Mr. Rafique-Ul-Huq, the learned counsel for the appellant and Mr. Abdul Wadud Bhuiyan, the learned Counsel for the respondent Nos. 1 and 2 and perused the judgment of the High Court Division and other connected papers.

7. Mr. Huq mainly argued that insertion of the Bengali word 'Bhadra' and the English date 29.08.1980 made no material change in the banapatra, in view of the fact that the bainapatra Exhibit-1 was proved by the scribe, P.W.4 and as such the High Court Division acted illegality in reversing the findings of the appellate court without at all discussing the oral evidence on record.

8. Mr. Bhuiyan, on the other hand, submitted that the insertions of the word 'Bhadra' and the English date 29.08.1980 have been made subsequently by different ink and hand in the place meant for writing the date of execution of the document which is visible with open eyes and this makes the bainapatra in question doubtful and the High Court Division correctly found that the bainapatra is not a genuine document. Mr. Bhuiyan further argued that in the schedule of the bainapatra the R.S. Khatian number was overwritten by different ink and hand. He further argued that the respondent Nos. 1 and 2 are bonafide purchasers for value without knowledge of the alleged bainapatra in favour of the plaintiff.

9. We have called for the original bainapatra from the District Judge, Narsingdi and perused the same for our satisfaction. It is clear that the date of execution of the bainapatra both in Bengali and English were subsequently inserted by different ink and hand and in the schedule the R.S Khatian number was overwritten without any authentication.

10. The High Court Division held that on perusal of the bainapatra it appears that the Bengali Word 'Bhadra' and the English date 29.08.1980 have been inserted subsequently by different ink and by different hand in the place meant for writing the date of execution of the document and in the schedule R.S. Khatian No. 431 has been overwritten in place of C.S. No. 41. The High Court Division further held that in suit for specific performance of a contract the plaintiff is required to come with clean hands to get the discretionary relief. The High Court Division further held that in the present case when insertion of both Bengali and English dates in relevant portion of the bainapatra by different ink and hand has been made and there are overwriting with regard to the schedule of the bainpatra, a great doubt is apparent as to the genuineness of the bainapatra and no discretionary relief for specific performance of a contract can be granted on such bainapatra. The High Court Division further held that the trial Court considered this material evidence regarding the bainapatra and found that the bainapatra is not a genuine document. The appellate court below noticed that the trial Court found that there was over writings in the bainapatra but did not mention in which page and in which line and which words have been overwritten without himself perusing the bainapatra and such sweeping remark of the final court of fact on a material question is not sustainable. The High Court Division further held that the court of appeal being the final court of fact was required to see for himself if there is any overwriting in the bainapatra which is the basic document of the plaintiff's claim. In the face of specific finding of the trial court in this respect the appellate court below totally ignored this material evidence regarding the bainapatra Ext.1 and reversed the finding of the trial Court without himself perusing the evidence of the material document Ext. 1 and non consideration of this vital evidence by the final court of fact has resulted in a gross error of law which has occasioned a failure of justice.

11. It is undisputed that the respondent Nos. 1 and 2 are bonafide purchasers for valuable consideration without any knowledge of the alleged bainapatra in favour of the plaintiff. The High Court division also held that both the trial court and the appellate court have concurrently found the plaintiff's possession in the suit land but such possession will not be of any help to the plaintiff in getting a decree in a suit for specific performance of a contract as it is on record that the plaintiff was first brought into the suit land as caretaker and to look after the minor children of Provat Chandra Sen and he was in permissive possession in the structure raised by the Sen family in the suit land and subsequently he claimed to have obtained the bainapatra in question and the plaintiff could not prove his independent possessing on the basis of the alleged bainapatra. It is also the case of the defendants that the plaintiff had no means to purchase any land or to pay the amount of consideration money of the bainapatra.

12. We have already pointed out that we have perused the original bainapatra called for from the office of the district Judge, Narsingdi for our satisfaction, we fined that the date of execution both in Bangali and English were inserted subsequently in the bainapatra by different hand and ink and the R.S Khatian number was over written without any authentication.

13. In the circumstances, in our view the High Court Division correctly entertained doubt regarding the genuineness of the bainapatra and accordingly held the same to be not genuine and further held that on the on the basis of such bainapatra which is basic document of the plaintiff no discretionary relief for specific contract can be granted. In out view these findings of the High court division are based on correct assessment of the materials on record and proper consideration of the bainapatra Ext. 1.
Therefore, we find no cogent reason to interfere with the judgment of the High Court Division.
Accordingly, the appeal is dismissed with cost.
Ed.

Sharif alias Md. Sharif Miah Vs. The State 2017 (1) LNJ 106

Case No: Criminal Miscellaneous Case No. 49045 of 2015

Judge: Syed Md. Ziaul Karim. J.

Court: High Court Division,

Advocate: Taimur Alam Khandker, Mr. Shahidul Islam,

Citation: 2017 (1) LNJ 106

Case Year: 2016

Appellant: Sharif alias Md. Sharif Miah

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-03-14

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Syed Md. Ziaul Karim, J,

And

Sheikh Md. Zakir Hossain, J.

Judgment on

11.05.2016

}

Sharif alias Md. Sharif Miah

...Accused-Petitioner

Versus

The State

….Opposite Party

Code of Criminal Procedure (V of 1898)

Section 498

It is pertinent to point out that the case is still pending in the Court of Chief Judicial Magistrate and the petitioner is in custody for more than ten months. In such situation, we feel that there is no immediate prospect of commencement of trial. To that effect law has been well settled that when there is a unusual delay in holding trial and the accused is in custody for a long time knowing not when the trial will be concluded, the accused in view of uncertainty of trial may be granted bail. Moreover undue delay in holding trial due to prosecution procrastination will be a valid ground for granting bail of the accused. Therefore, we hold that bail of the petitioner is not to be withheld merely as a punishment and the requirements as to bail are merely to secure the attendance of the accused at the trial. Significantly the prosecution failed to bring any allegation that the accused will tamper or attempt to tamper with witnesses and to obstruct the course of Justice if he be released on bail. Therefore, the submissions advanced by the learned Counsel for the defence are the correct exposition of law and facts. To that end in view we are inclined to enlarge the petitioner on bail. Thus the Rule having merit succeeds. . . . (11 and12)

Havibat Ali Vs. State, 3 BCR-170 (SC), 35 DLR-279 (SC), 7 BLD-91(AD); Reasat Ali Vs. Golam Md., 20 DLR 339 SC), Anwar Hossain Vs. State, 5 MLR-105 and Dulal Mia Vs. State, 44 DLR-209 ref.

Mr. Taimur Alam Khondaker, Advocate with

Ms. Mar-e-um Khondaker, Advocate,

. . . For the accused-petitioner.

Mr. Shahidul Islam, D.A.G. with

Mr. Md. Ensanuddin Sheikh, A.A.G. and

Mr. Abdul Khaleque Salim, A.A.G.

JUDGMENT

Syed Md. Ziaul Karim, J: Supplementary affidavit filed to-day do form part of the substantive application.

2. By this Rule, the accused-petitioner seeks bail in a case instituted under sections 302, 34 of the Penal Code, pending in the Court of Chief Judicial Magistrate, Narayangonj.

3. Facts in brief are that on 24-06-2014 at 23:15 hrs. Samiron Begum as informant lodged the First Information Report (briefly as FIR) with the Rupgonj Police Station against fifteen accused alleging that on 24-06-2014 at 12:10 hrs. all the FIR named accused numbering fifteen happened at the dwelling hut of the informant wherein an altercation over demanding of money errupted between the son of the informant ( Anwar Hossain) and the accused. Consequently, all the accused conjointly beaten her son Anwar. Of them, accused no. 3 Md. Sharif Mia dealt a knife blow upon the right side of the chest of the deceased Anwar Hossain and other accused also dealt identical blow upon the deceased who on the way to hospital succumbed to the injuries.

4. The Police after investigation submitted charge sheet accusing the FIR named accused numbering fifteen including the petitioner. Out of fifteen accused eleven accused are on bail. Two accused are absconding and two other accused including the accused petitioner are in custody. The case is still pending before the Chief Judicial Magistrate, Narayangonj for securing arrest of the aforesaid absconding two accused.

5. Having unsuccessfully approached for bail in the Court below, the petitioner preferred this application for bail and obtained the present Rule.

6. The learned Advocate appearing for petitioner submits that the date of birth of the petitioner is 14-01-1999 and at the relevant time of occurrence he was fifteen years old. He adds that the petitioner was arrested on 12-07-2015 since then he is in custody but still the case is pending before the Chief Judicial Magistrate. There is no immediate prospect of commencement of trial. He lastly submits that the other co-accused are enjoying the privilege of bail. So the petitioner may be enlarged on bail.

7. The Rule is opposed by the learned Deputy Attorney General.

8. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

9. On going to the materials on records it transpires that the case was instituted on 24-06-2014 and the charge-sheet was submitted on 14-09-2015 accusing fifteen accused including the petitioner. Out of which eleven accused are enjoying the privilege of bail. The case is still pending in the Court of Chief Judicial Magistrate for securing arrest of the other two absconding co-accused. So we feel that there is no immediate prospect of commencement of trial. As the other co-accused are on bail, so, there is no materials to discriminate the case of the petitioner from those of the co-accused who have been enlarged on bail by the Court below. With this regard reliance are being placed in the cases of Havibat Ali vs. State 3 BCR-170 (SC), 35 DLR-279(SC), 7 BLD-91(AD). At now we do not find any sufficient ground for believing that the petitioner committed the offence as alleged by the prosecution.

10. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d) There must be clear and unequivocal proof of the corpus delicit.

e) The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

11. We have meticulously examined the FIR, and other materials on record but from there also we failed to discover any material against the petitioner for believing that he has been guilty which prohibits granting bail. It is pertinent to point out that the case is still pending in the Court of Chief Judicial Magistrate and the petitioner is in custody for more than ten months. In such situation, we feel that there is no immediate prospect of commencement of trial. To that effect law has been well settled that when there is a unusual delay in holding trial and the accused is in custody for a long time knowing not when the trial will be concluded, the accused in view of uncertainty of trial may be granted bail. Moreover undue delay in holding trial due to prosecution procrastination will be a valid ground for granting bail of the accused. With this regard reliance can be placed in the cases of Reasat Ali vs. Golam Md. 20 DLR 339 SC), Anwar Hossain vs. State 5 MLR-105 and Dulal Mia vs. State 44 DLR-209.

12. We are to bear in mind that bail in non-bailable offence is a matter of discretion of the Court which has to be exercised with due care and caution and the facts and circumstances of the case. For an offence punishable with death or imprisonment for life, an accused charged with the same not to be released on bail if there are reasonable grounds for believing that the accused committed such an offence. Court to examine the data available in the case to find out whether reasonable grounds exist to make a nexus between the accused and the crime alleged against him. Court’s belief on the point has to rest on the accusations made in the report to the Police, the nature and credentials of the evidence, which the prosecution proposes to lead in the case and all other relevant circumstances. Onus lies on the prosecution to disclose those reasonable grounds and the Court has to examine the data available in the case. No legal or moral compulsion to keep a person in Jail merely on the allegation of commission of offences punishable with death or imprisonment for life. Ultimate conviction and incarceration of a mate conviction and incarceration of a guilty person can repair the wrong caused by mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. On further exploration of the materials on record and preponderant judicial views emerging out of the authorities referred to above we are lead to the conclusion that in all respect the prosecution failed to discharge its responsibilities Therefore, we hold that bail of the petitioner is not to be withheld merely as a punishment and the requirements as to bail are merely to secure the attendance of the accused at the trial. Significantly the prosecution failed to bring any allegation that the accused will tamper or attempt to tamper with witnesses and to obstruct the course of Justice if he be released on bail. Therefore, the submissions advanced by the learned Counsel for the defence are the correct exposition of law and facts. To that end in view we are inclined to enlarge the petitioner on bail. Thus the Rule having merit succeeds.

13. In view of foregoing narrative, the Rule is made absolute. The petitioner Sharif alias Md. Sharif Miah, be released on bail on furnishing bail bond to the satisfaction of learned Chief Judicial Magistrate, Narayangonj.

14. The learned Judge of the Court below is at liberty to cancel the bail of the petitioner, if he misuses the privilege of bail in any manner whatsoever.

15. Office is directed to communicate the order at once.

Ed.

Criminal Miscellaneous Case No. 49045 of 2015

Sharif Ashraf Uzzaman Vs. Bangladesh and others 2017 (2) LNJ 166

Case No: Writ Petition No. 7395 of 2015

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. Mohammad Samiul Huq, Mr. Md. Khurshedul Alam,

Citation: 2017 (2) LNJ 166

Case Year: 2017

Appellant: Sharif Ashraf Uzzaman

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-10-17

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J.

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

10.01.2017

}

Sharif Ashraf Uzzaman

...Petitioner.

-Versus-

Bangladesh and others

...Respondents.

Constitution of Bangladesh, 1972

Article 102(2)

Government pleader (GP) at District Bar should not opine on the jurisdictional issue of the High Court Division:—The learned Government Pleader (GP) assigned for dealing with the VP cases of Gopalgonj, opined that the petitioner’s matter cannot be adjudicated in the High Court Division and the petitioner was supposed to seek remedy in the Arpita Sompotti Tribunal. He did not give his opinion on the substantial issue as to whether publication of the petitioner’s property in the ‘Ka’ list appeared to him to be a mere mistake or there was some documentary basis to enlist the property as a vested property. Without getting himself engaged in his expected business, he became concerned with the jurisdictional issue of the case pending before this Court. Being a legal practitioner of a District Court, it was not appropriate for him to record an opinion with regard to jurisdiction of the High Court Division. There is a popular proverb “The cobbler should not judge beyond his shoe” (Ne sutor ultra crepidam sutor indicaret). When the highest law office of the land, namely Office of the Attorney General, is appearing on behalf of the Government and the matter is being adjudicated upon by a Division Bench of the High Court Division, it does not fall within the business of a GP to comment on the jurisdictional issue of the High Court Division; his only duty was to scrutinize the papers and, then, opine as to whether the enlistment was done mistakenly or if there is a case for the Government to contest before the Court. . . . (6)

Constitution of Bangladesh, 1972

Article 102(2)

Under what situation/when the High Court Division is competent to directly entertain the writ petition challenging the enlistment of the vested property:—While normally an aggrieved party is required to approach the forum prescribed in a statute, there are many exceptional situations when an aggrieved party’s application under Article 102 of the Constitution is directly entertained by the High Court Division and one of the above exceptional circumstances is; where an action/decision taken by any State-functionary/statutory authority/local authority can be shown on the face of the record (ex-facie) by the aggrieved party that the same has been done/taken by the concerned authority mistakenly/wrongly /illegally. An aggrieved party is also competent to directly invoke the jurisdiction of Article 102 of the Constitution challanging an action/decision or a proceeding taken by a State-functionary who does not have legal power to take the impugned action (without jurisdiction) or he has taken it out of personal grudge (malafide) or the law has been applied maliciously, by-passing the statutory forum, if the forum is not one created under the sermon of the Constitution, such as the Administrative Tribunal. . . .(8)

Constitution of Bangladesh, 1972

Article 102

Duty of the State-functionaries to review its own mistake:—If a citizen is exposed to hassle due to a fault of any State-functionary, the latter’s duty is to rectify the wrong without compelling the citizen to approach the Court causing further harassments. . . .(9)

Constitution of Bangladesh, 1972

Article 102

In the absence of the name of any Hindu title holder in any of the record of rights the inclusions of the property in the ‘Ka’ list is a mere mistake-In order to treat a property as a vested property, from the tier of CS record to the stage of BS record, there must be at least one Hindu title-holder. In this case, from the CS, SA, RS, and BS records, it is abundantly clear that all the recorded tenants, starting from the year 1943 to date, are of Muslim ethnicity. Therefore, it is our considered view that the mistake is vividly apparent on the face of the record and anyone with ordinary prudence upon going through the aforesaid documents would unhesitatingly come to a conclusion that there is no reason for inclusion the petitioner’s property in the ‘Ka’ list as vested property. Had the Deputy Commissioner or the learned Government Pleader gone through the aforesaid papers minutely, they could have come to a decision that the publication of plot no. 2633 under the serial no. 859 in the Gazette Notification published on 26.04.2012 was a mere mistake. . . .(11)

Mr. Mohammed Samiul Huq, Advocate

…. For the petitioner

Mr. Md. Khurshedul Alam, DAG

Mrs. Nasrin Parvin, AAG

. . . For the respondents

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why the wrong inclusion of the petitioner’s plot no. 2633 of S.A. Khatian No. 254 under Mouza Borashur (J.L. No. 38), Police Station : Kashiani, District-Gopalganj, in the ‘Ka’ list of Vested Property by Notification No. 31.00.0000.040.53.005.2012-17 dated 26.02.2012 as published in the Bangladesh Gazette, extraordinary issue, dated 26.04.2012 (annexure-C), should not be declared to have been done without lawful authority and is of no legal effect and/or pass any other order or direction as this Court may deem fit and proper.

2. Briefly, the facts of the case of the petitioner are that the petitioner is a freedom fighter and the owner of 21 decimals land situated at Plot no. 2633 of SA Khatian no. 254 under Mouza Borashur, Police Station: Kashiani, District: Gopalgonj which originally belonged to Ainuddin and others who were Muslims, and RS record was also prepared in their names. Thereafter, father of the petitioner purchased the said property from the Ainuddin and others in the year 1943 and accordingly SA and BS Khatians were prepared in the petitioner’s name demonstrating his right, title and ownership over the property. The Government of Bangladesh decided to acquire the said property of the petitioner and accordingly the Deputy Commissioner of Gopalgonj (respondent no. 2) served notice of acquisition upon the petitioner vide LA Case No. 11/2012-2013 under Section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982. Upon receipt of the notice, the petitioner applied for award of compensation in the prescribed form and his application was numbered as LA Docket No. 812 dated 02.07.2015. But the concerned officer refused to award compensation in favour of the petitioner on the plea that the property in question is included in the vested property list. The petitioner after making thorough inquiry of the matter, found that the property in question has really been included in the ‘Ka’ list of the vested property list under serial no. 859 of XII-V.P.-1370/69-69 by notification dated 26.02.2012 as published in the Bangladesh Gazette, Extraordinary Issue, dated 26.04.2012. The petitioner thereafter wrote to respondent no. 2 on 10.06.2015 stating all the aforementioned facts and circumstances and asking to take necessary steps to correct the mistaken inclusion of his property in the vested property list. Respondent no. 2 upon receipt of the application of the petitioner sent the case docket to Revenue Deputy Collector who asked Land Acquisition Officer for investigation and after carrying out proper inquiry, he found that the petitioner’s suit plot no. 2633 has indeed been mistakenly included in the vested property list instead of Plot no. 2433 of SA Khatin no. 1737 and the above fact is reflected in the Note Sheet dated 02.07.2015. As per Section 10(1) of the Vested Property Release Act, one has to apply within 300 days for release of his property after publication of the vested property list and Section 10(1)(ka) of said Act fixes the last date of application for release of property on or before 31.12.2013. However, the petitioner only came to know about the impugned inclusion when he applied before the concerned authority to receive compensation award for acquisition of the property and in the meantime, statutory period of limitation to apply before the Vested Property Tribunal had expired and as such the petitioner, finding no other alternative efficacious remedy, filed the instant writ petition and hence this Rule.

3. This matter had been heard at length on the factual aspect of this case as well as on the legal points involved in this Rule. On 04.08.2016, however, when it surfaced from the annexure-F, which is the order dated 02.07.2015 passed by the Acquisition Officer of the District of Gopalganj in LA Case No. 11/2012-13 containing that the petitioner’s property has actually been mistakenly included in the ‘K’ Schedule of the vested property, this Court asked the learned Assistant Attorney General Mrs Nasrin Parvin to advise the Deputy Commissioner of the Gopalganj District to correct the mistake, as the error was evidently detected by an officer of his own office with the designation of the Land Acquisition Officer. At the same time, we also directed the petitioner to approach the concerned authority by making a written representation detailing the factual background of his grievances with a prayer to rectify the same by delisting his property from the Gazette Notification dated 26.04.2012.

4. Today, by filing a supplementary affidavit the learned Advocate for the petitioner refers to annexure-H, which is the decision given by a Senior Assistant Commissioner serving under the supervision of the Deputy Commissioner of Gopalganj vide circular dated 14.12.2016 being no. 31.30.3500.016.04.016.15, and submits that the petitioner’s written representation, which was filed as per the verbal direction of this Court, has been rejected.

5. Considering the fact that the petitioner is a freedom fighter and he is experiencing this hassles and sufferings because of the negligence of the office of the Deputy Commissioner, this Court asked the learned Assistant Attorney General Mrs Nasrin Parven to again contact the Deputy Commissioner of Gopalgonj to advise the latter for correction of its own mistake exercising his power under Section 21 of the General Clauses Act, 1897 so that the petitioner can be remedied straightway. Learned AAG, accordingly, endeavored her best, but the DC of Gopalgonj declined to exercise his power under Section 21 of the General Clauses Act, 1897.

6. Under the circumstance this Court is compelled to engage in pronouncing a full-fledged judgment. From the perusal of the above annexure-H, it appears that the concerned authority declined to dispose of the petitioner’s application in a positive manner, mainly, on the basis of the opinion obtained from the learned Government Pleader (GP) assigned for dealing with the VP cases of Gopalgonj, who opined that the petitioner’s matter cannot be adjudicated in the High Court Division and the petitioner was supposed to seek remedy in the Arpita Sompotti Tribunal. He did not give his opinion on the substantial issue as to whether publication of the petitioner’s property in the ‘Ka’ list appeared to him to be a mere mistake or there was some documentary basis to enlist the property as a vested property. Without getting himself engaged in his expected business, he became concerned with the jurisdictional issue of the case pending before this Court. Being a legal practitioner of a District Court, it was not appropriate for him to record an opinion with regard to jurisdiction of the High Court Division. There is a popular proverb “The cobbler should not judge beyond his shoe” (Ne sutor ultra crepidam sutor indicaret). When the highest law office of the land, namely Office of the Attorney General, is appearing on behalf of the Government and the matter is being adjudicated upon by a Division Bench of the High Court Division, it does not fall within the business of a GP to comment on the jurisdictional issue of the High Court Division; his only duty was to scrutinize the papers and, then, opine as to whether the enlistment was done mistakenly or if there is a case for the Government to contest before the Court.

7. It appears to us that the learned GP without examining and considering the relevant papers of this case, namely CS, RS, SA & BS records of the case-property made his opinion even though it was his mandatory duty to state as to whether petitioner’s property was enlisted in the ‘Ka’ schedule as vested property mistakenly or the same was done relying on any information. Instead of performing his duty by examining the aforesaid papers, he documented his opinion in a slipshod manner which appears to us to be unbefitting to the statutory duty of an Advocate.

8. Let it be known to the learned GP and all the concerned State-functionaries that while normally an aggrieved party is required to approach the forum prescribed in a statute, there are many exceptional situations when an aggrieved party’s application under Article 102 of the Constitution is directly entertained by the High Court Division and one of the above exceptional circumstances is; where an action/decision taken by any State-functionary/statutory authority/local authority can be shown on the face of the record (ex-facie) by the aggrieved party that the same has been done/taken by the concerned authority mistakenly/wrongly/illegally. An aggrieved party is also competent to directly invoke the jurisdiction of Article 102 of the Constitution challenging an action/decision or a proceeding taken by a State-functionary who does not have legal power to take the impugned action (without jurisdiction) or he has taken it out of personal grudge (malafide) or the law has been applied maliciously, by-passing the statutory forum, if the forum is not one created under the sermon of the Constitution, such as the Administrative Tribunal.

9. While the grievances of the petitioner, who is a freedom fighter, could have been resolved comfortably through delisting the property from the list of ‘Ka’ Schedule of the vested property simply on the basis of examination of CS, SA, RS & BS records, the opinion formed and recorded by the learned Advocate for the VP case of the Gopalganj District pushed this case to be adjudicated upon through a detailed judgment of this Court which is overwhelmingly overburdened with huge backlog of cases and, consequently, it has become impossible for the judges of this Court to hand down descriptive judgment in each and every case. Also, it was incumbent upon the DC of Gopalganj to do the needful for correction of the Gazette Notification dated 26.02.2012 in the light of the fact that the error was done by him (his office) and subsequently the same was detected by his office at the time of carrying out the acquisition task. If a citizen is exposed to hassle due to a fault of any State-functionary, the latter’s duty is to rectify the wrong without compelling the citizen to approach the Court causing further harassments.

10. In any event, when this Court through the learned AAG, had verbally directed the DC of Gopalganj to exercise his power under Section 21 of the General Clauses Act 1897, stubbornness of the DC Gopalganj not to correct his own mistake simply demonstrates his incompetency to be at the helm of the administrative affairs of any District of Bangladesh. A positive action of the Deputy Commissioner of Gopaljanj could have saved the invaluable time of this Court, on top of saving the financial loss and the mental agony the petitioner suffered.

11. Upon examining the CS record, it appears that one Md. Ainuddin Karikar was the owner and possessor of plot no. 2633 under the Zaminder Abdul Kader Sardar and, thereafter, the petitioner’s father purchased the aforesaid property in the year 1943 and the SA record has been made in the name of the petitioner’s father. Subsequently, the name of the petitioner was recorded as his heir in the BS record. Furthermore, it appears that in the Gazette Notification dated 26.04.2012, which is the ‘Ka’ Schedule of the VP list, under the Serial No. 859, the Khatian nos. 1737 and 2275 are shown to be the VP Khatians, but from examining the aforesaid 2 Khatians, it is revealed that there is no plot bearing the number 2633 under the said two Khatians. More importantly, in order to treat a property as a vested property, from the tier of CS record to the stage of BS record, there must be at least one Hindu title-holder. In this case, from the CS, SA, RS, & BS records, it is abundantly clear that all the recorded tenants, starting from the year 1943 to date, are of Muslim ethnicity. Therefore, it is our considered view that the mistake is vividly apparent on the face of the record and anyone with ordinary prudence upon going through the aforesaid documents would unhesitatingly come to a conclusion that there is no reason for inclusion the petitioner’s property in the ‘Ka’ list as vested property. Had the Deputy Commissioner or the learned Government Pleader gone through the aforesaid papers minutely, they could have come to a decision that the publication of plot no. 2633 under the serial no. 859 in the Gazette Notification published on 26.04.2012 was a mere mistake.

12. Under this circumstance, we are of the view that the present Rule deserves to be absolute with a direction upon the Secretary, Ministry of Land and the Deputy Commissioner of Gopalganj (respondent nos. 1 and 2) to exclude the petitioner’s property from the ‘Ka’ schedule land of the vested property, for, the same is wrongly published in the Gazette Notification dated 26.04.2012.

13. Accordingly, the Secretary, Ministry of Land and the Deputy Commissioner of Gopalganj (respondent nos. 1 and 2) are directed to exclude the petitioner’s property from the ‘Ka’ schedule land of the vested property list by publication of a Gazette Notification within 30(thirty) days from the date of receiving this order.

14. Resultantly, the Rule is made absolute with the above observations and directions.

15. However, there will be no order as to costs.

16. Office is directed to send a copy of this judgment to the Hon’ble Prime Minister’s Principal Secretary for his information. Office is further directed to send a copy to Mr. Abu Hena Mostofa Kamal, an Advocate of the Gopalgonj District Bar Association who is performing the duty of the Government Pleader for vested property cases, in order to let him know about the blunder he has made in dealing with this case and, then, to make an assessment by himself on his own professional competency.

Ed.

Writ Petition No. 7395 of 2015

Sharifa Begum Vs. Government of Bangladesh and others, 2016(1) LNJ 325

Case No: Writ Petition No. 15331 of 2012

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Ms. Nasrin Parvin Shefali,Mr. Md. Harun-Or-Rashid,,

Citation: 2016(1) LNJ 325

Case Year: 2016

Appellant: Sharifa Begum

Respondent: Government of Bangladesh

Subject: Vested Property,

Delivery Date: 2015-5-10

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Md. Emdadul Huq, J
And
Muhammad Khurshid Alam Sarkar, J

Judgment on
10.05.2015

Sharifa Begum

. . . Petitioner

-Versus-

Government of the People’s Republic of Bangladesh and others

. . . Respondents

Constitution of Bangladesh 1972
Article 102(1)
Writ Petition can be filed against a private person if an aggrieved person comes out with an allegation of playing foul with her/his fundamental rights by any one, this Court is the only forum to provide appropriate remedy to the said aggrieved person by issuing necessary direction or order upon any person or authority, be that private or public.                                                . . .(21)

Constitution of Bangladesh 1972
Articles 26 to 29 and 42
অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০
It is a qualified right inasmuch as the very wordings “subject to any restrictions imposed by law” speak itself that it is not an absolute right like the other fundamental rights guaranteed under Articles 26 to 29 of the Constitution. In the backdrop of providing a safeguard provision in the said অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ for challenging the enlistment of any person’s property in a forum specially created for the affected persons only, the petitioner’s right under Article 42 has not in any way been violated. Accordingly, the petitioner was not competent to invoke the forum under Article 102(1) of the constitution directly.       ...(23 and 24)

Expected professional conduct from the Advocates:
While a lawyer’s motto should be to achieve targeted result from a competent forum for his/her client, the lawyers must not seek to win a case by circumventing the due procedure laid down in a statute. This sort of tendency of a lawyer may be observed by the Court not only as a professional incompetency, but it may be taken as a malpractice. Making clients happy by any means, even by adopting an improper route, is not befitting with the cannons of the legal profession. . . . (45)

Limitation Act (IX of 1908)
Section 14
Time spent in the wrong forum would be excluded if in good faith a litigant files any suit, application, appeal, revision and review and, subsequently, if it surfaces that approaching of the said forum was done under a mistaken view, the said time period may be excluded from the computation of the time period stipulated in the first schedule of the Limitation Act, 1908 …………...(52)

Limitation Act (IX of 1908)
Sections 4, 9 to 18 and 29
Whether the time-limitations provided in the special laws can be extended the provisions contained in Sections 4, 9 to 18 and Section 22 shall be applicable for computation of time-limit for institution of any suit, making any application, preferring any appeal and filing revision or review under a special law if applicability of the said provisions has not been expressly negated or ousted in the concerned special law. It is widely known to the learned members of the Bench and Bar, even to most of the lay people, that the time which are required and consumed for obtaining certified copy or the vacation period of the Courts are usually deducted from not only the limitation period of ordinarily laws, but also from the special laws’ time-limitation. The source of this long-standing practice is none other than Section 29(2) of the Limitation Act, 1908 which speaks about applicability of the Sections 4, 12 and 14 of the Limitation Act, 1908 in reckoning the limitation period under the special laws. ………………....(57)

অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০
Limitation Act (IX of 1908)
Sections 14 and 29 (2)(a)
Since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is a special law wherein a certain time-limit has been stipulated to file any application before the tribunal and since, as per the provisions of Section 29(2)(a), provisions of Section 14 shall be applicable for not being excluded by any express provision of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ we are of the view that the petitioner is well competent to seek the protection and benefit of Section 14 of the Limitation Act, 1908 and, thereby, she may be allowed to exclude the time spent in this Court from the date of filing this writ petition. . . . (58)

Constitution of Bangladesh, 1972
Article 102
অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১
ধারা ৯, ৯ক এবং ১০
Being a forum equipped with necessary powers to remedy the grievance of the petitioner, she ought to have approached the tribunal. Upon elaborately discussing and categorically examining all the case laws of our Apex Court on this issue, latterly a Division Bench of this Court has sought to revisit the said point in the case of Concord Pragati Construction Ltd Vs BPDP 66 DLR 475 wherein it was held that availability of an alternative forum with the competency of providing the same remedy debars this Court to entertain a writ petition under Article 102(2) of the Constitution. It follows that the present writ petition is not apposite to be fitted into the purview of Article 102 of the Constitution and liable to be discharged on the maintainability ground.            ...(35 and 36)

Concord Progati Constructions Ltd. Vs. BPDB, 66 DLR 475; Priyatosh Talukdar Vs. Assistant Custodian, Vested and Non-Resident Property, Chittagong and others, 39 DLR (AD) 178; Bangladesh Vs. Syed Chand Sultana and other, 51 DLR (AD) 24; Begum Lutfunnessa Vs. The People’s Republic of Bangladesh and others, 42 DLR (AD) 86; Md. Abdus Sukkur Vs. Chairman, National Board of Revenue and others, 17 BLD (AD) 43 and Abdul Wahab Sheikh Vs. Md. Kamal Hossain and others, 20 BLT (AD) 282, ref.

Mr. Md. Haroon Ar Rashid, Advocate

. . . For the petitioner

Mrs. Nasrin Parvin, AAG

. . . For respondents.

Writ Petition No. 15331 of 2012

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:

1. By filing this writ petition, the petitioner challenges the legality and propriety of the respondents’ action in enlistment of her property as the vested property under the “Ka” schedule vide the Gazette Notification dated 06.05.2012 printed at its page no. 41589 as serial no. 957 and, then, subsequently as a “Kha” schedule-vested property vide Gazette Notification dated 30.09.2012 at page no. 181542 thereof under serial no.103 (Annexure-H series).

2. Briefly, the facts of the case, as stated in the writ petition, are that the petitioner’s deceased husband Md. Chand Mia (hereinafter referred to as ‘the vendee’) entered into an agreement with the SA recorded owners Ms. Radha Rani Basak and Ms. Nanda Rani Basak (hereinafter referred to as ‘the vendors’) for purchasing a parcel of land of 0.0508 ajutangsha under the SA Khatian no. 209, SA Plot nos. 792 & 793 (currently, City Survey Khatian no. 2030 and City Survey Plot nos. 6985 & 6986) at a price of Tk. 9,125/- upon making an advance payment of Tk. 8,551/- on 15.08.1963. Thereafter, the vendee repeatedly requested the vendors to execute registration of the said agreement but the latter avoided their performance on different excuses. The vendee then filed Case no. 6526 of 1967 under Section 6(2) of The Disturbed Persons (Rehabilitation) Ordinance, 1964 before the Board of Revenue of the erstwhile East Pakistan impleading the vendors as the defendants seeking permission for filing a suit for specific performance of contract against the vendors and the same was allowed by the said concerned authority. Upon obtaining such permission the vendee filed Title Suit no. 290 of 1969 in the Court of learned Subordinate Judge, 1^st Court, Dhaka praying for specific performance of contract impleading the vendors and the deputy custodian as the defendants. In the said suit the vendors did not contest, only the Assistant Custodian of Enemy Property contested the suit by filing a written statement and the said suit was decreed in favour of the vendee on 30.08.1971, against which the Government never preferred any appeal. Following obtaining the said decree the vendee filed Execution Case no. 20 of 1971 before the Executing Court which ordered for execution of the deed of sale on 25.10.1971 and, then, the vendee got the property in question registered on 27.10.1971 and, thereafter, he mutated his name in respect of the property in question and had been possessing the same by paying rents and all types of bills, rates and taxes, including WASA, Gas, electricity and Municipal Corporation Taxes.

3. Eventually, the said vendee (the petitioner’s husband) sold out half portion of the suit property to the petitioner by executing a registered deed of sale being no. 30373 of 1973 dated 18.12.1973. The petitioner’s husband thereafter applied to the RAJUK seeking permission for construction of a three-storied building which was approved by the RAJUK on 26.02.1968 and the petitioner and her husband jointly constructed a two-storied building thereon and since then they have been possessing the property through the tenants.

4. It is stated that during operation of the revisional survey, the name of the petitioner’s husband was duly enlisted and published under the Khatian no. 1712 wherein the SA Plot no. 793 has been converted and shown as the RS Plot nos. 1253 & 1254 with an area of 0.0080 & 0.0428 respectively, in total 0.0508. Thereafter, during operation of the City Survey the names of the petitioner and her son were duly prepared and published in the Khatian no. 2030 wherein the RS Plot nos. 1253 and 1254 have been renamed as the City Survey Plot nos. 6985 and 6986 respectively. It is claimed that the petitioner and her family members have been possessing the case property since 15.08.1963 and the same has never been enlisted as an Enemy Property until initiation of E.P. Case no. 5 of 1978 and, then, inclusion of the same under the “Ka” and “Kha” lists of the vested property through publication of the Gazette Notifications dated 06.05.2012 and 30.09.2012 under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ at serial nos. 957 and 103 respectively.

5. Being aggrieved with the said inclusion in the vested property list, the petitioner approached this Court and obtained the instant Rule.

6. Respondent nos. 1 to 5 contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that the case property, along with some other properties, were actually owned by some Hindu persons who left the then East Pakistan for India for good during the communal disturbance of 1947 and, thereafter, in 1965 the property in question was declared as enemy property under the Defence of Pakistan Rules, 1965. The Additional Deputy Commissioner (Revenue) as the Assistant Custodian of the enemy property took the management of the case property vide E.P. Case no. 5 of 1978 against which the petitioner filed Title Suit No. 215 of 1978 in the 6^th Court of Assistant Judge, Dhaka and achieved nothing. It is alleged that the papers and documents annexed to the writ petition and subsequent affidavits are forged and fabricated and, even, if for argument’s sake, the decree passed in Title Suit No. 290 of 1969 on 30.08.1971 is believed to be a genuine one, the same is to be taken as an exparte decree.

7. Mr. Md. Haroon Ar Rashid, the learned Advocate appearing for the petitioner, takes us through the supporting papers and documents of the petitioner as to her title and possession over the case property, which include deed of sale, records of right and payment of the bills, rates etc annexed to the writ petition as well as to the subsequent supplementary-affidavits to the writ petition, and submits that it is clearly evident from these appendixes and enclosures that the petitioner is the legal owner and possessor of the case property and, therefore, inclusion of the case property in the “Ka” and “Kha” lists under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is an arbitrary and colourful action of the respondents under the cover of the provisions of the said special law. In an endeavour to elaborate the preceding point of argument, he next submits that in view of the fact the predecessors-in-interest of the petitioner’s husband had been possessing and enjoying the case property uninterruptedly from time immemorial and, then, the petitioner’s husband had been possessing and enjoying it since 15.08.1963, when Ms. Radha Rani Basak and Nanda Rani Basak had entered into an agreement for selling the case land to the petitioner’s husband and, lastly, the petitioner & her children have been possessing the suit land since 18.12.1973 when the petitioner’s husband transferred the suit land in the petitioner’s name and, furthermore, in the light of the fact that previously the petitioner’s husband had and, currently, the petitioner and her son have mutated their names with regard to the case property and have been paying the rents and different bills etc without ever been evicted by the respondents, therefore, inclusion of the case property in the “Ka” and “Kha” lists under the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ was completely illegal.

8. He, then, places annexure I, which is the judgment and decree dated 30.08.1971 passed by the Subordinate Judge, Ist Court, Dhaka in Title Suit no. 290 of 1969, and submits that the suit was decreed on contest in the light of the fact that the Assistant Custodian had filed a written statement in the said suit and, thus, there is no scope to treat the said decree as an exparte decree under the provisions of Article 3 of the Bangladesh (Legal Proceedings) Order, 1972 (hereinafter referred to as the PO 12). He, as an addition to this count of his submissions, canvasses that the respondents have never preferred any appeal against the said judgment and decree passed on 30.08.1971 in Title Suit no. 290 of 1969 nor have they taken any action against the execution of the decree under the provisions of article 8 of the Bangladesh Transfer of Immovable Property (Temporary Provisions) Order, 1972 (hereinafter referred to as PO 142) and, thus, he argues that by not questioning the said judgment and decree dated 30.08.1971 or its subsequent execution and, also, by not enlisting the case property in the list of the enemy property during operation of the Defence of Pakistan Ordinance, 1965, the respondents are estopped from claiming the case property to be a vested property. The learned Advocate for the petitioner further submits that the inclusion of the case property in the list of the enemy property in the year 1978 and, on the basis of that, initiation of Enemy Property Case no. 5 of 1978 was completely illegal inasmuch as the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 (Ordinance No. 1 of 1969) was repealed on 23.03.1974.

9. With regard to the maintainability of the present writ petition Mr. Haroon Ar Rashid, the learned Advocate for the petitioner, forcefully submits that since the petitioner is agitating the allegation of violation of her fundamental right, namely right to property under Article 42 of the Constitution, the present writ petition is maintainable inasmuch as for invoking writ jurisdiction under Article 102(1) of the Constitution the petitioner does not require to show the availability of the alternative efficacious forum. The learned Advocate for the petitioner in support of his submissions refers to a series of decisions, which include the case of (i) Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43, (ii) Priyatosh Talukdar Vs Assistant Custodian, Vested and Non-Resident Property, Chittagong and others 39 DLR (AD) 178, (iii) Government of Bangladesh and another Vs Syed Chand Sultana and other 51 DLR (AD) 24, (iv) Begum Lutfunnessa Vs The People’s Republic of Bangladesh and others 42 DLR (AD) 86, (v) Sunil Kumar Ghosh and others Vs Bangladesh 7 BLD 131, (vi) Sreemati Parul Kusum Roy Vs Bangladesh and others 1988 BLD 6. (vii) People’s Republic of Bangladesh Vs Chairman, Court of Settlement and others 49 DLR 560, (viii) Akbar Hossain Khan (Md) and another Vs Md Awlad Hossain Khan and another 49 DLR 561, (ix) Nurunnahar Begum and others Vs Government of the People’s Republic of Bangladesh and another 49 DLR 433 and (x) Lutfur Rahman (Md) Vs Ministry of Law and Parliamentary Affairs and another 49 DLR 432.

10. By making the above submissions the learned Advocate for the petitioner prays for making the Rule absolute.

11. Ms. Nasrin Parveen, the learned Assistant Attorney General appearing on behalf of the respondents, at the very outset takes us through the annexures appended to the writ petition as well as to the subsequent affidavits filed by the petitioner and submits that there are plausible reasons for arousing suspicions as to the genuineness of those papers.

12. She questions about the authenticity of the papers and documents filed by the petitioner before this Court by pinpointing to the discrepancies and ambiguities apparent on their face and, for example, she seeks to draw our attention to some documents of Pakistan regime such as plaint of the Title Suit no. 290 of 1969, judgment and decree passed by the learned Sub-Judge which contains the word “Dhaka”, though at the relevant point of time its spelling was “Dacca”. To substantiate her suspicion about the genuineness of the petitioner’s claim she then points out to another fact that the petitioner has produced only the papers which are apparently favourable to her and abstained from submitting some vital documents such as the plaint plus the written statement of the Title Suit no. 215 of 1978 wherefrom somewhat detailed information could have been gathered with regard to the title and possession of the case property.

13. She, then, refers to the judgment and decree passed in Title Suit no. 290 of 1969 and submits that the judgment and decree is an exparte decree inasmuch as the Deputy Commissioner was made the defendant in the said suit as the Custodian of the property, but he could not contest the suit as at the relevant point of time the country was under the state of war. She submits that the written statement filed by the Assistant Custodian should not be taken to have been filed by the party to the said suit and, accordingly, she argues that the said judgment and decree is not a decree in the eye of law inasmuch as article 3 of the P.O. 12 provides that an exparte decree passed from Ist March, 1971 to 1^st March, 1972, both exclusive, shall be deemed to be null and void. She, thus, argues that since the said decree is a nullity, the respondents or any other party have no legal obligation to challenge the same either in any original forum or appellate forum.

14. She further submits that non-enlistment of the case land in the enemy property list before creation of Bangladesh does not debar the Government of Bangladesh to enlist the property in the enemy property list inasmuch as since introduction of the provisions regulating the enemy property on 06.09.1965 through the Defence of Pakistan Ordinance, 1965, the same remains in continuous operation by dint of the saving clauses of the subsequent statutes regulating the matters relating to the enemy property and, subsequently, vested property.

15. Then, she submits that the petitioner ought to have approached the competent forum namely, the tribunal constituted under provisions of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ given that adjudication of her case involves taking oral evidence to either establish or controvert the genuineness of the papers submitted by her. To further explain her argument on the maintainability issue of this writ petition, she submits that had these papers and documents been produced before the said forum, there would have been a proper and effective adjudication of the present case and vehemently submits that the writ petition is liable to be discharged outright only on the ground of maintainability as the Legislature has created a special forum for adjudication upon the disputes with regard to the vested property and the petitioner instead of availing the said forum invoked Article 102 of the Constitution knowing fully well that the writ petition is not maintainable.

16. She contends that the petitioner has not approached this Court bonafide given the fact that she sought to avail the forum under Article 102 of the Constitution when a special forum was available to her. She terms the petitioner’s move before this Court to be an attempt to frustrate the provisions of a special law and to obtain a favourable order from this Court by resorting to the means of suppression of the real facts. She argues that the forum under Article 102 of the Constitution is not available to a petitioner who does not come with clean hands. In support of her submissions, she refers to and relies on the case of Concord Progati Constructions Ltd. Vs BPDB 66 DLR 475.

17. By making the above submissions, the learned Assistant Attorney General prays for discharging the Rule.

18. In adjudication of this case, we have given a patient hearing to the submissions advanced by the learned Advocate for the petitioner and the learned Assistant Attorney General, minutely perused the writ petition, supplementary-affidavits, affidavit-in-opposition, together with their annexures, and also attentively read through the relevant provisions of law and the case decisions placed before us and, then, those have been considered by us very carefully.

19. Since the question of maintainability has been raised by the respondents, at first the said issue requires to be taken up for examination by us before embarking upon the factual aspect as well as the other legal issues involved in this case.

20. In order to properly deal with the maintainability issue, it would be profitable for us to look at the provisions of Article 102(1) of the Constitution in the backdrop of the plea taken by the petitioner that since her fundamental right has been violated, she is competent to directly invoke the jurisdiction of Article 102(1) of the Constitution without going to the other forum. The said Article runs as follows:-

102. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.

21. Our plain and simple understanding on the provisions of this Article is that if an aggrieved person comes out with an allegation of playing foul with her/his fundamental rights by any one, this Court is the only forum to provide appropriate remedy to the said aggrieved person by issuing necessary direction or order upon any person or authority, be that private or public.

22. It follows that we have to first carry out an examination of the facts of this case to see whether there has been any infringement of any fundamental rights guaranteed under part III of the Constitution. It is contended by the petitioner that by inclusion of her property in the list of the vested property, Article 42 of the Constitution has been violated. Let us, thus, look at the provisions of Article 42 of the Constitution, which runs as follows:

Article 42 (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law.
(2) A law made under clause (1) of this article shall provide for the acquisition, nationalization or requisition with compensation and shall fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision of the law in respect of such compensation is not adequate.

23. From a plain reading of the provisions of the aforesaid Article it appears that it is a qualified right inasmuch as the very wordings “subject to any restrictions imposed by law” speak itself that it is not an absolute right like the other fundamental rights guaranteed under Articles 26 to 29 of the Constitution.

24. Since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ has been enacted by the Legislature for declaring the ownership of certain type of property to have been vested in the Government in continuation of the operation of the provisions of the Defence of Pakistan Ordinance, 1965, then, Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969, then, the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 and Vested and Non-resident Property (Administration) Act, 1974, therefore, every citizen will qualify to enjoy the right to acquire or hold the property only within the boundaries of this statute. On a careful reading of the entire অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ it transpires to us that the citizen shall be competent to own, possess, hold and enjoy any property only subject to the limitations and restrictions imposed by the provisions of the said law. Moreover, in the backdrop of providing a safeguard provision in the said অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ for challenging the enlistment of any person’s property in a forum specially created for the affected persons only, the petitioner’s right under Article 42 has not in any way been violated. Accordingly, it is our view that the petitioner was not competent to invoke the forum under Article 102(1) of the Constitution directly.

25. The learned Advocate for the petitioner, in an effort to bring this case within the purview of Article 42 of the Constitution, has referred to 3 (three) Appellate Division cases and 6 (six) High Court Division cases.

26. We would take up all these cases one by one so as to see whether the facts of those cases are similar to the facts of the present case warranting application of the ratio laid down in those cases. In other words, what factors urged and persuaded the Apex Court to consider the facts of the said cases to be the actions taken by the state functionaries in violation of Article 42 of the Constitution and, thereby, allowed the petitioners of those cases to invoke Article 102(1) of the Constitution.

27. In the case of the Priyatosh Talukdar Vs Assistant Custodian, Vested and Non-Resident Property, Chittagong and others 39 DLR (AD) 178, the plaintiff-appellant filed Mortgage Suit no. 43 of 1964 in the First Court of Subordinate Judge, Chittagong, against the heirs of one Umesh Chandra Chowdhury and got an ex-parte decree on 29 August 1966. The decree-holder, appellant, then started Execution Case no. 4 of 1967 but respondent no. 1, Assistant Custodian of enemy Property, (subsequently designated as vested property), filed an objection under section 47 of the CPC taking the ground that the suit land being an enemy property is exempt from attachment or sale in execution of any Court decree as specifically provided in article 8 of the East Pakistan Enemy Property (Lands and Buildings) Administration and Disposal Order, 1966. This objection was accepted and the Execution Case was dismissed by the trial Court by its order dated 28 January 1970. But the decree-holder challenged this order by an appeal (F.M.A. no. 28 of 1970) whereupon a Division Bench of the High Court Division at Chittagong, by judgment and order dated 4 March 1984, maintained this order with the modification that the execution proceeding shall remain stayed as long as the suit property remains a vested property. Leave was granted by the Apex Court to the decree-holder to examine the validity of the said order. It is clearly apparent from the fact of this case that neither the petitioner of the said case had invoked Article 102(1) of the Constitution, nor is there any observation by the Apex Court with regard to invocation of Article 102(1) and Article 42 of the Constitution. As evidently the said decision has no applicability or relevance in the present case, it is beyond our comprehension why this decision has been cited in this case by the learned Advocate for the petitioner.

28. In the case of Bangladesh Vs Syed Chand Sultana and other 51DLR (AD) 24, a property owned by Advocate Mozffar Hossain of this Court, who died in 1989, was listed as an abandoned property. In the said case there was no allegation against the petitioner that he had left for India before 1970 or went to Pakistan during the war time in 1971 or thereafter. It was an admitted position in the said case that the petitioner of the said case hails from Jessore and upon being allotted a plot by the RAJUK, he had been living therein and, thus, the High Court Division found the inclusion of the property in the list of the abandoned property to be exfacie illegal. Moreover, there was not a single disputed question of fact, which required taking evidence and cross examination. The scenario of the present case is completely different from that of the cited case, for, firstly, it is an absurd suggestion to draw a conclusion on the ownership, title and possession of the property of this case in the backdrop of the claim of the petitioner’s husband that in the year 1963 he had made a bainapatra with a Hindu family who never appeared before any Court or Government authority and, secondly, there are allegations of fabrication of papers which require taking deposition and cross examination of the concerned witnesses. Thus, the ratio of the cited case is not applicable in the present case.

29. In the case of Begum Lutfunnessa Vs the People’s Republic of Bangladesh and others 42 DLR (AD) 86 when the writ petition was filed on 19.08.1986 challenging the inclusion of the petitioner’s property in the abandoned property list, no Court of Settlement was constituted. Furthermore, from paragraph 10 of the cited case, it appears that the Apex Court found the ex-facie illegality in the actions taken by the Government. Also, the distinctive feature of the said case from the present case is that while there was no need of examining any witness in the cited case, the fact of the present case commands that for a proper resolution of the allegations of fabrication of the papers, on the basis of which the petitioners seek to claim their title, the relevant witness should be called up for giving deposition and cross-examination.

30. In all the three cases, the actions of the Government were so arbitrary that on the face of the annexed papers the Courts were in a position to understand and spot the illegality and, accordingly, unhesitatingly termed the impugned action to be ex-facie illegal and malafide, and given the aforesaid background of those cases the Apex Court, when found that the authority did not have any jurisdiction to take the impugned actions, the Courts rightly termed the actions to be without jurisdiction. Upon skimming through the 6 (six) decisions of the High Court Division, we find that in those cases the Court found the actions of the Government to be ex-facie illegal or malafide or the impugned action having been taken by an incompetent authority, the Court termed it as ‘coram non-judice’ or the authority sought to apply the provisions of law maliciously and the Courts considered the action as ‘malice-in-law’. Thus, it appears that the facts and scenario of the above-cited 6 (six) High Court cases were completely different from the facts of the present case.

31. From the discussions made hereinbefore it appears that the present writ petition’s facts and circumstances do not attract the provisions of Article 42 of the Constitution.

32. Now, let us see whether the petitioner is competent to invoke Article 102(2)(a)(ii) of the Constitution for a certification (Certiorari) by this Court to the effect that enlistment of the petitioner’s property as a vested property has not been done in accordance with law or whether this is a fit case seeking a direction upon the respondents under Article 102(2)(a)(i) of the Constitution (mandamus) to release the petitioner’s property from the list of the vested property. We would, thus, look at the said provisions of Article 102(2) (a)(i) & (ii), which are reproduced below:

Article 102(2): The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

on the application of any person aggrieved, make an order-
1. directing a person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or
2. declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect; (underlined by us)
3. It appears from a careful reading of the above provisions that this Court would be in a position to exercise its power and jurisdiction under article 102(2) of the Constitution if no equally efficacious forum for getting any remedy is available.

33. Apparently, in the case at hand, the petitioner challenges the respondents’ actions in enlistment of the petitioner’s property as a vested property by publications of two gazette notifications under the mandate of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১. The said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ has also made provisions for seeking redress for an aggrieved person by way of challenging the enlistment of any property as vested property. From the reading of the entire provisions of the said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ it appears to us that the Legislature has created a special tribunal namely, অর্পিত সম্পত্তি প্রত্যর্পণ ট্রাইবুনাল for adjudication of the claims on vested properties empowering it not only to declare a property to be not a vested property, but also to restore the possession of the property to the title holder. Moreover, given that there is a mandatory time limit for adjudication of the matters by the said tribunal in the said অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ as well as there is a provision for preferring appeal against the judgment and decree of the tribunal, we find that the forum is a better forum than the ordinary fora.

34. With all the above features of the অর্পিত সম্পত্তি প্রত্যর্পণ ট্রাইবুনাল, we have no other option but to hold that the said tribunal being a forum equipped with necessary powers to remedy the grievance of the petitioner, she ought to have approached the tribunal. Upon elaborately discussing and categorically examining all the case laws of our Apex Court on this issue, latterly a Division Bench of this Court has sought to revisit the said point in the case of Concord Pragati Construction Ltd Vs BPDP 66 DLR 475 wherein it was held that availability of an alternative forum with the competency of providing the same remedy debars this Court to entertain a writ petition under Article 102(2) of the Constitution.

35. It follows that the present writ petition is not apposite to be fitted into the purview of Article 102 of the Constitution and liable to be discharged on the maintainability ground.

36. It is, however, the plea of the petitioner that when the Gazette notifications were published, at that relevant point of time, there was no tribunal in operation and, thus, the petitioner had to resort to Article 102(2) of the Constitution. It is, therefore, necessary to look at the date of publications of the impugned notifications, the date of setting up the tribunals under the mandate of অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ and the date of filing the present writ petition. From the scrutiny of the annexed papers it transpires that annexure-H is the ‘Ka’ schedule of the vested properties published under the Gazette Notification dated 06.05.2012 and has been impugned herein, for, at its page 41589 under serial no. 957, a homestead of .0508 acres under the SA khatian no. 209 & Plot nos. 792 & 793 with the name of Ms. Radha Rani Basak has been included in the said ‘Ka’ list, which the petitioner claims to be the owner of it, and annexure-H1 is the ‘Kha’ schedule of certain vested properties which has been published in the Gazette notification on 30.09.2012 where the petitioner’s homestead of 0.0428 acres under the SA khatian no. 2030 & plot no. 6986 is listed therein and the petitioner has challenged the said enlistment.

37. From annexure-L, which is a Gazette notification dated 06.03.2012, it transpires that the Government has set up one tribunal for each of the district of the country and the District Judges of each of the districts have been appointed as the Judges of the tribunals. From annexure-M, which is the Gazette notification dated 18.07.2012, it transpires that the Additional District Judges, in addition to the District Judges of all the districts, have been appointed as the judges of the tribunals under অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ upon cancelling the annexure-L. From annexure-N, which is the Gazette Notification dated 10.07.2013, it appears that the first Joint District Judges of all the districts have been appointed as the judges of the first tribunal for each of the districts and the other Joint District Judges of the every districts of the country have been appointed as the Judges of the additional tribunals of a district by cancelling annexure-M.

38. Evidently annexure-H, which is the ‘Ka’ schedule, was published on 06.05.2012 and under the original provisions of Section 10 of the অর্পিত সম্পত্তি প্রত্যর্পণ আইন, ২০০১ the petitioner could have filed an application before the tribunal within 90 days i.e. within 06.08.2012. However, before the expiry of the said ninety days, by Act no. xxii of 2012 on 21.06.2012 the time was extended for further 120 days from 09.06.2012 and, thereafter, by several amendments the said time limit was extended from time to time before the expiry of the stipulated period of filing an application in the tribunal and, finally, it was extended till 31.12.2013. Thus, it is evident that the petitioner had ample opportunity to approach the tribunal before filing this writ petition on 19.11.2012. If, for the sake of argument, it is conceded that the initial time limit of ninety days was not noticed by the petitioner, nevertheless, the subsequent extension of time at first 120 days, then, of 300 days and thereafter upto 31.12.2013 could have been availed of by the petitioner.

39. At the fag end of the hearing of this case, the learned Advocate for the petitioner very humbly submitted that the petitioner was not aware of publication of the first Gazette Notification on 06.05.2012 and only when she came to know about enlistment of her property in the “Kha” listed vested property from the Gazette Notification dated 30.09.2012, she approached him (the learned Advocate before us, Mr. Haroon Ar Rashid), but he was under an impression that since the time limit of 90 (ninety) days have already expired, there was no scope for the petitioner to approach the tribunal. Mr. Rashid, in the facts and circums-tances, made an humble and earnest prayer to this Court not to reject this writ petition on the ground of maintainability given that at the time of filing this writ petition he sincerely was of the opinion that there was no forum available for the petitioner.

40. In order to deal with the above submissions, we are required to investigate into the veracity of the claim as to whether the learned Advocate committed a bonafide mistake in computation of the limitation period. Secondly whether the learned Advocate was professionally competent in dealing with the petitioner’s case in the backdrop of the fact that even after filing the present writ petition, he had more than 1 (one) year time in his hand to seek redress in the tribunal. Finally, if the above two factors are held in favour of the learned Advocate, in that event, whether the petitioner is entitled to get protection under the provisions of the Limitations Act, 1908, in particular the provisions of Section 14 read with Section 29 of the Limitation Act, 1908.

41. Apparently, for the petitioner there was no reason to be in a hurry for approaching this Court as no step was taken by the Government to evict her. In view of the admitted fact that the time-limit for filing an application in the tribunal was extended from time to time, initially from 90 (ninety) days to further 120 days, then for further 300 (three hundred) days and lastly the time to file application in the tribunal was extended to 31.12.2013, the learned Advocate ought to have consulted with other experienced lawyers on the matter, for, lawyers may be considered to be the cognoscenti of the legal field only when they render proper advice to their clients by finding out the relevant provisions of law upon putting their best efforts, not by holding an attitude of all-knowing persons or claiming themselves that since they are Advocates, they are acquainted with the provisions of all the laws and readily capable of advising clients without looking at the texts of the laws.

42. In this case, Mr. Haroon Ar Rashid’s plea of unawareness about extension of time appears to us to be a bonafide mistake albeit he should have searched for the detailed provisions relating to the time-limitation for filing applications before the tribunal, which he did at the time of the hearing of this case in this Court. The factors that lead us to be lenient in treating his conduct to be bonafide are that, firstly, this Rule was fixed for hearing at his instance and subsequently it was upgraded on his prayer. Had he intended to drag on this matter, he would not have been eager to get this Rule disposed of and, secondly, the way he conceded that he was under an impression that the time had already expired, his demeanour before this Court does not command us to hold a contrary view.

43. The answer to the second point, that the petitioner’s Advocate could have filed an application in the tribunal upon withdrawing this writ petition any time before the expiry of 31.12.2013 in order to avail the adjudication of this case from the tribunal, is same to the first point given that it is Mr. Haroon Ar Rashid who being an Advocate of the High Court miserably failed to advise his client properly. The learned Advocate had ample opportunity to be familiar with the relevant provisions of limitations either by perusing the said provisions or by sharing the matter with the Senior Advocates.

44. While a lawyer’s motto should be to achieve targeted result from a competent forum for his/her client, the lawyers must not seek to win a case by circumventing the due procedure laid down in a statute. This sort of tendency of a lawyer may be observed by the Court not only as a professional incompetency, but it may be taken as a malpractice. Making clients happy by any means, even by adopting an improper route, is not befitting with the cannons of the legal profession. In the case of AKM Azaduzzaman Vs Public Service Commission 4 ALR 2014 (2) 278, a Division Bench of this Court, when found that the petitioner was wrongly advised to invoke the writ petition, the Court indicated at discharging the Rule with an expectation that the learned Advocate would non-prosecute the Rule and, thereby, help the Court to save its valuable time. When the learned Advocate opted to have a full judgment, the Court did not have any option but to deliver a detailed judgment. In the said circumstances the Court lambasted the learned Advocate for insisting upon the Court to deliver the full judgment instead of non-prosecuting or withdrawing the writ petition.

45. In the case of Bandar Nagari Bahumkhi Samabay Samity Ltd Vs Bangladesh 5 ALR 2015(1) 194 this Court imposed a fine of Taka 5,000/- to be paid from the pocket of the learned Advocate for the petitioner when the Court found the conduct of the learned Advocate to be unbefitting with the norms of the legal profession.

46. In this case since it is very much apparent that due to the learned Advocate’s professional immaturity and incompetency the petitioner’s case is before us, it would not be improper to impose a fine upon the learned Advocate of the petitioner. However, given the fact that it was a bonafide mistake on part of the learned Advocate Mr. Haroor Ar Rashid, we are taking a lenient view for this time and, thus, not slapping any cost upon him. Nonetheless, we feel it pertinent to record a note of caution that the repetition of this kind of mistake in future by Mr Harron Ar Rashid shall be taken seriously by this Court towards slapping an exemplary fine.

47. We may now take up the third point for our examination. In other words, the issues on the Limitation Act, 1908 to be examined with an aim to see whether the petitioner would be eligible to approach the tribunal after discharging the instant Rule on the maintainability ground.

48. For the purpose of effective adjudication on this point, we went through the entire provisions of the Limitation Act, 1908. From a minute perusal of the provisions of Section 3 together with Sections 14 & 29, we find that the petitioner might have an opportunity to seek redress from the tribunal. For a better understanding on the relevant part of the said provisions namely Section 3 of the Limitation Act, it may be reproduced hereunder:

3. Dismissal of suits, etc. instituted after period of limitation: Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed thereof by the first schedule shall be dismissed, although limitation has not been set up as a defence. (underlined by us)

49. It appears from the aforesaid provisions that if a suit, application, appeal, revision, review is filed before any Court or tribunal beyond the time-limitation prescribed in the first schedule of the Limitation Act, 1908 the same shall be dismissed subject to the provisions contained in Sections 4 to 25 of the said Limitation Act, 1908.

50. From the minute reading of the provisions of Sections 4-25, Section 14 appears relevant for the purpose of adjudication of this case, which is reproduced below:

14. Exclusion of time of proceeding bonafide in Court without jurisdiction: In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
Explanation I.- In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II.- For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation III.- For the purpose of this section misjoinder of parties or of causes of section shall be deemed to be a cause of a like nature with defect of jurisdiction.

51. A plain reading of Section 14 of the Limitation Act gives us an understanding that if in good faith a litigant files any suit, application, appeal, revision and review and, subsequently, if it surfaces that approaching of the said forum was done under a mistaken view, the said time period may be excluded from the computation of the time period stipulated in the first schedule of the Limitation Act, 1908.

52. Now the question comes up for consideration that whether the time period prescribed in a special statute, such as Awc©Z m¤úwË cÖZ¨c©Y AvBb, 2001, can be linked up with the provisions of Section 14 of the Limitation Act, 1908. The learned Advocate for the petitioner, in a desperate attempt to bring this case within the ambit of Article 102(2) of the Constitution, had referred to the case of Md. Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43 by submitting that when special law prescribes a time limit, Section 14 is incapable of rescuing a petitioner. The above submission was advanced aiming at convincing us that since the petitioner is by now time barred to approach the tribunal, she has no forum available to save her property.

53. In the said case of Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others 17 BLD (AD) 43, the petitioner, as a Government servant, had approached the Administrative Tribunal seeking retrospective promotion and the application was though allowed by the Tribunal, however, the Appellate Tribunal rejected it on the ground of limitation as the petitioner had filed the application beyond the period of limitation prescribed in the relevant law. The decision was upheld by the Appellate Division. In the said case, in our view, the petitioner had rightly approached the Tribunal and, then, had availed all the appellate forum upto the Appellate Division. But, in the case at hand, the petitioner instead of filing an application before the Tribunal invoked the writ jurisdiction directly. Thus, so for as the issue of forum is concerned, the decision goes against the petitioner as the cited decision clearly shows that approaching the tribunal was a correct step by the petitioner of the cited case. Since the petitioner of the said case failed on the issue of limitation, a pertinent question has now arisen that because of the lack of the knowledge on the limitation point, whether a citizen should be deprived of enjoying his/her right to property. We shall endeavour to deal with this issue at this juncture.

54. Apparently, from the reading of the said case, it may appear that Section 14 of the Limitation Act, 1908 is not applicable in this case as well. However, in the recently decided case of Abdul Wahab Sheikh Vs Md. Kamal Hossain and others 20 BLT (AD) 282 our Appellate Division upon examining the wordings of Section 29 of the Limitation Act, 1908 in tandem with revisiting the cases of Md. Abdus Sukkur Vs Chairman, National Board of Revenue and others, 17 BLD (AD) 43; 46 DLR (AD) 1, Government of Bangladesh Vs. Md. Abdul Karim 47 DLR (AD) 146; Jahangir Kabir Vs Bangladesh 48 DLR(AD) 156 and the case of Abul Bashar Vs ICB 52 DLR (AD) 178 has reviewed its own view having held that unless any special law expressly excludes the applicability of Section 14 and the other Sections of the Limitation Act, 1908 as mentioned in Section 29 of the said Act, they shall be applicable.

55. Given the above constructions of the provisions of Section 29 of the Limitation Act, 1908, as interpreted in the above cited case by our Apex Court, apparently the said provision transpires to be a helpful and safeguard provision for a petitioner, who is required to deal with the time-limitation under a special law, for agitating his right before the tribunal. Section 29 of the Limitation Act, 1908 now may be quoted below:

29. Saving- (1) …………..…………
(2) Where any special law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in sections 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special law; and
(b) the remaining provisions of this Act shall not apply. (underlined by us)

56. From the perusal of the above provisions of law it appears that the provisions contained in Sections 4, 9 to 18 and Section 22 shall be applicable for computation of time-limit for institution of any suit, making any application, preferring any appeal and filing revision or review under a special law if applicability of the said provisions has not been expressly negated or ousted in the concerned special law. From the very wordings of Section 29(2) of the Limitation Act, 1908 any one with ordinary prudence would take the above view. It is widely known to the learned members of the Bench and Bar, even to most of the lay people, that the time which are required and consumed for obtaining certified copy or the vacation period of the Courts are usually deducted from not only the limitation period of ordinarily laws, but also from the special laws’ time-limitation. The source of this long-standing practice is none other than Section 29(2) of the Limitation Act, 1908 which speaks about applicability of the Sections 4, 12 and 14 of the Limitation Act, 1908 in reckoning the limitation period under the special laws.

57. In the অর্পিত সম্পত্তি প্রত্যর্পণ আইন ২০০১, evidently, the application of the provisions of Section 14 having not been excluded expressly, therefore, we hold that the provisions of Section 14 of the Limitation Act may be taken into consideration in computation of the time limit. In other words, since the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ is a special law wherein a certain time-limit has been stipulated to file any application before the tribunal and since, as per the provisions of Section 29(2)(a), provisions of Section 14 shall be applicable for not being excluded by any express provision of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ we are of the view that the petitioner is well competent to seek the protection and benefit of Section 14 of the Limitation Act, 1908 and, thereby, she may be allowed to exclude the time spent in this Court from the date of filing this writ petition. However, in computation of the number of days for exclusion, it is highly likely that the petitioner might encounter a dilemma in the backdrop of the fact that there was no certain amount of days, such as 120 days or 300 days etc, for filing an application before the tribunal when the latest extension was made upto 31.12.2013 by the latest amendment of law and, thus, the pertinent question may arise before the tribunal that how many days the petitioner may get for approaching the tribunal from the date of pronouncement of this judgment by which the petitioner came to know that she should have availed the said forum, namely tribunal, provided in the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১.

58. It may appear to be a difficult situation for the tribunal to find a straight-forward resolution of this issue. However, to overcome this hurdle, the tribunal may calculate the limitation applying the following method. When the petitioner had filed the writ petition on 19.11.2012, a limitation of 300 days was in operation with effect from 24.09.2012 and, on the basis of the fact that these 300 days were available for the petitioner from 24.09.2012, the petitioner may be given a time of the said 300 days time from the date of delivering this judgment i.e from today. However, the time from 24.09.2012-19.11.2012 i.e. 55 days shall be deducted from 300 days in the light of the fact that the last limitation of the said 300 days commenced from 24.09.2012 and the petitioner filed her writ petition on 19.11.2012.

59. If the petitioner files an application in the tribunal within the above time period, then, the tribunal shall be at liberty to examine the authenticity of the deed of Bainapatra of the year 1963 between the petitioner’s husband and Ms. Radha Rani Basak & Ms. Nanda Rani Basak and to investigate whether the papers submitted before us relating to the judgment and decree dated 30.08.1971 passed in Title Suit no. 290 of 1969 are genuine. Also, the tribunal may ask the petitioner to submit some other papers which we considered in our observation made hereinbefore in this judgment to be crucial for a fair disposal of this case but the same were not submitted before us, such as certified copies of the plaint, written statement and order sheets of the Title Suit no. 215 of 1978 filed before the 6^th Court of Assistant Judge, Dhaka. Notwithstanding the above observations of this Court as to the modus operandi of the trial of the case by the tribunal, it shall be open to the tribunal to take any other step that may deem appropriate for effective adjudication of the petitioner’s case towards ensuring a fair trial and justice for her.

60. In the result, the Rule is discharged, however, without any order as to costs.

61. Office is directed to send a copy of this judgment to the Secretary, Ministry of Land and also to the Bangladesh Law Commission so as to let them consider whether applicability of the provisions of Sections 4, 12 and 14 of the Limitation Act, 1908 should be specifically incorporated in the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১ to ease the functions of the said tribunal and, further, whether the Tribunals should be equipped with the powers of passing interim orders of injunction or any other direction pending disposal of the cases before the said tribunals and also to examine any other lacunas of the অর্পিত সম্পওি প্রত্যর্পণ আইন, ২০০১.

Office is directed to communicate this judgment to them at once.

End.

Shawkat Ali Khan Vs. Ahmed Ali and others

Case No: Civil Petition for Leave to Appeal No. 682 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mohammad Ozair Farooq,,

Citation: V ADC (2008) 315

Case Year: 2008

Appellant: Shawkat Ali Khan

Respondent: Ahmed Ali and others

Subject: Property Law,

Delivery Date: 2006-08-21

Shawkat Ali Khan Vs. Ahmed Ali and others
V ADC (2008) 315

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
Md. Tafazzul Islam J

Shawkat Ali Khan being heirs, Khan dead his Haider Ali and others……… Petitioners
Vs.
Ahmed Ali and others ……………........Respondents

Judgment
August 21, 2006.

We have heard the learned Counsel and perused the materials on record. The learned Counsel for the petitioners failed to point out error of a kind calling for interference with the judgment of the High Court Division which has concurred with the findings and decisions of the appellate Court affirming the judgment and decree of the trial court. Uniform finding of the appellate Court and the trial Court was that the document on the basis of which plaintiffs of the respective suits are claiming interest in the land described in the schedule attached to the plaint of the respective suits were fabricated and fraudulent. On perusal of the judgment of the lower appellate Court and the trial Court we find that there is no reason to take exception to the findings and decisions arrived at by the said courts as regard the kabalas on the basis of which plaintiffs of the respective suits are claiming the land and sought for partition and other reliefs. The findings and decisions of the High Court Division and the Courts below do not suffer from mis-reading or non-consideration of evidence or that mis-construction of document. …. (10)

Lawyers Involved:
Mohammad Ozair Farooq, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioners.
Md. Aftab Hossain, Advocate-on-Record-For the Respondents.

Civil Petition for Leave to Appeal No. 682 of 2005.
(From the Judgment and Order dated November 24, 2004 passed by the High Court Division in Civil Revision No.720 of 2003).

Judgment

Md. Ruhul Amin J. - This Petition for leave to appeal has been filed against the judgment dated November 24, 2004 of a Single Bench of the High Court Division in Civil Revision No. 720 of 2003 discharging the Rule obtained against the judgment and decree dated October 13, 2002 of the Court of Additional District Judge, Manikganj in Title Appeal No. 40 of 1993 (heard along with Title Appeal No. 41 of 1993) dismissing the appeals and thereby affirming the judgment and decree dated March 31, 1993 of the Court of Assistant Judge, Sadar, Manikganj in Title Suit Nos. 82 of 1991 and 102 of 1990.

2. The trial Court by the aforesaid judgment and decree dismissed the Title Suit No. 82 of 1991 and also dismissed the Title suit No.102 of 1990.

3. Title Suit No.102 of 1990 was filed seeking partition and Title Suit No. 82 of 1991 was filed seeking declaration that the deed No. 5649 dated 19.6.1969 is void, fraudulent and fabricated.

4. Decree for partition in Title Suit No. 102 of 1990 was prayed for on the basis of the kabala No. 5649 dated 19.6.1969. In the said suit plaintiff of Title Suit No.82 of 1991 was one of the defendants. Title Suit No.82 of 1991 wherein Sawkat Ali was the plaintiff prayed for cancellation of deed No. 5649 and also for a decree of partition on the basis of the kabala No. 5923 dated 24.9.1968. The trial Court by its judgment and decree declared both the kabalas void, fraudulent and fabricated.

5. As against the judgment and decree of the trial Court the plaintiff of Title Suit No.82 of 1991 who was also a defendant in Title Suit No. 102 of 1990 wherein Ahmed Ali and others were the plaintiffs filed appeals i.e. Title Appeal Nos. 40 of 1993 and 41 of 1993.

6. As against the judgment and decree of the appellate Court, which dismissed both the appeals, the plaintiff of Title Suit No. 82 of 1991 moved the High Court! Division in revisional jurisdiction against the judgment and decree passed in Title Appeal No. 40 of 1993 which was filed against the judgment and decree passed in Title Suit No. 82 of 1991.

7. The case of the plaintiff in Title Suit No. 82 of 1991, who was the defendant in Title Suit No.102 of 1990, was that the deed No. 5649 dated 19.6.1969 on the basis of which plaintiffs of Title Suit No. 102 of 1990 are claiming the land described in the schedule of the plaint of the said suit is fraudulent and ante-dated, that the land owned by Monindra Kumar Shaha was recorded in his name in S.A. record, that Monindra Kumar Shaha by the deeds dated 24.9.1968 and 30.9.1968 sold 1.50 ½ acres of land to Sawkat Ali Khan and said Sawkat Ali Khan mutated his name and paid rent and since purchase he is in possession, that Monindra Kumar Shaha and Rajendra Kumar Shaha sold their property to different persons and migrated to Indis.

8. The case of the plaintiffs of Title Suit No. 102 of 1990 was that Jogendra Nath Saha's land was inherited by his sons Monindra Nath Saha, Rajeshor Saha, Rajendra Nath Saha and Mohendra Nath Saha and widow Ashto Shakti Saha, that by the partition deed dated 9.7.1939 Monindra Nath Saha got 1.79 acres of land and   Rajendra Nath Saha and Mohendra Nath Saha got 5.50 acres of land, Rajeshor Saha's interest devoled upon Monindra Nath Saha, Rajendra Nath Saha and Mohendra Nath Saha. Mohendra Nath Saha sold his share to the extent of 3.10 acres of land to the plaintiffs of Title suit No.102 of 1990 by the deed dated 19.6.1969, that other defendants also purchased some other land, that Mohendra exhausted his share got by the partition deed by selling to the plaintiffs of Title Suit No. 102 of 1990, that plaintiff of Title Suit No. 82 of 1991 in collusion with Mohendra Nath Saha created a deed in respect of the land which on the basis of the partition deed got by Mohendra and Rajeshor, that the deed so created by the plaintiff of Title Suit No. 82 of 1991 is fraudulent.

9. As stated hereinbefore the trial Court dismissed both the suits i.e. Title Suit Nos. 82 of 1991 and 102 of 1990. There were 2 appeals as against the judgment and decree of the trial court and the appeals were dismissed. Thereupon the plaintiff of Title No.82 of 1991 moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division discharged the Rule concurring with the findings and decisions of the trial Court.

10. We have heard the learned Counsel and perused the materials on record. The learned Counsel for the petitioners failed to point out error of a kind calling for interference with the judgment of the High Court Division which has concurred with the findings and decisions of the appellate Court affirming the judgment and decree of the trial court. Uniform finding of the appellate Court and the trial Court was that the document on the basis of which plaintiffs of the respective suits are claiming interest in the land described in the schedule attached to the plaint of the respective suits were fabricated and fraudulent. On perusal of the judgment of the lower appellate Court and the trial Court we find that there is no reason to take exception to the findings and decisions arrived at by the said courts as regard the kabalas on the basis of which plaintiffs of the respective suits are claiming the land and sought for partition and other reliefs. The findings and decisions of the High Court Division and the Courts below do not suffer from mis-reading or non-consideration of evidence or that mis-construction of document.

In that view of the matter we find no merit in the petition.
Accordingly the petition is dismissed.
Ed.

Sheela Kamal Vs Bangladesh and others 2016 (2) LNJ 246

Case No: Writ Petition No. 726 of 2013

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Mr. T.H. Khan,Mr. Sashanka Shekhar Sarker,Mr. A.K.M Jaglul Haider,,

Citation: 2016 (2) LNJ 246

Case Year: 2016

Appellant: Sheela Kamal

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2015-12-14

Sheela Kamal Vs Bangladesh and others 2016 (2) LNJ 246
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Shamim Hasnain, J
And
Mohammad Ullah, J
Judgment on
14.12.2015

Sheela Kamal, wife of late A. F. M. Kamal Uddin of Vilage-West Shiyaldi, Post Office-Ichhapura, Upazila-Sirajdikhan, District-Munshiganj.
. . . Petitioner
- Versus -
The Secretary, Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka-1000 and others
... Respondents.

Governing Body and Managing Committee of Non-Government Educational Institution at the Intermediate and Secondary Level, Regulations, 2009
Regulations 7, 8, 9, 29 (3), 33 and 38

The formation of an ad hoc committee on the basis of such an unilateral inquiry report instead of according approval of the Managing Committee appears to have been taken illegally and the same is a glaring instance of the violation of the principles of natural justice. The learned Deputy Attorney General failed to show us the authority or the basis of the inquiry held by the 2(two) member Inquiry Committee without informing the petitioner or any of the members. It is further necessary to mention that nowhere in the decision of the Board the question of violation of the Regulations or any irregularity with regard to the process of election of the Managing Committee has been raised. Thus it appears that the decision of the Board in not giving approval of the lawful elected Committee of the educational institution was malafide which had been made arbitrarily and for a collateral purpose. We find serious irregularity committed by the respondent no. 3 and, therefore, we consider it prudent to issue an appropriate direction upon the respondents to give approval of the Managing Committee sent on 28.08.2012 by the respondent no. 5, the headmaster of the school. It is to be noted here that there is a provision in regulation 9 that the tenure of the Managing Committee of an educational institution would be of two years from the date of its first meeting to be held under the provisions of regulation 33 of the Regulations. Therefore, the tenure of the Managing Committee of the school would be 2(two) years from the date of its first meeting to be held after necessary permission of the Board is accorded and the names of the members thereof are published in the official notification.

Mr. T. H. Khan, Senior Counsel with
Mr. A.K.M. Jaglul Haider Afric, Advocate
....For the petitioner.
Mr. Sashanka Shekhor Sarkar, D.A.G
...For the respondent no. 3.

JUDGMENT

Mohammad Ullah, J:

On an application under Article 102 of the Constitution, the Rule Nisi was issued calling upon the respondents no. 1-5 to show cause as to why the impugned Memo No. 622/ Munshi/1488 dated 06.01.2013 (as contained in Annexure-‘A’ to the Writ Petition) approving an ad hoc Committee instead of the elected Managing Committee, elected in 2012, should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule this Court vide order dated 29.01.2013 stayed the operation of the impugned order dated 06.01.2013.
The short facts, for disposal of the Rule as found in the averments of the Writ Petition, are as follows:

Ichhapura High School, a non-government educational institution was established in 1892. The affairs of the school is run by a Managing Committee whose tenure is 2(two) years as contemplated in the Board of Secondary and Higher Secondary Education, Dhaka (Governing Body and Managing Committee of non-Government Educational Institution at the Intermediate and Secondary level) Regulations, 2009 (hereinafter referred to as “the Regulations”). The Regulations have been framed under the provisions of section 39 of the Intermediate and Secondary Education Ordinance, 1961 (E.P. Ordinance No. XXXIII of 1961). Prior to the expiry of the tenure of the previous managing committee, the respondent no. 5 being the headmaster of the school initiated the process for holding an election of the managing committee in June, 2012. The proforma respondent no. 6 being the Presiding and Upazilla Education Officer published the election schedule on 19.06.2012 fixing 13.08.2012 as the date for holding election. In terms of the schedule, the election took place on the stipulated date in accordance with the Regulations without any objection from any quarter. The same day the respondent no. 6 declared and published the unofficial result of the said election declaring a 9(nine) member committee (“the Managing Committee”) in which the petitioner had been elected as a member from the category of reserved family guardians. The respondent no. 5, the headmaster of the school was also inducted as a member of the Managing Committee by dint of his position. Thus the total number of members of the Managing Committee stood at 10(ten). The official election result was subsequently published by the proforma respondent no. 6 on 28.08.2012. It is stated in the petition that the election was held in a transparent manner and that at no point of time no one raised any objection about the process of holding the election and result thereof. Pursuant to the declaration of the unofficial result dated 13.08.2012, the respondent no. 5 on 23.08.2012 issued letters to the members of the newly elected Managing Committee notifying them that the meeting of the newly formed Committee would be held on 28.08.2012 with a view to electing the Chairman thereof. Accordingly, on 28.12.2012, a meeting was held in presence of 7(seven) members out of 10(ten) which included the petitioner. In the meeting the Chairman and the co-opted member (person interested in education) were being elected by the members of the said meeting presided over by Mr. Shawkat Hossain (Shamim). The meeting elected Mr. Abul Hossain Howlader as the Chairman of the Managing Committee considering his remarkable performance as Chairman of the immediate past Managing Committee of the school. Mr. M. M. Tofazzal Hossain was elected as a person interested in education as the co-opted member of the Managing Committee. On the same day, i.e., on 28.08.2012, the headmaster (respondent no. 5) of the school issued a letter to the respondent no. 3, Inspector of schools informing that the election of the Managing Committee was duly held on 13.08.2012 and the election of the Chairman along with the co-opted member of the Managing Committee was also held on 28.08.2012. This information was sent by the respondent no. 5 in compliance with the provisions of regulation 29(3) of the Regulations for according necessary approval of the Board. It is stated that the local Member of Parliament started to motivate and influence the elected members to withdraw their support for the elected Chairman of the Managing Committee. But the elected committee members declined to respond to such influence. The local Member of Parliament (M.P.) directed the headmaster of the school to issue a notice directing Mr. Abdur Razzaque one of the Member of the Managing Committee to meet with the M.P. In subordination to the said direction the headmaster wrote a letter to that effect. A copy of the said letter dated 27.09.2012 has been annexed to the Writ Petition as Annexure ‘H’. While the members of the Managing Committee were waiting for approval of the Board, all on a sudden, the respondent no. 5 came to know from the memo dated 20.12.2012 issued under the signature of the respondent no. 3, Inspector of schools about disapproval of the elected Managing Committee. Thereafter on 06.01.2013 another memo was issued under the signature of the respondent no. 3 forming an ad hoc committee for dealing with the affairs of the school. It has been further alleged that neither the Memo dated 20.12.2012 nor 06.01.2013 had been communicated to any of the members of the Managing Committee through official process. However, the respondent no. 5 unofficially received a copy of the memo dated 06.01.2013 delivered to him by an unknown person. Challenging the aforesaid decision of the respondent no. 3, the Inspector of schools, the petitioner being one of members of the newly elected Managing Committee approached this Court and obtained the Rule and the order of stay as stated above.

At the outset, Mr. T.H. Khan, learned Senior Counsel appearing with Mr. A. K.M. Jaglul Haider Afric, learned Advocate for the petitioner, submits that the petitioner was duly elected as a member of the Managing Committee in accordance with the Regulations and when no allegation of any irregularities were raised from any quarter with regard to the process of election, the formation of an ad hoc committee without approval of the elected committee was wholly illegal, malafide and the same had been done at the behest of the local Member of Parliament and, therefore, the impugned order should be declared to be illegal and without lawful authority. Mr. Khan drawing our attention to the report of the inquiry committee dated 28.11.2012 submits that on the basis of a decision of the inquiry committee, approval of the elected Managing Committee had not been given by the Board without giving any opportunity of being heard to any of the members of the committee and as such the principles of natural justice had been violated in the instant case. The learned Counsel questions the basis and rationale of the inquiry which took place behind the back of the petitioner as well as the other members of the newly elected Managing Committee. The learned Counsel lastly submits that after the election of the Managing Committee and the Chairman thereof, there is a procedure under the Regulations to send the result along with the minutes of the meeting to the Board for its approval and the Board has no option but to approve the committee as its routine work.
Per contra, Mr. Sashanka Shekhar Sarkar, learned Deputy Attorney General appearing for the respondent no. 3, submits that the Inspector of schools found that after the election within the stipulated period the list of the elected committee had not been sent to the Board for its approval and on the allegation of some irregularities an inquiry was held wherein it has been revealed that the meeting for electing the Chairman of the Managing Committee was held under duress and as such the Board rightly declined to approve the Managing Committee.
We have heard the submissions of the learned Advocate for the petitioner and the learned Deputy Attorney General for the respondent no. 3 and perused the writ petition, the affidavit-in-opposition and the affidavit-in-reply including the annexures thereto.
It appears that an election schedule was declared on 19.06.2012 fixing the date for filing of the nomination paper by 21-23.07.2012. The date for scrutiny of the nomination paper was fixed for 24.07.2012 and thereafter, the 25^th and 26^th July, 2012 was fixed for preferring an appeal in case of disapproval of the nomination paper. The date for withdrawal of the candidature from the election was fixed for 29.07.2012. The final list of the candidates was published on 30.07.2012. The election was duly held on 13.08.2012 and on the basis of the unofficial result, a notice for holding a meeting was issued on 23.08.2012 pursuant to which a meeting comprising of the elected members was held on 28.08.2012 with the agenda for electing the Chairman of the Managing Committee. At the said meeting Mr. Abul Hossain Howlader who was the Chairman of the previous Committee was unanimously elected as the Chairman of the new Managing Committee. Thereafter the headmaster of the school sent the list of the Committee along with their particulars to the respondent no. 3, the Inspector of schools for approval of and for publication of the same in the official notification. While the elected Managing Committee including the petitioner was awaiting approval for the proposal, they came to know of the disapproval of the Committee issued by the respondent no. 3 by a Memo dated 20.12.2012. Thereafter another Memo dated 06.01.2013 was issued by the respondent no. 3 forming an ad hoc committee to run the affairs of the school.
In considering the legality of the impugned decision taken by the respondent no. 3, we have perused and considered the scheme of the Regulations. The relevant provisions of the Regulations are briefly discussed below:

Regulation 7 provides for procedure of formation of a Managing Committee and regulation 8 prescribes the procedure for electing the President of the Managing Committee of an Educational Institution. Regulation 9 provides for the tenure of the Managing Committee which would be of two years from the date of its first meeting to be held under the provisions of regulation 33. Regulation 26 provides for the procedure of publication of the result of the election of the Managing Committee. Regulation 29(3) relates to, among others, the approval of the Managing Committee of an Educational Institution by the Board. According to the provisions of regulation 29(3) of the Regulations a copy of the election result along with the resolution of a meeting by electing the President of the Managing Committee is required to be sent to the Board for according its approval and the Board in its turn shall publish a notification approving the Managing Committee. Regulation 38 empowers the Board to dissolve the Governing Body or Managing Committee as the case may be on the grounds of inefficiency, mismanagement and financial irregularities etc. Sub-regulation (2) stipulates issuance of a notice giving the members of the Committee an opportunity of being heard prior to a decision of dissolution of such Managing Committee. The Board or the Government is, under no circumstances, empowered to issue any directive to dissolve a proposed Managing Committee formed through a transparent, free and fair election process or to form an ad hoc committee to function as the Managing Committee in place of the elected one. Thus in refusing to give approval of the Managing Committee and the formation of an ad hoc committee the respondent no. 3 has clearly exceeded his authority inasmuch as he has not been empowered to do so under the Regulations. When a list of members of a newly elected Managing Committee along with a resolution of a meeting of such committee selecting or electing a Chairman has been sent to the Board for its approval under the provisions of regulation 29(3) the Board can not but approve the said Committee as a matter of routine. There is no doubt that a Managing Committee can be dissolved upon certain allegations with prior show cause notice in compliance of the provisions of regulation 38.

In the instant case, however, when the proposal dated 28.08.2012 was sent to the Board for its approval, after the election of the Managing Committee and the Chairman thereof, the Board kept silent inexplicably for a long period of four months; the petitioner came to know about the decision of disapproval of the Board on 28.12.2012. Our attention has been drawn to an inquiry report dated 28.11.2012, on the basis of which the Board took the decision of disapproval of the Managing Committee. The Inquiry Committee is stated to have found irregularities in sending the names of the newly elected committee to the Board. But we do not find the existence of or any basis for exercise of authority for conducting the inquiry in the first place. The finding that the newly formed Managing Committee and the Chairman thereof were elected under duress was made in the absence of the petitioner or the other elected members. Infact no notice was served upon any of them as to conduct of such inquiry. Therefore, the formation of an ad hoc committee on the basis of such an unilateral inquiry report instead of according approval of the Managing Committee appears to have been taken illegally and the same is a glaring instance of the violation of the principles of natural justice. On our query, the learned Deputy Attorney General failed to show us the authority or the basis of the inquiry held by the 2(two) member Inquiry Committee without informing the petitioner or any of the members. It is further necessary to mention that nowhere in the decision of the Board the question of violation of the Regulations or any irregularity with regard to the process of election of the Managing Committee has been raised. Thus it appears that the decision of the Board in not giving approval of the lawful elected Committee of the educational institution was malafide which had been made arbitrarily and for a collateral purpose. We find serious irregularity committed by the respondent no. 3 and, therefore, we consider it prudent to issue an appropriate direction upon the respondents to give approval of the Managing Committee sent on 28.08.2012 by the respondent no. 5, the headmaster of the school. It is to be noted here that there is a provision in regulation 9 that the tenure of the Managing Committee of an educational institution would be of two years from the date of its first meeting to be held under the provisions of regulation 33 of the Regulations. Therefore, the tenure of the Managing Committee of the school would be 2(two) years from the date of its first meeting to be held after necessary permission of the Board is accorded and the names of the members thereof are published in the official notification.
Having considered the materials on record and in the facts and circumstances of the case, we find substance in the Rule. The Rule, therefore, succeeds.
In the result, the Rule is made absolute.
Both the decisions of the respondent no. 3 dated 06.01.2013 and 20.12.2012 (as contained in Annexures- ‘A and A-1’) forming an ad hoc committee and refusing to give approval of the Managing Committee are hereby declared to have been done without lawful authority and of no legal effect.
The respondent no. 3, the Inspector of Schools is directed to issue formal approval of the Managing Committee and publish the same in the official notification within 15(fifteen) days from the date of receipt of a copy of this judgment.

Let a copy of this judgment and order be sent to all of the respondents for compliance.
Ed.

Writ Petition No. 726 of 2013

Sheikh Abdul Mazed Vs. Md. Shomrej Ali Mandal and others, V ADC (2008) 680

Case No: Civil Petition for Leave to Appeal No. 1133 of 2005

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,,

Citation: V ADC (2008) 680

Case Year: 2008

Appellant: Sheikh Abdul Mazed

Respondent: Md. Shomrej Ali Mandal and others

Subject: Declaration of Title,

Delivery Date: 2006-7-9

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin
Md.Tafazzul Islam J

Sheikh Abdul Mazed
…………………Petitioner
Vs.
Md. Shomrej Ali Mandal and others
…………………Respondents

Judgment
July 9, 2006.

Code of Civil Procedure (V of 1908)
Section 115(2), 115(3), 115(4), 151
The suit was filed seeking declaration of title. … (2)
It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision can be referred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of Civil Procedure when aforesaid courts committed an error in respect “of an important question of law resulting in erroneous decision occasioning failure of justice”. …. (6)

Lawyers Involved:
Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.
Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 1133 of 2005.
(From the Judgment and Order dated May 7, 2005 passed by the High Court Division in Civil Revision No. 1748 of 2004).

JUDGMENT

Md. Ruhul Amin J.

This petition for leave to appeal is directed against the judgment dated May 7, 2005 of a Single Bench of the High Court Division in Civil Revision No. 1748 of 2004 discharging the Rule obtained against the order dated March 3, 2004 passed by the learned District Judge, Satkhira in Civil Revision No. 1 of 2004 dismissing the same and thereupon affirming the order dated June 1, 2003 and November 22, 2003 passed by the 2nd Court of Joint District Judge, Satkhira in Title Suit No. 101 of 1999. The revisional application before the High Court Division was filed under section 115(4) of the Code of Civil Procedure.

2. The suit was filed seeking declaration of title in respect of the land described in the schedule attached to the plaint and for further declaring that the compromise decree passed in Title Suit No.69 of 1997 of the Court of Assistant Judge, Sadar, Satkhira is fraudulent and not binding on the plaintiffs.

3. The defendant entered appearance and filed written statement. At one stage of the suit the plaintiffs filed an application under section 151 of the Code of Civil Procedure with the prayer for staying the operation of the soleh (compromise) decree dated September 1, 1997 passed in Title Suit No.69 of 1997 till disposal of the plaintiffs' suit and the trial Court upon hearing the parties allowed the application so filed with the prayer for staying the soleh decree.

4. The defendants filed an application for vacating the order of stay which was passed on June 1, 2003. The trial Court rejected the said application by the order dated November 22, 2003. Thereupon defendant preferred revisional application before the Court of District Judge as against the orders dated June 1, 2003 and November 22, 2003 and thereupon Civil Revision No.1 of 2004 was registered. The learned District Judge by the order dated March 3, 2004 rejected the revision case. Then the defendant moved the High Court Division in revisional jurisdiction and obtained Rule.

5. It was contended from the defendant-petitioner's side that the soleh decree has already been acted upon long before the filing of the application seeking stay of the said decree by the execution and registration of the kabala and as such there having nothing to stay the trial Court as well as the Court of District Judge were in error in passing the order of stay and in rejecting the prayer for vacating the order of stay.

6. It was contended on behalf of the plaintiff opposite party that in the background of the relief sought in the suit and when the examination of the witness from the side of the plaintiffs has already been commenced as well as in the background of the facts and circumstances of the case the Court of District Judge as well as the trial Court were not in error in passing the orders in respect whereof the defendant moved the Court of District Judge and the High Court Division. It was also contended that since no important question of law is involved in the revisional application filed under section 115(4) of the Code of Civil Procedure and as there has been no failure of justice in view of the order passed by the trial Court and as such the revisional application was not maintainable. The High Court Division on consideration of the totality of the facts of the case of the parties and the relief sought by the plaintiffs was of the view that the trial court did not commit any error in making the Orders impugning which revisional application was filed before the Court of District Judge. The High Court Division further held that the Court of District Judge in the background of the facts and circumstances of the case did not commit any error in refusing to interfere with the orders passed by the trial Court and thereupon in rejecting the revisional application. Finally the High Court Division discharged the Rule upon holding that no important question of law involved in the revisional application.

7. We have heard the learned Advocate-on-record and perused the materials on record. It is seen from the provision of section 115(4) of the Code of Civil Procedure that revision -can be preferred before the High Court Division against an order of the Court of District Judge or Additional District Judge passed under section 115(2) or 115(3) of the Code of Civil Procedure when aforesaid Courts committed an error in respect "of an important question of law resulting in erroneous decision occasioning failure of justice".

8. In the background of the materials on record we are of the view the High Court Division was not in error in discharging the Rule since in passing the order sought to be revised by the High Court Division no error as to important question of law was committed by the courts below and consequent thereupon there was no failure of justice.

Accordingly the petition is dismissed.

Ed.

Sheikh Abdur Rashid Vs. Alhaj Akram Hossain and others

Case No: Civil Appeal No. 14 of 1998

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Fazlul Karim,,

Citation: II ADC (2005) 139

Case Year: 2005

Appellant: Sheikh Abdur Rashid

Respondent: Alhaj Akram Hossain and others

Subject: Property Law,

Delivery Date: 2003-03-11

Sheikh Abdur Rashid Vs. Alhaj Akram Hossain and others
II ADC (2005) 139

Supreme Court
Appellate Division
(Civil)

Present:
Md. Ruhul Amin J
KM Hasan J
Md. Fazlul Haque J

Sheikh Abdur Rashid ................Appellant
Vs.
Alhaj Akram Hossain and others......................................Respondents

Judgment
March 11, 2003.

Code of Civil Procedure, 1908
Section 115

The High Court Division has exceeded its jurisdiction in setting aside the concurrent findings of facts arrived at by the courts below after due consideration of the evidence on record. …. (12)

Lawyers Involved:
Fazlul Karim, Senior Advocate, Instructed by Md Nawab Ali, Advocate-on-Record - For the Appellant.
Mahbubuy Alam, Senior Advocate, Instructed by Md. Aftab Hossain, Advocate-on-Record - For Respondent No.1.
Not represented - Respondent Nos. 2-8.

Civil Appeal No. 14 of 1998
(From Judgment and Order dated 11.8.1997 passed by the High Court Division in Civil Revision No. 765 of 1994)

Judgment:

Md. Fazlul Hauqe J.- This appeal has arisen out of a leave granting order dated 8.1.1998 passed by this Court in Civil Petition for Leave to Appeal No. 1172 of 1997 filed against the judgment and order dated 11.8.1997 passed by the single Bench of the High Court Division in Civil Revision No. 765 of 1994 making the Rule absolute and setting aside the judgment and decree dated 22.4.1993 passed by the learned Subordinate Judge, Bagerhat in Title Appeal No. 170 of 1991 affirming those of dated 21.5.1991 passed by the learned Additional Assistant Judge, Court No. 2 Bagerhat in Title Suit No. 280 of 1991 dismissing the suit.

2. The present respondent No. 1 as plaintiff filed Title Suit No. 501 of 1983 (subsequently) renumbered as Title Suit No. 280 of 1991 in the Court of Munsif, Sadar, Bagerhat for declaration that order by Circle Officer (Revenue) Bagerhat in Miscellaneous Case No. 818/1983-84 and the kabala claimed in the said Miscellaneous case is, void, illegal, forged, fictitious and for permanent injunction restraining the defendant from entering into the suit land and disturbing the plaintiff's peaceful possession in the suit property contending, inter alia, that the suit land originally belonged to Nepal Chandra Poddar and others, who settled the same in favour of Manindra Nath Datta, and Atul Datta @ Arjun Datta in the first part of Baishak, 1344 B.S. Manindra and Atul @ Arjun used to possess the said land on the basis of the said settlement, Atul @ Arjun died in the year 1370 B.S leaving a widow and a brother Manindra Nath Datta as his heirs. Widow of Atul @ Arjun also died and her share developed upon Manindra. The Title of Manindra in the suit land was confirmed in a sole decree dated 13.6.1981 passed in Title Suit No. 51 of 1979 of the court of Munsif, Sadar, Bagerhat.

3. Manindra Nath Datta sold the suit land to the plaintiff by a registered kabala dated 1.3.1983, who mutated his name vide miscellaneous Case No. 29 of 1983. The defendant appellant taking the plea of wrong recording of the suit land in the S.A. Khatian obtained mutation order in his name vide Miscellaneous Case No. 828 of 1983-84 on the basis of a fraudulent document and threatened the plaintiff with dispossession on 5.12.83. Hence the plaintiff filed the suit for the aforesaid reliefs.

4. The present appellant as defendant contested the said suit by filing written statement denying the material statements made in the plaint and contended, inter alia, that Atul @ Arjun alone acquired the suit land on the basis of oral settlement from Nepal Chandra Paddar and others, in the 1st part of Baishak, 1344 B.S. and while he had been in exclusive possession of the suit land, he sold 1.20 acres of land to the defendant appellant by a registered kabala dated 25.6.1962. After purchase the defendant mutated his name and his title in the suit land was perfected by his continuous peaceful possession since his purchase. Manindra had never acquired the suit land jointly with Atul @ Arjun and he is also not heir of Atul @ Arjun. The alleged kabala of the plaintiff and the compromise decree passed in Title Suit No. 51 of 1979 are fraudulent and concocted. The plaintiff had/has no possession in the suit land and it is the defendant appellant, who is in possession of the suit land.

5. The learned Munsif on conclusion of hearing of the suit by his judgment and decree dated 24.11.1986 decreed the suit against which the present appellant filed an appeal before the court of District Judge, Bagerhat being Title Appeal No. 42 of 1987 which was eventually heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 15.5.1990 allowed the appeal and send the suit back on remand to the trial court for disposal after framing issues giving opportunity to amend the plaint and for exhibiting documents according to law.

6. After the suit was send back on remand the same was renumbered as Title Suit No. 280 of 1991 of the Court of Assistant Judge, Sadar Court No.2, Bagerhat but the plaintiff did neither amend the plaint as directed by the Appellate Court nor took any step to paled the son of Atul @ Arjun. The learned Assistant Judge by the judgment and decree dated 21.5.1991 dismissed the suit with the finding that neither of the parties has succeeded in proving the settlement from the original owner without any finding regarding possession although the S.A. record stands in the name of Atul @ Arjun and not Manindra.

7. Being aggrieved by the judgment and decree of the trial Court the plaintiff preferred Title Appeal No. 170 of 1991 in the Court of District Judge, Bagerhat, which was eventually heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 22.4.1993 dismissed the appeal with the finding, inter alia, that from solenama exhibit (a) of Title Suit No. 51 of 1979 it transpires that Manindra got 0.91 acres of land and the defendant Nos. 1 (ka) to 1(ga)and defendant No. 2 got 0.39 acres of land out of the suit land but in fact defendant Nos. 1 (ka) to 1(ga) and defendant No. 2 are not the heirs of Atul @ Arjun and they could have no claim over the property of Manindra and Atul @ Arjun. Apart from those exhibit 3(a) shows that .39 acres of land was shown to have been transferred to P.W. 1 who is the brother of the plaintiff which fact shows that to grab the property of Arjun, Manindra Nath filed Title Suit No. 51 of 1979 and obtained fraudulent decree on compromise with defendant No. 1(ka) to 1(ga) and defendant No.2 and as such the plaintiff could not get any title by his kabala dated 1.2.83 (exhibit-3).

8. The plaintiff appellant being aggrieved by the judgment and decree of the lower appellate court in Title Appeal No. 170 of 1991, filed Civil Revision No. 765 of 1994 in the High Court Division of the Supreme Court of Bangladesh, and a learned Single Judge of the High Court Division, by the judgment and order dated 11.8.1997 made the Rule absolute and decreed the suit after setting aside the concurrent finding of facts arrived at the courts below. The defendant being aggrieved by the said judgment of the High Court Division filed Civil Petition for leave to Appeal No. 1172 of 1997 before this Hon'ble Division and leave was granted in the following terms:-
"Mr. M. A. Wahbab Miah, learned Advocate for the petitioner submits that the impugned judgment is wholly, unsustainable in that the same is based upon a total non-consideration, not only of the findings and reasons of the courts below not to speak of reversing them, and also of the oral and documentary evidence on record. He submits that the High Court Division exceeded its jurisdiction in setting aside the concurrent findings of fact without lawfully reversing them and without any reason."

9. Mr. Fazlul Karim, the learned Advocate appearing on behalf of the appellant before us submits that the lower appellant court below misconceived the law of evidence regarding certified copy of registered document exhibited without any objection by the plaintiff and that the lower court ought to have found the date of kabala in favour of the defendant No. 1 as it is found from the exhibit-A and from the deposition of D.W. 1. The petition of the defendant for mutation dated 25.2.1962, the date of kabla seemed to have been written as 25.2.1964, which is clerical mistake. The learned Advocate submits that without calling for the volume of registered kabala of, the relevant time from the registrar and verifying the same the observation and finding of the learned court regarding exhibit-A on the basis of a list of Sub-Registrar and the certified copy of Index cannot be accepted as sustainable in law more so the learned revisional Court did not at all give any finding whether the Index submitted by the plaintiff is the Index of Kabala deeds or of any other kind.

10. Mr. Mahbubuy Alam, learned Advocate appearing on behalf of the plaintiff respondent submits that while dismissing the suit the trial Court as well as the Court of appeal below did not consider the compromise decree dated 30,6.81 passed in Title Suit No. 51 of 1979. The High Court Division committed no error in reversing this judgment and decreeing the suit in consideration of exhibits 5 and 6. The learned Advocate further submits that the trial Court and the court of appeal below having dismissed the plaintiff's suit without considering the materials on record the High Court Division committed no error in reversing the judgment and decrees of the courts below. The Courts below did not consider the materials on record specially vital document exhibits 5 and 6 and the-High Court Division did not commit an error in decreeing the suit.

11. It appears from the judgment that the learned Assistant Judge by the judgment and decree dated 21.5.1991 dismissed the suit with a clear finding that neither of the parties succeeded in proving the settlement from the original owner and without any finding regarding possession although the S.A. khatian stands in the name of Atul @ Arjun and not Manindra.

12. Against the said judgment and decree of the trial court the plaintiff preferred Title Appeal No. 170 of 1991 in the court of District Judge, Bagerhat. The said appeal was heard by the learned Subordinate Judge, Bagerhat, who by his judgment and decree dated 22.4.1993 dismissed the appeal with the finding inter alia, that from solenama exhibit 6(a) of Title Suit No. 51 of 1979, it transpires that Manindra got 0. 91 acres of land and the defendant Nos. 1 (ka) to 1(ga) and defendant No. 2 got. 39 acres of land out of the suit land. It is a matter of fact that the defendant' Nos. 1(ka) to 1(ga) and defendant No. 2 are not the heirs of Atul @ Arjun and they could not have claim over the property of Manindra and Atul @ Arjun. Besides this exhibit 3(a) shows that .39 acres of land was shown to have been transferred to P.W 1, who is the brother of the plaintiff, which fact shows that to grab the property of Arjun, Manindra Nath filed Title suit No. 51 of 1979 and obtained fraudulent decree on compromise with defendant No. 1(ka) to 1(ga) and defendant No. 2. The plaint case of the plaintiff is that the plaintiff, Manidra Nath along with his brother Atul @ Arjun had taken settlement from the landlord. Subsequently, the plaintiff has come up with the plaint case that the property, belonged to Atul @ Arjun, who died leaving his wife and the plaintiff (Manindra Nath). The Further case of the plaintiff is that the wife of Atul @ Arjun died therefore, the plaintiff (Manindra Nath) became the 16 annas owner of the suit property. If the plaintiff was a 16 annas owner of the suit property there was no need to have a sole decree in the aforesaid Title Suit with defendant Nos. 1 (ka) to 1 (ga) and defendant No. 2. This story of the plaintiff is absurd. Further, the plaintiff has filed to establish the settlement alleged to have been taken by his brother along with him. Be that as it may the High Court Division has set aside the concurrent findings of fact without discussing the evidence on record. The High Court Division has not at all given a finding with regard to the settlement of the land in favour of either Atul @ Arjun and/or Manindra Nath. Whereas the courts below have come to a finding that neither of the parties of the suit has been able to establish the case of settlement of the Atul @ Arjun and Manindra. The High Court Division as it appears has set aside the concurrent finding of fact without considering the evidence on record. The High Court Division has not considered the soleh (compromise) decree exhibit-6(a) and/or exhibit-3(a) or exhibit-3. Therefore, we are of the view that the High Court Division has exceeded its jurisdiction in setting aside the concurrent finding of facts arrived at by the courts below after due consideration of the evidence on record. Besides there is no finding whatsoever, with regard to the settlement alleged to have been taken by Atul @ Arjun and/or by the plaintiff. Therefore, the courts below rightly dismissed the suit of the plaintiff since the basis of claim of the plaintiff was of settlement and the plaintiff has failed to establish even before us that Atul @ Arjun and/or Manindra Nath had obtained settlement from the landlord. Considering this aspect of the case we are of the view that the High Court Division has committed an error of law in setting aside the concurrent finding of facts arrived at by the courts below and decreeing the suit. The suit was rightly dismissed by the courts below and -we are also of the view that the suit is liable to be dismissed.
Accordingly, the appeal is allowed with cost. The judgment and decree of the High Court Division is set aside and the suit is dismissed.
Ed.

Sheikh Abdus Sabur Vs. Returning Officer, District Education officer-in-charge, Gopalganj, 41 DLR (AD) (1989) 30

Case No: Civil Appeal No. 3 of 1988

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Md. Aftab Hossain,Mr. T. H. Khan,,

Citation: 41 DLR (AD) (1989) 30

Case Year: 1989

Appellant: Sheikh Abdus Sabur

Respondent: Returning Officer, Gopalganj

Subject: Election Matter,

Delivery Date: 1988-9-1

Supreme Court of Bangladesh
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J

Sheikh Abdus Sabur
................................Appellant
Vs.
Returning Officer, District Education officer-in-charge, Gopalganj and others
……………….......Respondents

Judgment
September 1, 1988

The Constitution of the People’s Republic of Bangladesh, 1972
Article 27
The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983),
Section 7(2) (g)
The provision for disqualification of a member of the Union Parishad under section 7(2)(g) of the Union Parishad Ordinance, 1983 for being a defaulter of financial institutions including a bank in the absence of such disqualification for a member of the Parliament is not discriminatory but is constitutionally valid.

Cases Referred To-
AIR 1971 SC 530 (564); Southern Rly Co. V. Greane, 216 U.S. 400; Smt. Indira Gandhi V. Raj Narayan, AIR 1975; State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75; Dhirendra Kumar Vs. Government of West Bengal, AIR 1954, SC 424; Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR 1963, SC 268; State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493; Jibendra Kishore Vs. Prov. of East Pakistan, 9 DLR SC 21; Charanjit Lai. Vs. Union of India, AIR 1951 SC 41; Lachhman Das. Vs. The State of Punjab, AIR 1963, SC 22; The State of Bombay Vs. F. N. Balsara, AIR 1951, SC 318, S. 39, the Bombay Prohibition Act, 1949; Ram Krishna Dalmia vs. Justice Tendolkar, AIR 1958, SC 538; Jalan Trading Company vs. Mill Mazdoor Sabha, AIR 1967, SC 691; Anant Mills Vs. State of Gujrat, AIR 1975, SC 134; AIR 1979 SC 478; R.K. Carg v. Union of India", AIR 1981, SC 2138; Lingappa Pochanna vs. Slate of Maharastra, AIR 1985, SC 389; State of Gujarat Vs. Shri Ambica Mills, AIR 1974, SC 1300; Shujal Ali vs. Union of India, AIR 1974, SC 1631; Southern Railway Co. Vs. Greane (1909-216 U.S. 400); Middleton Vs. Texas P & L Co, 248 U.S. 152; Gulf Colorado Rly. v. Ellis, 165 U.S. 150; Shujat Ali vs. Union of India, AIR 1974, and SC 1631; the State of Madras Vs. V. G. Row, AIR 1952, and SC 196; Doland Paul Lublin Vs. Leonard Panish, US-SCR—39 L. Ed-2nd, 415-709; Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134; State of Madhya Pradesh Vs. Mandawar, AIR 1954 (SC); Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117; State of Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493; A.I.R. 1974 S.C. 1300; AIR 1979 S.C. 478 and AIR 1981 S.C. 2138; Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa Pochanna AIR 1985 S.C. 389; Anwar Ali Sarkar AIR 1952 SC 75; Kotch Vs. River. Port Pilot ‘Comm’rs (1947) 330 U.S. 552; West Coast Hotel Co. Vs. Parrish, (1936) 300 U.S. 379 at page 400; AIR 1955 SC 166; R.K. Garg Vs. Union of India AIR 1951 SC 2138.

Lawyers Involved:
Khandker Mahbubuddin Ahmed, Senior Advocate (Fida M. Kamal, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record. — For the Appellant.
T. H. Khan, Senior Advocate (M.A. Wahab Miah, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No. 9
M. Nurullah, Attorney General (Hasan Arif, Deputy Attorney General with him) instructed by B. Hossain, Advocate-on-Record— For Respondent Nos. 1-3.
Not represented. —Respondent Nos. 4-3 & 10-11.

Civil Appeal No. 3 of 1988

JUDGMENT

Badrul Haider Chowdhury J.

1. Appellant was a candidate for election to the office of Chairman of Borashi Union Parishad in the district of Gopalganj which was held on 10.2.1988. He filed his nomination paper but it was rejected by the Returning-Officer on the ground that he defaulted in repaying loan taken by him from the Janata Bank and Krishi Bank and as such he was disqualified from seeking election under section 7(2) (g) of the Union Parishad Ordinance which was inserted by Act 33 of 1987. His appeal was dismissed by the Upazilla Nirbahi-Officer. Then he moved Writ Petition No. 26 of 1988 challenging the order of the Returning Officer. The High Court dismissed the writ petition.

2. Leave was granted to consider the question whether section 7(2) (g) of the Union Parishad Ordinance is hit by the equality provision under Article 27 of the Constitution.

3. The matter was heard at length and the learned Attorney General was invited to address the Court as amicus curiae. Section 7(2) (g) is in the following terms:—

"He has defaulted in repaying the loan taken by him from any specified Bank within the time allowed by the Bank thereon."

Explanation to the enactment gives the list of the specified Banks. It is not disputed that two Banks referred to above are specified Banks.

4. Mr. Khandker Mahbubuddin Ahmed learned Counsel canvassed that the impugned legislation is discriminatory and further it gives no clue as to the purpose of the legislation itself. The gist of his argument can be summed up: "if the legislation is considered beneficial then why the defaulters are debarred from contesting only the Local Council elections. Why not the Parliament?

5. Mr. T. H. Khan learned Counsel appearing for the respondents contended that the purpose of the legislation is discernible from itself. The learned Counsel went further to say that this being a beneficial legislation the Court should not strike it down, rather it should presume the Constitutionality of the impugned legislation and if the Court takes the view that the purpose of the legislation, though justified, falls short to the expectation of the public, necessary recommendation can be made so that the legislation can give shape to the aspirations of the people.

6. Mr. M. Nurullah learned Attorney General in a pains-taking manner has shown that the basis of classification exists and the Court shall not strike down legislation unless it becomes palpable that the legislation is discriminatory on the face of it.

7. My learned brother S. Ahmed, J. has exhaustively dealt with the nature of classification and found that the reasonable classification exists. Though a lengthy debate had taken place as to the purpose of the legislation yet it was found that the legislation itself appears to do certain "clean up" business in the administration of the Local Councils. Defaulters should not be elected members of the Local Councils, inasmuch as; it might clash with public duty.

8. Local Authority, although representative bodies chosen by adult franchise, have not the autonomy of the parliament. Indeed they are dependent on Parliament for their powers. The powers of a local authority derive from statutes and they are exercised subject to the rule of ultra vires. It is true both the members of the parliament and the members of the Local Councils are elected by the same voter; but their respective functions differ widely.

9. The Local Councils are classified on reasonable basis which is apparent from the nature of its duty and that has been highlighted in the judgment of my brother. The only question is whether the Court will make any recommendation or voice the sentiment of the people that the legislation falls short of expectation of the general public. What is the expectation? To say it in short formula "if the defaulters are debarred in contesting local elections, how it is the defaulter can contest for the Parliamentary seat?" Take the case of this person, the appellant, he is debarred from contesting from the Union Council's election and it is conceded that by mere being defaulter in the repayment of the loan he cannot be debarred from the Parliamentary election. My brother Afzal J, focused the sentiment of the appellant by "quoting the jibe of Mr. Ahmed what is sauce for the goose should be sauce for the gander. This is the echo of the sentiment expressed in the judgment of S. Ahmed, J. "when the legislation thought it expedient in the national interest to provide for the impugned disqualification for members of local bodies, they should have provided for similar disqualification for themselves by amending the Representation of the People Order, 1972. Exclusion of members of Parliament is found to be an omission of grave impropriety which, however, may be corrected even now by the law-makers themselves, if not required by any law, at least by dictates of good conscience and high sense of patriotism." I fully subscribe to this view.

10. Next question is whether the Court should make such recommendation. It has been argued in a very discreet manner by the learned Attorney General that the legislature understands and correctly appreciates the needs of its own people and the matter should be left to it. As a general proposition this theory of legislative supremacy is established especially in a country which has a democratic tradition and its evolution over the decades. For instance this proposition is fully valid in Britain. Modem tendencies even in England has led judicial opinion to modify such dictum in its absolute form. Lord Denning observed:—

"It is no longer necessary, for the judges to wring their hands and say: "There is nothing we can do about it". Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it by reading words in, if necessary- so as to do what parliament would have done, had they had the situation in mind." (The discipline of Law P. 16).

11. In U.S.A. it is the other way about and it is the Supreme Court which has been empowered by the Constitution to strike down the legislation offending the Constitution.
Prof. K. C. Wheare in Modern Constitution observed:—

“how much more likely is it that declaration of rights may prove to be in practice little more than words in communities where the executive is held in greater awe than the Constitution, where people are not free to organise themselves or where they lack knowledge and capacity to form a public opinion." (P-71).
The same author notices "It is argued sometimes too, that it is best to rely upon public opinion to control the legislature and to leave the electors at the polls to punish its members if they exceed their powers". The author further observed: "there is not much consolation here to a minority which hopes to sec its rights protected by a Constitution." Therefore, the judicial decision becomes unavoidable and the author makes his reservation by saying "the success of judicial review depends as much upon a well-drafted Constitution as upon the caliber of the judge themselves'. (p-177).

12. While our Constitution recognises the supremacy of the Constitution, it lays fundamental principles of the State policy in Part-II although the principles cannot be judicially enforced. In the Constitution the framers had in view the well defined separation of powers between the executive, legislative and the judiciary. Since it is the written Constitution the judiciary has been conferred the jurisdiction to settle the disputes between citizen and citizen and between State and the citizens. Of necessity, it is judiciary that has to say the last word even in matters of propriety of legislation. The concept of legislative supremacy imported from the soil of a developed country cannot be transplanted into the soil of a developing nation which has a nascent democracy as it is in Bangladesh.

13. A criticism may be levelled that the Court will not go into the morality of any legislation. The answer is short that no legislation can be made on immoral philosophy. Constitutional mechanism in a democratic polity does not contemplate existence of any function what may qua the citizens be designated as political" (Per Shah, J in AIR 1971 SC 530 (564). In the same case Hedge, J, observed: "There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens."

14. Salmond Jurisprudence (11 End) points out "we have now come to recognise that since the law can never be completely certain the judge must be conceded to have the power of making new law in the course of deciding cases and that in exercising this power he will naturally act in accordance with his moral ideas. (P.30)".

15. I would not like to dilate on this point further for the reason that we have found the impugned legislation is not offensive. But upon hearing the learned Counsels there is no hesitation in my mind the frustrated aspiration of the nation needs consideration. If it is a step only that the defaulters should not participate in the nation-building activities the legitimate aspiration of the people will have to be given full shape.

16. Mr. T.H. Khan learned Counsel has voiced the public opinion by saying 'example is better than precept'. My brother Afzal, J, has echoed this view and I fully subscribe to it.
In view of the above, I agree that this appeal should be dismissed.

Shahabuddin Ahmed, J:

In this appeal by special leave the question raised relates to the constitutional validity of Section 7(2) (g) of the Local Government (Union Parishads) Ordinance, 1983—Ordinance No. LI of 1983. It has been contended that this provision of the Ordinance is violative of the equality clause of Article 27 of the Constitution of Bangladesh. S.7 (2) (g) of the Ordinance, which has been brought in recently by the Local Government Laws (Amendment) Act, 1987 (Act XXIII of 1987)—provides for a disqualification for a person seeking election as chairman or member of a Union Parishad; the disqualification is that a person who "has defaulted in repaying any loan taken by him from any specified bank (nationalised banks) is disqualified from seeking election. But as there has been no corresponding disqualification for a person seeking election to the Parliament, though he has alike defaulted in repaying the same kind of loan, it is contended, the disqualification provision offends. Art. 27 of the Constitution of Bangladesh which provides that "all citizens are equal before law and are entitled to equal protection of law", and as such S.7 (2) (g) being discriminatory in nature should be struck down in terms of Art. 26 of the Constitution.

18. The appellant before us was a candidate for election to the office of Chairman of Borashi Union Parishad in the district of Gopalganj which was held on 10 February 1988. He filed his Nomination-paper before the Returning-Officer who however rejected it by an order dated 11 January 1988 on the ground that he defaulted in repaying the loan taken by him from the Janata Bank and Krishi Bank at Gopalganj and as such he was disqualified from seeking election to Union Parishad under S.7 (2) (g) of the Union Parishad Ordinance. He preferred tan appeal before the Nirbahi-Officer, but his appeal was dismissed. Thereupon he filed a writ petition—W.P. No. 26 of 1988—challenging the order of the Returning Officer. In his Writ-petition he claimed that he was a solvent business-man having a number of business concerns including a brick manufacturing industry and a transport business, that he obtained two loans of Tk. 7, 67,000/- from Janata Bank and one loan of Tk. 15, 000/- from Krishi Bank against proper securities by mortgaging his two residential buildings in Gopalganj town and landed property in his village, Dhennabari and also by depositing his Fixed Deposit Receipts. He claimed that he always took keen interest in social welfare activities in his locality and was very popular there. He was elected Chairman of the Union Parishad twice in the past. As to the repayment of the loans, he explained that the loan being fully secured it is recoverable according to the existing law and in terms of his Agreements. He contended that he was not a defaulter in that the loan is to be repaid by instalments spread over a long period of time and that even if he had failed to pay a particular instalment in lime he could not be a defaulter, for, such instalment is recoverable with penalty by way of higher rate of interest. He alleged in his petition that the impugned provision of disqualification recently brought in by amendment of the Union Pari-shad Ordinance is discriminatory in the absence of any corresponding disqualification for a person seeking election to the Parliament though the latter might have taken same kind of loan but defaulted in repayment He assailed this provision invoking Art. 27 of the Constitution and prayed that this provision in section 7(2) (g) should be declared void.

19. The learned Judges of the High Court Division by an order dated 1 February, 1988 summarily dismissed the Writ-petition observing that when the Upazilla Nirbahi-Officer, appellate authority, held on the evidence of two Bank Managers that the appellant was a defaulter there was hardly any ground for interference. The learned Judges did not consider the question whether non-payment of an instalment of the loan in time will make the petitioner defaulter within the meaning of section 7(2) (g) or whether this legislation is violative of any Constitutional provision.

20. The appellant then filed a Leave Petition before us and obtained an order of slay of the Returning-officer's order and participated in" the election subject to the decision of this Court on his Leave Petition. After hearing the leave petition in presence of Kh. Mahbubuddin Ahmed, learned Counsel for the petitioner, and Mr. T.H. Khan, learned Counsel who appeared for the Caveator, Respondent No.9, one of the candidates in the election, and also after hearing the learned Attorney General who appeared at our request, we granted leave to consider only one question, as already referred to namely, whether the impugned disqualification provision of the Union Parishad Ordinance offends the equality of law provision of Art. 27 of the Constitution. By way of information, Kh. Mahbubuddin Ahmed said that the appellant won the election which was held on time.

21. Kh. Mahbubuddin Ahmed, at the outset, referred to different Constitutional provisions and legislative enactments by, or in pursuance, of which different elective bodies including the parliament and Union Parishads have been created and functioning. Article 65 of the Constitution provides that there shall be a parliament for Bangladesh (to be known as the House of the Nation) in which shall be vested the legislative power of the Republic. Art. 66 of the Constitution provides for qualifications and disqualifications for election to, and being members of the Parliament. Qualifications are that a person seeking election to Parliament shall be a citizen of Bangladesh and has attained the age of twenty five years. A person shall be disqualified for election as, or for being, a member of Parliament, who (a) is declared by a competent court to be of unsound mind; (b) he is an undischarged insolvent; (c) he acquires the citizenship of a foreign state; (d) has been, on conviction for a criminal offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; (e) holds any office of profit in the service of the Republic. Clause (g) of Art. 66 provide that further disqualification may be provided "by or under any other law". Representation of the People Order, 1972 (President's Order No. 155 of 1972) which provides for election to Parliament has brought in another disqualification in S.12. It is that a person may be disqualified if he has any share or interest in a contract for supply of goods to or for the execution of any contract with the government.

22. A Union Parishad, and for that purpose all other Local Government Bodies, such as Upazilla Parishad, Pourashava, is not created by any Article of the Constitution; but it has been created by a separate Act of Parliament in pursuance, as appears, of the provision of Art. 9 of the Constitution. This Article provides that the "State shall encourage Local Government institutions composed of representatives of the areas concerned". The Union Parishad Ordinance, 1983, which repealed and to a large extent re-enacted the Local Government Ordinance, 1976 (Ordinance No. XC of 1976) in its application to Union Parishad, is the Statute governing the constitution, function and responsibilities of, and election to, the Union Parishad. Section 7 of the Ordinance, as already referred to, provides for qualifications and disqualifications of chairman and members of a Union Parishad. Qualifications for a person seeking such election are that he is a citizen of Bangladesh and has attained the age of twenty-five years. His disqualifications are that he has been declared by a competent court to be of unsound mind; he is an undischarged insolvent; he has ceased to be a citizen of Bangladesh; he has been, on conviction for a criminal offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; he holds any office of profit in the service of the Republic or of the Union Parishad or any other local authority; he is a party to a contract for work to be done for, or goods to be supplied to, the Union Parishad concerned or has otherwise any pecuniary interest in the affairs of the Union Parishad.

23. It is seen that qualifications and disqualifications in respect of election to a Union Parishad are identical with those in respect of election to the Parliament and that this was the position from the beginning of Independence of the country till" 24 June 1987 when the additional disqualification on the ground of default in repayment of loan has been imposed by an Amendment in the case of Union Parishad election and not in the case of Parliament election. The amending statute, namely Act XXIII of 1987, has amended not only the Union Parishad Ordinance but also has amended five other Ordinance relating to other Local Government Bodies. They are the Paurasava Ordinance, 1977; The Local Government (Upazilla Parishad and Upazilla Administration Re-organization) Ordinance, 1982; The Chittagong Municipal Corporation Ordinance, 1972. The Dhaka Municipal Corporation Ordinance, 1983; The Khulna Municipal Corporation Ordinance, 1984. In each of these ordinances the same disqualification on the ground of default in repayment of loan from the specified banks has been provided where, till these amendments, there was no such disqualification in these Ordinances. The disqualification is that "he has defaulted in repaying any loan taken by him from any specified bank within the time allowed by the bank therefore". The specified banks are also the same in all these Ordinances.

24. Kh. Mahbubuddin Ahmed has referred to President's Order No. 104 of 1972 (Bangladesh Electoral Rolls Order, 1972) which provides for preparation of Electoral Rolls for election of representatives of people to "elective bodies" and has pointed out that an 'elective body means a body constituted by or under any law or constitutional provision consisting of members to be elected on the basis of adult franchise, and that" elective bodies" mean both Parliament and Local Government Bodies including Union Parishads. This view is correct and it has been confirmed by the Electoral Rolls (Amendment) Ordinance, 1984—Ordinance No. XVIII of 1984—which also says that 'elective body' means a local body or Parliament. All these bodies consist of People's representatives elected on the basis of universal adult franchise, that is, they are elected by citizens who have been enrolled on the electoral rolls in respect of their respective electoral areas. Qualifications for a person to be enrolled on an electoral roll are that he is a citizen of Bangladesh and that on the 'qualifying date’ he has attained the age of 18 years of age, and that he is not of unsound mind. Electoral rolls are prepared by or under the authority of the Election Commission in the manner laid down in s. 8 of the President's Order No. 104 of 1972. P.O. 104 of 1972 was made by the President on 29.8.72, i.e. before the Constitution of Bangladesh was made and put into operation on and from 16th December 1973. The Constitution, in Art. 119 (1), has laid down the functions of the Election Commission. The functions are preparation of Electoral Rolls for all elections to the office of President and to Parliament, delimitation of electoral areas, called constituencies, in respect of election to Parliament and conduct of such elections. Under Art. 119 (2) the Election Commission performs such other functions as prescribed by this Constitution or "by any other law". It is in pursuance of this provision of Art. 119 (2) of the Constitution that the Election Commission prepares Electoral Rolls for all other elective bodies including the Union Parishad. In each of the statutes which provide for constitution and function of different elective body’s specific provision has been made empowering the Election Commission to prepare electoral rolls for election of people's representatives to these elective bodies—which are also called local government bodies. The provision for preparation of electoral rolls is uniform in respect of all these bodies including the Parliament. From this position of law, learned Counsel for the appellant argues that law, learned Counsel for the appellant argues that representatives of the people, whether they constitute the National Legislature at the top or the Union Parishad at, the ground level, constitute a single class by themselves and that they have all along been governed by the same or identical law laying down their qualifications and disqualifications for seeking election to these elective bodies and it is for the first time in June 1987 that a discriminatory treatment has been given to persons seeking election to the Local bodies by bringing an additional disqualification for them but exempting members of the Parliament from this disqualification. The learned Counsel has contended that had the law-makers, who are themselves members of the Parliament, any regard for the "equality before law and equal protection of law" in Art. 27 of the Constitution and acted in fair and impartial manner, they would have subjected themselves 10 the same 'disqualification' by amending the Representation of People's Order, 1972.

25. Learned Counsel for the appellant has taken a number of grounds to substantiate his contention that s.7 (2) (g) of the Union Parishad Ordinance is discriminatory offending Art. 27 of the Constitution. He has pointed out that the object and reason for the impugned legislation bringing in the disqualification was not stated in the amending statute—Act XXIII of 1987—and contended that default in payment of loan which is fully secured and recoverable according to terms of the Agreement between lender and borrower as well as under the appropriate law got no reasonable nexus whatever with the borrower's election to, the Union Parishad. Again, if the purpose of the impugned legislation were to help recovery of loans taken from Stale-owned banks and thereby to salvage the national economy from ruin caused by large scale nonrecovery of the loans, then this purpose would be better served by bringing members of Parliament also within the ambit of the disqualification provision, he argues. Learned Counsel further argues that even if the impugned law is defended on the ground of public good—as a beneficial legislation—there can be no earthly reason for keeping members of Parliament away from its ambit. Learned Counsel has argued that persons, such as the appellant, seeking election to the lowest tier of the democratic set-up ordinarily take loan in small amounts, whereas persons seeking election to National Parliament lake loans in big amounts upto crores of taka, and if the latter being defaulter are exempted from the hands of law but the former are subjected to it then the impugned legislation has been made on arbitrary classification of persons and as such must be struck down. The learned Counsel has referred to a number of decisions to substantiate his contentions to which I shall pay attention in due course.

26. Mr. T.H. Khan, learned Counsel for respondent No.9, has also made a lengthy submission, supported by certain decisions, to show that the impugned legislative provision as to disqualification by being a defaulter is not discriminatory in that members of Union Parishad, and for that purpose, all other local bodies, constitute a separate class distinguished from those representing the "people in Parliament. These two kinds of elective bodies, created as they are, by different statutes for performing different functions and acting in different fields, cannot be grouped into one class, he has contended. By giving separate treatment to these distinctly separate bodies of people's representatives, learned Counsel goes on, the legislature acted quite within its power. He has argued that for reasons of history, geography level of education, culture and economic condition of people of the country, the peoples' representatives may, be treated according to different standards by the legislative with a view to attaining some definite objects, and since the local bodies and the Parliament are traveling on distinctly separate paths, they cannot be treated alike for the purpose of legislation. The learned Counsel has argued that among the members of the local bodies there is no inter se discrimination, but all of them have been equally treated. Secondly, a person seeking election to a local body, such as the appellant, though disqualified, is at liberty to seek election to Parliament where the question of default in payment of loan will not arise as a disqualification. As to the object of this legislation, that is, barring a defaulter from seeking election to local bodies, the learned Counsel has submitted that it is a beneficial piece of legislation and though this object has not been expressly stated in the statute it may be gathered from common knowledge about the prevailing state of things and general economic condition of the country vis-à-vis the object for achieving which the statutes created the local bodies. Learned Counsel has pointed out that because of huge amounts of loans, taken from nationalised banks remaining unpaid the national economy has been brought on the verge of collapse and this default clause is quite likely to help strengthen the battered economy. As to exemption of members of the National Legislature from this beneficial law, he has regretted their exclusion which, he says, is highly improper though not unconstitutional. He however hopes that the law-makers will reconsider this aspect of the matter and bring about necessary amendment in the law subjecting themselves to the same disqualification.

27. The learned Attorney General has appeared at our request to assist us in arriving at a correct decision in this case as to interpretation of the Constitution. In general he has adopted the arguments advanced by Mr. T.H. Khan. In addition, he has referred to a great number of decisions of the Indian Supreme Court in which power of the legislature to make reasonable classification of persons, things and transaction on the basis of intelligible differentia, for achieving definite legislative, end, has been examined. He has disagreed with Kh. Mahbubuddin Ahmed that members of Parliament and those of all other elective bodies also known as local Government bodies, constitute one and single class. He has contended that these bodies, Parliament and local Bodies, are quite dissimilar in respect of their nature and functions as well as in respect of legislative objectives for achieving which they are created. He has submitted that in view of special characteristics and different functions and activities of the local bodies different qualifications or disqualifications may be required of persons seeking election thereto. He has referred to the Bengal Municipal Act, 1918 which provides for disqualification for a person seeking election to the Municipal Corporation if he has not cleared his municipal rent and charges. This provision has been retained by the Municipal Ordinance, 1983, he has submitted. He has also cited a decision of the Patna High Court in which it has been held that a Municipal Law which provides that a person who has not cleared municipal dues is disqualified from seeking election as Commissioner thereof is constitutionally valid.

28. From the respective submissions of the parties in this case the question before us is whether the guarantee of the Constitution, in Art. 27, that "all citizens are equal before law and are entitled to equal protection of law" has been disregarded in the impugned legislation, namely section 7 (2) (g) of the Union Parishad Ordinance. First of all it is to be clearly understood what 'the equality of law' means. Sir Ivor Jennings in his "The Law and the Constitution" has stated:

"Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike".

Dicey in his "law of the Constitution', stated:

"Equality before the law does not mean absolute equality of men which is a physical impossibility, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts".

In the "Limitations of Government Power" by Rotundy and others "equal protection of the laws" has been described as:

"The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government's ability to classify persons or draw lines' in creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. Such a classification does not violate the guarantee when it distinguishes persons as 'dissimilar' upon some permissible basis in order to advance the legitimate interest of society."

In Southern Rly Co. V. Greane, 216 U.S. 400 Day-J observed:

"Equal protection of the laws means subjection to equal laws, applying alike to all in the same situation."

Chandrachud J., in "Smt. Indira Gandhi V. Raj Narayan", AIR 1975, and SC 2279 described his idea of equality as:

"All who are equal are equal in the eye of law", meaning that it will not accord favored treatment to persons within the same class."

29. On consideration of the views expressed by these distinguished Judges and Authors as to the meaning of the "equality before law and equal protection of the law", I do not think that I will be able to define this term in a better way, "Equality before law" is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. The term 'protection of equal law' is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. A single law therefore cannot he applied uniformly to all persons disregarding their basic differences with others; and if these differences are identified, then the persons or things may be classified into different categories according to those distinctions; this is what is called 'permissible criteria! or "intelligible differentia", The Legislature while proceeding to make law with certain object in view, which is either to remove some evil or to confer some benefit, has power to make classification on reasonable basis. Classification of persons for the purpose of legislation is different from class legislation, which is forbidden.
To stand the test of 'equality' a classification, besides being based on intelligent differentia, must have reasonable nexus with the object the legislature intends to achieve by making the classification. A classification is reasonable if it aims at giving special treatment to a backward section of the population; it is also permissible to deal out distributive justice by taxing the privileged class and subsidising the poor section of the people. What is of fundamental importance in law-making is that while making a classification the legislature shall not act arbitrarily but make selection on rational basis. In the light of these observation's I shall see whether the impugned legislation is supportable in terms of 'equality of law' within the meaning of Art. 27 of the Constitution. In support of their respective contentions learned Counsels have cited many decisions which I now proceed to consider.

30. In the case of State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75, the Supreme Court of India struck down section 5 (1) of the West Bengal Special Courts Act, 1950 as violative of Art. 14 of the Indian Constitution which provides that "the State shall not deny to any person equality before law or the equal protection of the laws". The impugned section of the law provides that a special Court shall try offences or classes of offences or cases or classes of cases as the State government may direct. Contention of the accused-respondent was that this provision gave arbitrary power to the government to choose any accused person for trial before the Special Court which follows a harsher procedure than the ordinary courts and as such it offended Art. 14 of the Constitution. This contention was upheld with the observation that "the Act has completely ignored the principle of classification followed in the Crl. P.C. and has laid down a new procedure without making any attempt to particularizes or classify the offences or cases to which it is to apply". In Dhirendra Kumar Vs. Government of West Bengal, AIR 1954, SC 424, a similar question arose and the Supreme Court upheld the contention of the accused-appellant that the impugned Notification of the State Government revoking its previous Notification, by which the accused was granted trial by Jury under section 269(1) Crl. P.C., and directing his trial with the aid of Assessors, offended the equality provision in Art. 14 in that the classification of cases and offences to be tried with the aid of Assessors as per Government Notification was not based on any substantial distinction. In Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR 1963, SC 268, a rule made by the Government of the Province laying down certain special qualifications for recruitment of District Munsifs was challenged on the ground that it made arbitrary classification between Advocates of one High Court and those of other High Courts of India. The rule says that a candidate for the post of District Munsif, among other things, must be an advocate of the 'the High Court', which expression meant only the High Court of Andhra Pradesh. The Supreme Court found that this rule introduced a classification between one class of advocates and the rest and that this classification was irrational inasmuch as there was no nexus between the basis of the classification and the object intended to be achieved by the relevant rule. The Court observed:

"When any impugned rule or statutory provision is assailed on the ground that it contravenes Art. 14, its validity can be sustained if two tests are satisfied. The classification must , be based on an intelligent differentia which distinguished persons or things 'grouped together from others left out of the group, and the second is that the differentia must have a reasonable relation to the object sought to be achieved by the rule of statutory provision."

The Court held the rule to be unconstitutional offending Art. 14.

31. Kh. Mahbubuddin Ahmed has given much emphasis on an observation of the Indian Supreme Court in the case of State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493 and has argued that the principle indicated therein is quite applicable to the present case. In that case two laws, one made by the State Legislature and the other made by the Central Legislature, both providing for Dearness Allowances to government servants but at different rates, the higher rate for the Central government employees and the lower rate for the State government employees, came up for consideration of the question whether they were discriminatory'. Contention of the respondent, an employee of the State government, that the law governing his case was discriminatory was upheld by the High Court, but it was rejected by the Supreme Court on appeal on the ground that granting of Dearness Allowance at a particular rate is a matter of grace and not a matter of right and hence the claim against the government for granting Dear-ness Allowance at a particular rate is not justifiable. The Supreme Court however observed:

"It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their conjunction they result in discrimination."

But those laws having been made by two different Legislatures on their respective fields the Supreme Court found no discrimination as alleged by the respondent. In the instant case Kh. Mahbubuddin Ahmed's argument may be acceptable so far as the source of authority of making law is concerned, that is, Parliament, in that both the Representation of the People Order, 1972 and the Union Parishad Ordinance, 1983 have been enacted by Parliament. But the question is whether people's representatives in the parliament and the Union Parishad do constitute one and single class. This question requires to be answered first.

32. A glaring instance of discriminatory legislation offending "equality before law" is available in the case of Indira Gandhi vs. Raj Narayan (supra). There, amended Art. 329-A (4) of the Indian Constitution was assailed, among other things, on the ground of arbitrary classification. Indira Gandhi's election to Lokshabha held in March 1971 was held void by the Allahabad High Court and against that decision she preferred an appeal before the Supreme Court. During pendency of the appeal, Indian Parliament amended the Constitution inserting therein Art. 329A. Clause (4) of this Article made the existing Election Laws retrospectively inapplicable to Parliamentary elections of the Prime Minister and the Speaker; it kept the election of these two personages, who are members of Parliament, beyond the reach of any law past or present; it declared the disputed election of Indira Gandhi valid and further declared that the judgment of the Allahabad High Court was void and the election petition challenging her election abated. Existing Election laws were however kept alive to be applicable to elections of all other members of the Parliament. The Supreme Court struck down clause (4) as grossly discriminatory.

33. Mr. T.H. Khan, in upholding the classification as regards the local Government bodies, has placed reliance on Pakistan Supreme Court's decision in "Jibendra Kishore Vs. Prov. of East Pakistan", 9 DLR SC 21. In that case, upon the wholesale acquisition of all rent-receiving interests the expropriated landlords were sought to be compensated for to some extent and for that purpose they were grouped into ten classes under section 37 of the East Bengal State Acquisition and Tenancy Act, 1950. This classification was challenged as being violative of the ‘equality before law’ provision of Art. 5 of the Constitution of 1956. The classification was based on the landlords' net annual income from their estates, the lower the income the higher the rate of compensation. Munir CJ., upholding the classification observed that if the Legislature once decided to abolish the system of private landlordism in agricultural land and the resources of the State were not sufficient to compensate the outgoing landlords, some means for the rehabilitation of the expropriated landlords had to be devised, and, if in its anxiety to rehabilitate such landlords, the legislature took into consideration the net income of the persons whom it was intended to set on their feet, the classification based on such considerations must be considered to be a necessary result of bringing the expropriating provision of the Act into action. As to "equality of the law and equal protection of law", he observed:

"Whatever the expression equal protection of law may mean, it certainly does not mean equality of operation of legislation upon all citizens of the State... Equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes, in like circumstances."

34. Of the cases referred to by the learned Attorney General "Charanjit Lai. Vs. Union of India", AIR 1951 SC 41, is one of the earliest cases decided by the Indian Supreme Court in the light of Art. 14 of the Indian Constitution. In that case a single manufacturing company namely, Sholapur Spinning and Weaving Company, was treated by the Indian Central Legislature "as a class by itself in view of allegation of mismanagement, and a law was made for better management of the affairs of the company The law, Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950, empowered the Government to appoint Directors of the Board of Management of the company in place of the existing ones. It was contended by the appellant, one of the share-holders of the company, that more or less similar allegation of mismanagement might be brought against other companies of the country but his company had been singled out for discriminatory treatment by the Legislature. This contention was over ruled and it was observed that "guarantee against the denial of equal protection of the law docs not mean that identically the same rule of the law should be made applicable to all persons within the territory of India in spite of different circumstances and conditions". In "Lachhman Das. Vs. The State of Punjab, AIR 1963, SC 22, a particular bank, Patiala State Bank, was treated as a class by itself in the Patiala Recovery of State Dues Act, 1957. This Act provided a special procedure for determination of this bank's dues and recovery thereof—a procedure much harsher than that of all other banks in the country. Validity of this provision of the Act came under challenge; but the challenge was overruled on the ground that the fund of this bank was the state fund distinguished from funds pf other banks which belonged to subscribers and shareholders. In "The State of Bombay Vs. F. N. Balsara", AIR 1951, SC 318, S. 39, the Bombay Prohibition Act, 1949, was challenged under Art. 14 of the Constitution on the ground of discrimination in favour of members of the Armed Forces in respect of use of liquor. The High Court upheld the contention of the respondent that this provision of the Act was discriminatory offending Art. 14, but on appeal the Supreme Court took a different view and upheld the classification observing that "there is nothing wrong in the Legislature according special treatment to persons of the armed forces who form a class by themselves in many respects and who have been treated as such in various enactments and that relaxation of the prohibitory provisions of the Act in favour of the members of the armed forces is constitutionally valid. In the case of "Ram Krishna Dalmia vs. Justice Tendolkar", AIR 1958, SC 538, the classification made was upheld with the observation that the classification to be valid must have reasonable nexus with the object of legislation. In "Jalan Trading Company vs. Mill Mazdoor Sabha", AIR 1967, SC 691, S.10 of the Payment of Bonus Act, 1965 was assailed as being discriminatory. It provided for making bonus payable to workers of the company, whether there were profits in the relevant accounting year or every year. Contention of the Mill owners was rejected by the Supreme Court upon elucidating the "equality” provision in a negative way as:

"Equal protection of the laws is denied if in achieving a certain object, persons, things or transactions of similar circumstances are differently treated and that the principle underlying that different treatment has no rational relation to the object sought to be achieved by the law."

35. In "Anant Mills Vs. State of Gujrat, AIR 1975, SC 134, certain properties were treated as a special class for the purpose of levying conservancy charges at higher rates in the Bombay Provincial Corporations Act, 1949, as amended by the Gujarat Act No. 5 of 1973, in its application to the latter State. The Act also -treated the decided cases as belonging to one category and pending cases as belonging to another category. Both the classifications were held to be constitutionally valid. The Indian Supreme Court considered a Reference made by the President of India under Art. 143 of the Indian Constitution and this matter was reported in AIR 1979 SC 478 as Special Courts Bill 1978. The question was whether the Special Courts Bill, if made into law, would be constitutionally valid. The Bill provided for creation of Special Courts to try certain offences committed by high public officials and political persons during the period of Emergency declared on 25 June, 1974. The classification of persons and offences for trial by the proposed Special Courts which were to follow a harsher procedure than the ordinary courts of the country was seriously assailed on the strength of the equality clause of Art. 14; but the classification was upheld by the Supreme Court which found that there was a reasonable nexus between it and the object of the law to ensure speedy trial of offences committed in peculiar circumstances.

36. In "R.K. Carg v. Union of India", AIR 1981, SC 2138, Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which made a classification between persons having 'black money' and others, was held lo be quite reasonable, and permissible under the 'equality of law' provision of Art. 14 as the privileges and immunities were offered to the class of persons in possession of black money for the purpose of unearthing the black money "for being utilized for productive purposes with a view to effective social and economic planning". In "Lingappa Pochanna vs. Slate of Maharastra", AIR 1985, SC 389, the Maharastra Restoration of Lands to Scheduled Tribes Act, 1975, came under challenge on the ground of discrimination. This Act provided for annulment of transfers of agricultural land made by members of the Special Tribes to members of the advanced communities. Members of the Scheduled Tribes, known as Tribal or Aboriginals, were treated as a distinct, separate class who are poor, backward and very weak in the matter of bargaining with members of other communities who are far advanced economically, politically, strong financially and Very affluent. Many members of the Tribe sold away their agricultural land to members of the affluent communities, some-times at unconscionable low price. The State Legislature enacted the law in question providing for annulment of such transfers if they were made during the "specified period" prior to the making of the law. This classification was held to be constitutionally valid and not discriminatory. Classifications for the purpose of legislation were upheld by the Supreme Court of India in the remaining two cases cited by the learned Attorney General, namely "State of Gujarat Vs. Shri Ambica Mills." AIR 1974, SC 1300 and "Shujal Ali vs. Union of India", AIR 1974, SC 1631.

37. The principles of reasonable classification of persons and things for legislative purposes as stated and explained in the decisions of both Indian and Pakistan Supreme Courts referred to above, have followed the lines of reasonings of the United States Supreme Court which were based on interpretation of the equality clause of the 14th Amendment of the U.S. Constitution. I think it would be quite appropriate if I quote a passage from one of such decisions of the U.S. Supreme Court. In Southern Railway Co. Vs. Greane (1909-216 U.S. 400), supra, Day J, observed:

"While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said cannot be justified by calling it classification."

38. Kh. Mahbubuddin Ahmed has argued that there was no classification between people's representatives in the Local Government bodies and those in the Parliament and they all were treated as one class, so far as their qualifications and disqualifications were concerned, till the impugned Amendment which gave a different treatment to the people's representatives in the local bodies. He argues that this differentiation does not attract the classifications found in any of the decisions cited in this case and this differentiation or classification is arbitrary. He has pointed out that object of the Amendment bringing in the impugned law was not stated therein and if furtherance of economic or financial interest of the Slate were the object, there is no reason whatever for exemption of the members of the Parliament. But the position of law on this point is that it must be presumed that the Legislature is fully aware of the Society's problems and the Legislature makes law to solve such problems keeping in view the welfare of the people. It also must be presumed that when any law is made it is constitutionally valid until the presumption is rebutted by the person who challenges its validity. The United State's Supreme Court in Middleton Vs. Texas P & L Co, 248 U.S. 152, observed:
"It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.
Bruen J, in Gulf Colorado Rly. v. Ellis, 165 U.S. 150, however, warned against carrying this presumption too far and observed:

"To carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clause of the 14th Amendment a mere rope of sand."

Bhagawati J, in Shujat Ali vs. Union of India, AIR 1974, and SC 1631 observed:

"The doctrine of classification should not be carried to a point where instead of being a useful servant it becomes a dangerous master."

In Lachmon Das vs. State of Punjab (supra) Subha Rao J, observed:

"Over-emphasis on the doctrine of classification or an anxious and sustained attempt to find some basis for classification may gradually and imperceptively deprive the article of its glorious content. That process would gradually and imperceptively substitute the doctrine of classification for the doctrine of equality".

39. Kh. Mahbubuddin Ahmed has emphasized "the test of reasonableness" in considering a classification for legislation and has contended that the impugned classification between the same kind of people namely, people's representatives, does not stand the 'test of reasonableness'. He has, in this connection, referred to an observation of Patanjali Shastri CJ., in the State of Madras Vs. V.G. Row, AIR 1952, and SC 196. It is that in forming a correct conception of reasonableness the social philosophy and the scale of values of the Judges participating in the decision play an important part. We do not think that in construing a Legislation the court will adopt a doctrinaire approach which, as F. Ali, J, observes, "might choke all beneficial Legislation". If two categories of persons or things, though they may have some resemblances, differ in material points, then they may be separately treated for the purpose of legislation. I shall, therefore, examine the basic differences in the two kinds of representatives of people as pointed out by the learned Attorney General.

40. Parliament is a creation of the Constitution itself; the local elective bodies are created by their respective statutes in pursuance of Art. 9 of the Constitution, which appears in Part II relating to Fundamental Principles of Slate Policy. These Principles, though they must be applied by the State in the making of law, are not justifiable in court. The main function of Parliament is law making, that is, legislative, whereas the main functions of local bodies are executive in nature. In the case of Union Parishads, the functions are maintenance of law and order and rendering assistance to administration in this matter; adoption of measures for preventing crimes, disorder and smuggling; adoption of development schemes for socio-economic development and implementation of these schemes as well as those assigned to them by higher authorities; development of local resources and their use; protection and maintenance of public properties such as roads, bridges, canals etc., motivation of people for family planning, improvement of sanitary condition and primary education. Besides these functions, the government may entrust to Union Parishads some of the police and Village defence functions. To assist revenue officials in collection of rents and taxes and in preparation of records and assessments is their important responsibilities. For each Union Parishad there shall be a fund known as Union Fund which is managed by, and in custody of, the Union Parishad. These are purely executive functions. Parliament has no function like these. It is true that from among members of Parliament most of the ministers are appointed whose functions are executive in nature, and that regular Parliamentary Committees with some members of Parliament are formed for transaction of business of the parliament. But this does not alter their character and functions as members of the Supreme law-making Body which is one of the three Organs of the Government under the Basic Principle of Separation of Powers between the Executive, Legislative and the Judiciary. Again, a local body is a "body corporate" having perpetual succession with a right to acquire and dispose of property and to sue and to be sued. Above all, members of a Union Parishad are 'public servants' within the meaning of S. 21 of the Penal Code. The term 'Public Servants' denotes some executive control over them and they are subject to disciplinary rules which are applicable to regular government servants. In view of these differences in respect of functions and duties, the Legislature thought it proper and expedient to treat them as a separate class of people's representatives and has provided for the additional disqualification in question.

41. The main object of the 'disqualification’ provision appears to be the furtherance of economic and financial interest of the State and though it has not been expressly stated in the statute it is clear from the nature of duties and responsibilities of the persons constituting these local bodies. It is a common knowledge that for non-payment of loans taken from State owned banks, the national economy has been badly affected. One of the functions of Union Parishads is to help collection of government dues, rent and taxes. Besides, members of the Union Parishad are directly involved in financial transaction in the course of their official duties and running the affairs of the Union Parishad. The fact that these persons are financially handicapped by being 'defaulters' will embarrass them in the discharge of their duties. It is quite natural that a person seeking election to local body, such as a Municipality, will be debarred from doing so unless he clears his dues in rent and taxes to that body. What is the harm if the Legislature extends this bar to his dues to the government controlled banks? The Legislature has not imposed similar bar against persons seeking election to Parliament because it has treated members of Parliament as a separate class and in making classification of persons and things it is not bound by any inflexible standard disregarding vital points of differences. Dead uniformity in making a classification is not necessary and rules of classification may allow flexibility. As Plato said in his 'Politicus' laws would operate like an obstinate and ignorant tyrant if they impose inflexible rules without allowing for exceptional cases. If a law is applicable to all persons of a well defined class, then it cannot be criticised on the ground that similar law has not been made for application to members of other classes. Exclusion of members of the other class, namely the parliament from this law, which is undisputedly a beneficial one, is certainly unethical and morally undependable; but it is not unconstitutional. It is not invalid because it is uniformly applicable to all persons of the same class, namely members of local bodies. When the Legislature thought it expedient in the national interest to provide for the impugned disqualification for members of local bodies, they should have provided for similar disqualification for themselves by amending the Representation of the People Order, 1972. Exclusion of members of Parliament is found to be an omission of grave impropriety, which however, may be corrected even now by the law makers themselves, if not required by any law, at least by dictates of good conscience and high sense of patriotism. But exclusion of members of one elective body from a particular disqualification cannot be a ground for attacking the validity of the law in respect of other local bodies; those who are disqualified to seek election to local bodies face no discrimination if they seek election to Parliament, and secondly, there is no inter se discrimination among members of the elective bodies.

42. The right to seek election to the local bodies or even to the Parliament is not fundamental right guaranteed by the Constitution; it is a statutory right and in the instant case, created by the Union Parishad Ordinance, 1983. Nevertheless, to be a candidate for election is a democratic right which must be jealously guarded and effectively protected against any invasion from any quarter. Thwarting this right by creating artificial classification among the people or attaching 'disqualification' for extraneous consideration will cut at the root of the democratic set up of the republic. In this connection I like to refer to two decisions of the U.S. Supreme Court, one in Doland Paul Lublin Vs. Leonard Panish, US-SCR—39 L. Ed-2nd, 415-709; and the other in Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134. In the first mentioned case, the appellant sought nomination for election to the Country Board of Supervisors. A law of his State Legislature required of a candidate a 'filing fee' before he submits his nomination paper. The appellant was unable to pay the fee and challenged the Statute itself in Court contending that it is discriminatory against him vis-à-vis other candidates who are rich and capable of paying the fee which stands in the way of exercising democratic right. His contention was ultimately upheld by the Supreme Court by a unanimous decision of seven Judges in which it was observed that the provisions requiring filing fee violated the equal protection of law guaranteed by the 14th amendment of the Constitution; it also violated the right of free expressions of democratic views of electors who are deprived of casting their votes in favour of the candidate of their choice. In the other case, similar filing fee for persons seeking election to Texas Democratic Primary for country office was required by the State legislation. This provision of the statute was challenged as violating the equality clause of the 14th amendment; the challenge was upheld, the statute was declared unconstitutional being violative of equal protection of law of the 14th Amendment and was struck down by the Supreme Court.

43. Those cases, we find, are distinguishable from the instant case in that there the persons seeking election did not by their own volition incur the financial disqualification, but the disqualification was imposed by law requiring payment of high amount of filing fee which many candidates found difficult to pay. In the instant case, it is the appellant himself who borrowed the money from bank for his own benefit but did not repay it.

44. In the result, we find that the provision in section 7(2)(g) of the Union Parishad Ordinance, 1983, is not discriminatory but is constitutionally valid. The appeal is, therefore, dismissed. The order of stay granted by this Court is vacated and the appellant's election as Chairman of the Union Parishad in question is set aside. He is directed to vacate his office at once. Fresh election may be held by the Election Commission. In view of the important question of law involved in this appeal we make no order as to costs.

M.H. Rahman J.

I have read the judgments of brother Shahabuddin Ahmed and brother A.T.M. Afzal. I agree that the appeal should be dismissed. As I hold a slightly different view on one or two points I think I should give my own reasonings.

46. The appellant's nomination-paper for election lo the office of the Chairman of Borashi Union Parishad was rejected by the Returning Officer on the ground that he was disqualified from seeking election under S.7(2)(g) of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) as he defaulted in repaying the loan he had taken from the Janata Bank and Krishi Bank at Gopalganj.
47. The appellant contends that he is similarly circumstanced with a Member of the Parliament, both being a representative of the people elected by the electors on the basis of adult franchise, but the Legislature in violation of Art. 27 of the Constitution provided a different disqualification in his case by inserting a new clause, clause (g) in sub-section 2 of Section 7 of the Ordinance No. LI of 1983 by sect. 6 of the Local Government (Amendment) Act, 1987 (Act XXIII of 1987).

48. The appellant's contention may appear irresolvable when one hurriedly glances through the respective provisions for disqualification for election. Art. 66 (2) of the Constitution provides:

"66. (2) A person shall be disqualified for election as, or for being, a member of Parliament who—
(a) is declared by a competent court to be of unsound mind;
(b) is an undischarged insolvent;
(c) acquires the citizenship of, or affirms or acknowledges allegiance lo, a foreign state;
(d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release;
(dd) holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders;
………………………………………………………………………………………
(g) is disqualified for such election by or under any law."

Proviso to Art. 12 of the Representation of the People Order, 1972 (P.O. No. 155 of 1972) provides for another disqualification for election to Parliament-

"Provided that a person shall be disqualified for being a member if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods, to or for the execution of any contract or the performance of any services undertaken, Government."

Sub-section 2 of Section 7 of the Local Government (Union Parishads) Ordinance 1983 reads as follows:

"7. (2) A person shall be disqualified for election or nomination as, or for being, a Chairman or a member if—
(a) he is declared by a competent court to be of unsound mind;
(b) he is an undischarged insolvent;
(c) he has ceased to be a citizen of Bangladesh;
(d) he has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless 9 periods of five years has elapsed since his release;
(e) he holds any full-time office of profit in the service of the Republic or of the Union Parishad or of any other local authority; or
(f) he is a party to a contract for work to be done for, or goods to be supplied to, the Union Parishad concerned, or has otherwise any pecuniary interest in its affairs, or is a dealer in essential commodities appointed by the Government.
(g) he has defaulted in repaying any loan taken by him from any specified bank within the lime allowed by the bank therefore."

Clause (g) was inserted by Sect. 6 of the Act XXIII of 1987, the impeached legislation. It is submitted that in view of similar provisions for disqualification in the two laws passed by the same Legislature insertion of the new financial disqualification, clause (g), without making a corresponding provision in case of a member of the Parliament has violated Art. 27 of the Constitution. It is suggested that such a provision can easily be made by amending P.O. 155 of 1972.

49. It is not necessary to examine in this case whether in view of clause (b) of sub-Art. 2 of Art. 66 of the Constitution any financial disqualification like the impugned clause (g) can be added by making an amendment in P.O. 155 of 1972. I find it more important to point out that in case of the member of the Parliament all provisions for disqualification except the one provided in Art. 12 of P.O. 155 of 1972 are provided in the Constitution. This is important because of the initial objection raised by the appellant’s opponent, respondent 9, that the disqualifications for two different categories of representatives of people having been provided under two separate laws governing distinctly two separate institutions, the question of violation of Art. 27 can not be tested by comparing the two sets of laws, Reliance has been placed on State of Madhya Pradesh Vs. Mandawar, AIR 1954 (SC) 493.

50. In reply to that objection the appellant relied on the following observation made in para 9 of the report of that case;

"It is conceivable that when the same Legislature enacts two different laws but in substance they form one, legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their, conjunction they result in discrimination."

51. No case was cited to show whether the Indian Supreme Court had any occasion to consider the useful hypothesis. For a clear understanding of the ratio decidendi of that case I think I should quote the sentence preceding that observation as well as the sentences following it:

"This power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different Legislatures. Article 14 docs not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplates a law of the Centre or of the State dealing with similar subjects being held lo be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application".

That decision has been consistently followed by the Indian Supreme Court: see Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117, it was contended that Tamil Nadu Rent Act was violative of Art. 14 of the Indian Constitution as in that law, unlike many other Rent Acts in India, there was no provision for re-induction of the tenants in the premises after reconstruction. After referring to Mandawar's case the Indian Supreme Court rejected the contention.

52. The two sets of laws in the instant case cannot be termed as one law, though they were passed by the same Legislature. They are classes apart. The impeached legislation govern only those, and governs them equally, who aspire to be elected to a Local Government institution. The appellant, despite his disqualification to the office of the Chairman of the Union Parishad, will not be debarred from contesting, an election for the membership of the Parliament, if he is otherwise qualified. The Legislative sanctions behind the two sets of laws are also dissimilar. The laws relating to disqualification for election to Parliament excepting the one provided in P. 0. 155 of 1972, can only be amended by two-thirds of the total number of Members of the Parliament. The law relating to the Chairman or member of the Union Parishad can only be amended by a simple majority like any other ordinary law. For this singular distinction I hold that the two sets of laws in the instant case are not comparable for an enquiry into the constitutionality of the impeached legislation.

53. The similarity between a Member of the Parliament and a member of a local body is literally nominal, confined only to the nomenclature of the "representative of the "People". The Local Government institutions in our country had always been under the tutelage of the Government. With the commencement of the Constitution of 16th December, 1972 the concept of Local Self-Government had a promising start. One of the Fundamental principles of State policy was provided in Art. 11 which reads as:

"The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured." (Underlining is mine) There was a separate chapter in Part IV of the Constitution, Chapter II containing articles 59 and 60, for the Local Government".

54. In 1975 by the Fourth Amendment the constitutional structure for the Local Government was radically changed. By Section 2 of Act II of 1975, the comma and all the words after the word ' "guaranteed" in Art. 11 were omitted. Two years after with a view to promoting Local Government institutions the Proclamation (Amendment) Order, 1977 (Proclamations Order No. 1 of 1977) substituted old Art. 9 by the following:

"9. The State shall encourage Local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as/far as possible, to peasants, workers and women (underlining is mine)".

55. The difference 'between the terms 'ensures' and 'encourage' hardly needs an underlining. The Local Government institutions are now under the fostering care of the Government. The provision for encouraging Local Government institution as enjoined under Art. 9 is directory in nature. On the other hand the establishment of a Parliament has been provided in Art. 65 of the Constitution. The Parliament has been invested with the legislative powers of the Republic. Art. 72 provide there shall be at least two sessions of Parliament in every year. Arts. 65 and 72 are mandatory provisions of the Constitution.

56. The learned Counsel for the appellant has strenuously argued that the Legislature had no clear objective when Act XXIII of 1987 was passed. In the preamble the object of the legislation was not at all spelt out. It is submitted that if the recovery of the loans taken from the Stale-owned Banks were the real object then that object could have been better realised by subjecting all kinds of representatives of the people to the same financial disqualification.

57. In modern day legislations the long-winded whereas—expressions have been given a go-bye. I do not find any fault for not mentioning the object in the laconic preamble of the impeached legislation. A mere reading of the law makes the object clear. The object is not the recovery of the loan as suggested by the learned Counsel. The Object is to debar the defaulters from being a member of the local body. It is package legislation. It provides for similar provision for the Paurashabhas, Municipal Corporations, Upazila Parishads and Union Parishads. The rationale for the insertion of new disqualification in case of the members of the local bodies will be abundantly clear if we consider the financial functions of the two different categories of the representatives of the people.

58. While a member of the Parliament has no specific function as to the custody, receipt or disbursement of any public money the Union Parishad has been invested under sections 44 and 45 with extensive powers as to the custody and application of the Union Fund constituted under section 43 of the Ordinance No. LIX of 1983. Those sections have been quoted in the judgment of brother A.T.M Afzal. I need not quote them again. The rational behind the impeached legislation is simple. A person who defaults in repaying his own loans can not be entrusted with wide powers of governance and management of a public fund. In view-of the above, I hold that the rule of parity that enjoins equal treatment of equals in equal circumstances is not attracted in this case. The impeached legislation is not viola-live of Art. 27 of the Constitution.

59. The learned Counsel for both the appellant and respondent No. 9 have questioned the wisdom and propriety of the Legislature in not providing a disqualification similarly to the impeached one in the case of the members of the Parliament. Wisdom and propriety are non-issues in the statute jurisdiction of this Court. When the constitutionality of a statute is challenged the members of the Parliament are not arraigned before the Court. When the Court strikes down legislation no legal consequence follows affecting the members of the Parliament. A member of the Parliament is not answerable to the Court for his legislative functions. He is only answerable to his electors. If the electors are dissatisfied with his work they can give him a lesson by refusing lo reelect him. For a politician that would be a great lesson, indeed, but that is the only democratic means available to the electors for expressing their disapproval to a statute whose constitutionality is otherwise in order.

60. Art. 21 of the Constitution, however, enjoins that it is the duty of every citizen to observe the Constitution. In making a law if the members of the Parliament fail to observe the Constitution then this Court shall remedy that wrong by striking that law down, but what norm other than what is provided in the constitution, should be followed or upheld in making a legislation must be left with the members of The Parliament themselves. Citizens, however, expect that their representatives will set an example worth the trust and the confidence put in them by their electors.

A.T.M. Afzal J.

While I agree with the decision of my learned brother Shahabuddin Ahmed, J. I feel tempted to add a few words because of the prime nature of the question raised in our jurisdiction.

62. The appellant, a candidate for the office of Chairman of an Union Parishad, alleges that the 'disqualification' on the ground of being a defaulter in repaying loan to any specified bank attached to a person seeking election to an Union Parishad as per Section 7(2) (g) of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) is discriminatory because there is no such 'disqualification' provided in the case of election to Parliament. The argument rests on the Constitution-al assurance of equality before law and equal protection of law, a fundamental right, as enshrined in Article 27 of our Constitution which reads;

"All citizens are equal before law and are entitled to equal protection of law".

63. Mr. T. H. Khan, learned counsel for respondent No.9, raised an initial objection contending that qualification and disqualification for election to Parliament & Local Government bodies having been provided under separate laws governing the two separate institutions, one distinct from the other, and there being no discrimination as far as the local bodies are concerned, the question of alleged violation of equality under Article 27 docs not arise. Provisions of two distinct and separate laws cannot be read together, he submits, for invoking the protection of Article 27. I do not consider the objection to be sound. The laws may be different but the field of legislation is the same and they are enacted or capable of being enacted by the same Legislature. The Supreme Court of India in State of Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493 held that "it is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their conjunction they result in discrimination."

64. The question pointedly raised is, why the 'disqualification' of being a defaulter should attach to an election to a local government body only and not to that of Parliament. The provision for such 'disqualification' affecting a person seeking election to a local government body, therefore, offends the guarantee under Article 27.

65. In order to lest the validity of the argument it will be necessary to consider the meaning and scope of Article 27. In the 1956 Constitution of Pakistan it was Article 5(1) and in 1962, Article 15. This Article corresponds to Article 14 of the Constitution of India which reads thus:

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".

This again corresponds to the last clause of the first section of the Fourteenth Amendment of the American Constitution which reads as follows:

1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person with its Jurisdiction the equal protection of the laws."

66. This provision of 'equality before law’ and 'equal protection of law’. The first clause has been regarded by American Judges as The "basic principle of republicanism and the second 'a pledge of the protection of equal laws' has been the subject of discussion by eminent authors and judges in numerous cases particularly in the United States of America and India. The broad principles governing the application and extent of the Article in question have been iterated and reiterated in so many cases that "it would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of equality before the law has been applied" observed Mathew, J. in A.I.R. 1974 S.C. 1300. In later decisions AIR 1979 S.C. 478 and AIR 1981 S.C. 2138 Chandrachud CJ. and Bhagwali, J. (as he then was) respectively observed the propositions applicable to cases arising under Article 14 have been repealed so many times during the last 30 years in course of "the avalanche of the cases which have flooded this court" since the commencement of The constitution the they now sound almost platitudinous.

67. I shall, therefore, refrain from making copious reference to the decisions cited at the Bar beginning from the case of Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa Pochanna AIR 1985 S.C. 389 besides some cases from the American Jurisdiction. Nevertheless, I propose to project a Kaleidoscopic view of the wisdom and learning through the books referred to us and try to find out normative generalizations which are accepted on all hands.

68. It will be seen that the Indian Court's view has been moulded on the American lines and it is perhaps imperative to begin with Professor Wills who in his book "Constitutional Law" Edn. 1 p.578 summed up the law as to the Fourteenth Amendment thus:

"It forbids class legislation, but docs not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited cither in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed'. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation". It does not take from the Slates the power to classify either in the adoption of Police laws or lax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."

69. It appears the all the decisions whether in America, India or Pakistan have echoed and reechoed in different language the view expressed above and are unanimous on the following propositions relating to the guarantee under Article 27:

1. The principle of equality docs not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require separate treatment.

2. It requires the all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.

3. It forbids class legislation but it docs not forbid reasonable classification for the purpose of legislation. In order, however, to pass The test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like, what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

4. The Suite, in the exercise of its government power, has of necessity to make laws operating differently on different groups or classes of persons to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things lo be subjected lo such laws. The laws can make and set apart the classes according to the needs and exigencies of the Society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.

5. To overdo classification, however, is to undo equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments.

6. The Courts should not insist on delusive exactness or classification in any given case. Classification is justified if it is not palpably arbitrary.

7. There is always a presumption in favour of the Constitutionality of a Statute and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the Legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

70. As far as, the aforesaid principles are concerned, the learned counsel appearing in this case do not join any issue but they have tried to put occasional emphasis on certain observations made in the reported judgments according to their respective advantage. Indeed there has hardly been any dispute on the question of principles; the difficulty is created in their application to concrete case. No two cases are similar in facts although the question raised is the same, i.e. of discrimination. The courts have always objectively considered the impugned provision in question in each case in the light of the aforesaid principles for an answer to the charge of violation of the constitutional guarantee as under Article 27.

71. However it is interesting to find, observed Patanjali Sastri CJ. in the case of Anwar Ali Sarkar AIR 1952 SC 75 that the trend of recent decisions in America has been to lean strongly towards sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination and "the farthest swing of the pendulum" is to be found in the case of Kotch Vs. River. Port Pilot ‘Comm’rs (1947) 330 U.S. 552. It says:

"The Constitutional Command for a Slate to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public interest could not be provided, how ever essential that regulation might be."

72. All that have been argued by Kh. Mahbubuddin Ahmed in support of his contention of discrimination is that there is no reasonable basis of differentiation between a member of the Parliament and a member of the Local Government body, they belong to one class and that is, they are representatives of the people, elected by the same electorate on the basis of adult franchise. The qualification and disqualification for seeking election in both cases have hitherto been the same. Now an additional disqualification has been provided for election in the local government body only. He has submitted that even if it be conceded that there is some recognisable basis of difference between the two bodies yet the impugned provision will offend Article 27 because there is no nexus between the basis of difference and the object sought to be achieved by the impugned provision.

That there is an 'intelligible differentia' between Parliament and a Local Government body will not perhaps be resisted except by an unrepentant diehard. Parliament is an institution created under the Constitution and vested with the legislative powers of the Republic whereas a Local Government body is a creature of ordinary law and entrusted with the authority of local administration only. They are legally, historically and functionally different even though they consist of peoples' representatives. I need not dilate any further because my learned brother Shahabuddin Ahmed, J. has considered the matter at length and found that although people's representative they belong to separate class. I venture to think that Kh. Mahbubuddin Ahmed also did not consider himself on particularly strong ground as to the first part of his submission. So he put all emphasis on the second part contending that the disqualification of being a defaulter in the case of a Local Government body only docs not bear any rational relationship with the basis of difference between it and the Parliament. He submits that if the provision of 'disqualification' of being a defaulter was fell so necessary in the public interest, could there be any good reason to attach the same only in case of election to the Local Government body and exclude the members of the Parliament from its operation. What is sauce for the goose should be sauce for the gander, he argues.

73. In answer to the last part of the second submission, apart from the principles referred to in item 4 above, 1 shall quote Hughes CJ. in West Coast Hotel Co. Vs. Parrish, (1936) 300 U.S. 379 at page 400:

"This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all classes which it might possibly reach. The legislature is free to recognise degree of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. There is no 'doctrinaire requirement' that the legislation should be couched in all embracing terms."

74. In the same vein Bhagwati, J. said in the case of Sakhawat Ali AIR 1955 SC 166:

“*********** that legislation enacted in the achievement of a particular object or purpose need not be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution".

75. Mr. Ahmed contended as part of his submission that impugned legislation on the face of it is bad in any case because it does not inform or lay down the object and purpose for which it was enacted. The law does not say why the disqualification was attached to Local Government body only leaving out the Parliament.

76. A law cannot be struck down merely because it fails to spell out the particular objective of provision in the legislation itself. In the instant case the impugned clause (g) was brought in by the Local Government Laws (Amendment) Act, 1987 (Act XXIII of 1987) apparently for the purpose of providing an additional 'disqualification' for a person seeking election to an Union Parishad. For the purpose of withstanding a challenge to its constitutionality as being violative of Article 27 it was to stand the test of justification for being attached to Local Government body election only. And for that, to begin with, item 7 of the propositions as above will be attracted, i.e., the court will presume the Constitutionality of a Statute until shown otherwise. Bhagwati, J. in the case of R.K. Garg Vs. Union of India AIR 1951 SC 2138 reiterated that "the presumption of Constitutionality is indeed so strong that in order to sustain it, the Court may take into Consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".

77. Taking a cue from the said observation, Mr. T. H. Khan argued, that it is a matter of common knowledge, a fact of life, that non-repayment of loan to the public loan-giving agencies (specified banks) has taken such proportions that the economy of the country has been adversely affected. The threat of "disqualification" for being a defaulter to persons seeking election in the local government bodies will be a great incentive for repayment of the said loans which ultimately will benefit the economy and the country. Beneficial as it is the court will not undo such legislation on the ground that its wholesome provision has not been made operative in the case of members of Parliament. Mr. Khan, an ex-member of Parliament and once a Law Minister himself has urged that instead of undoing the good work done by the Parliament in providing the 'disqualification' for being a defaulter in the Local Government election, this court should recommend similar provision to be made in case of Parliament election also on the general principle that 'example is better than precept'. While I appreciate the moral tenor of Mr. Khan's submission and indeed the reasons, to some extent, for upholding the impugned piece of legislation, I do not think that his arguments have completely answered the second branch of Mr. Mahbubuddin's contention upon which he laid stress over again.

78. Now coming to that part, I think the submission made by the learned Attorney General has squarely met the said contention on constitutional premises. The substance of his submission is that the 'disqualification' as provided in the impugned legislation has got a direct relationship with those considerations which distinguish the Parliament from a Local Government body. Thus the two tests, that of reasonable classification and nexus between the basis of classification and the object of the legislation, having been satisfied, the learned Attorney-General concluded, the challenge to the constitutionality of section 7(2)(g) docs not hold good.

79. It has been noticed that both historically and legally the functions of the two bodies—that of Parliament and Local Government body, are different and it is this characteristic which mainly distinguishes one from the other. I shall presently consider the Union Parishad only vis-à-vis the Parliament. One of the important functions of the Union Parishad relates to dealing with public funds. If one goes to the roots, it will be seen that since the creation of the 'Union-Board,' predecessor of the present day Union Parishad, under the Bengal Village Self-Government Act, 1919, provision has been made for a "Union Fund". This Union Fund has grown in bulk and size over the years and its application expanded greatly with the ever-expanding area of activity assigned to a Union Parishad.

80. In order to appreciate how much public money are in the hands of an Union Parishad and how wide are its powers in dealing with such public money it is necessary to sec the provisions of section 43, 44 and 45 of the Local Government (Union Parishads) Ordinance, 1983.

43. Constitution Union Fund.-(1) For every Union Parishad there shall be formed a fund which shall be known as the Union Fund.
(2) To the credit of a Union Fund formed under sub-section (1) shall be placed—
(a) the balance of such fund as on the coming into force of this Ordinance is at the disposal of the Union Parishad of which the Union Parishad concerned is the successor;
(b) the proceeds of all taxes, rates, fees and other charges levied by the Union Parishad under this Ordinance.
(c) all rents and profits payable or accruing to the Union Parishad from the property vested in or managed by the Union Parishad;
(d) all sums received by the Union Parishad in the performance of its functions under this Ordinance or under any other law for the time being in force;
(e) all sums contributed by individuals or institutions or by any local authority;
(f) all receipts accruing from the trusts placed under the management of the Union Parishad;
(g) all grants made by the Government and other authorities;
(h) all profits accruing from investments; and
(i) such proceeds from such sources of income as the Government may direct to be placed at the disposal of the Union Parishad.

44. Custody or investment of Union Fund and establishment of Special fund. - (1) The moneys credited to a Union Fund shall be kept in Government treasury, or in a bank transacting the business of a Government treasury, or in such other manner as may be specified by the Government from time to time.
(2) A Union Parishad may invest any portion of the Union Fund in such manner as may be prescribed.
(3) A Union Parishad may, and if required by the Government shall, establish and maintain a separate fund for any special purpose, which shall be administered and regulated in such manner as, may be prescribed.

45. Application of Union fund.- The moneys from time to time credited to a Union Fund shall be applied in the following order of preference:-

First, in the payment of salaries and allowances to the officer and employees of the Union Parishad;

Secondly, in meeting the expenditure charged on the Union Fund under this Ordinance;

Thirdly, in the fulfillment of any obligation and in the discharge of any duly imposed on a Union Parishad under this Ordinance or under any other law for the time being in for

Fourthly, in meeting the expenditure declared by the Union Parishad with the previous sanction of the Upazila Parishad or the Thana Parishad, as the case may be, to be an appropriate charge on the Union Fund; and

Fifthly, in meeting the expenditure declared by the Government to be an appropriate charge on a Union Fund.

81. On the other hand, Parliament has no such public fund at its disposal and it is no part of its business to engage in spending public money. There may be a popular belief that Parliament have also to deal with public fund in' the sense that it has to approve the national budget. Yes, it docs but that is only a part of the Parliament's legislative function. It never sees the colour of the Money as does an Union Parishad every day, seven days a week.

82. In this context having regarded to the financial duties and responsibilities and Union Parishad, is it very difficult to see the import of the 'disqualification' of being a defaulter attached to a person seeking election in the Union Parishad? A man who is himself a defaulter in repaying public money is certainly not the ideal person to be entrusted with public fund. To allow such a defaulter to deal with public fund is to ignore the conflict that must arise between his liability and public duty — a situation which cannot be in the public interest and welfare, f have, therefore, no hesitation to hold that the impugned legislation qualifies the second test also and the challenge to its constitutionality as offending Article 27 must fail.

83. Mr. Mahbubuddin submitted that it may not be denied that the new 'disqualification' is a measure in the public interest but the members of the Parliament having not subjected themselves to such a 'disqualification' have acted malafide in attaching the same only to local body election. Mr. T. H. Khan only deplored, what he called, the lapse on the part of the Parliament and asked for a recommendation as already stated.

84. I do not think that this court has any duty under the Constitution to offer unsolicited advice as to what the Parliament should or should not do. As long as the law enacted by it is within the bounds of the Constitution it will be upheld by this court but if the law is otherwise open to criticism, it is for the Parliament itself to respond in the manner it thinks best. The new 'disqualification' the Parliament has not attached to persons seeking election to it (The House of the Nation) which means that a defaulter in repaying public money can sit in the House of the Nation with glory but he cannot sit in the Union Parishad or a local body. The members of the Parliament owe an answer to this, not the Court. But now that they have declared Islam as the State Religion of the Republic by the Constitution (Eighth Amendment) Act, 1988, 1 shall content myself by reminding them two verses from the Holy Koran Translation:

2. Ye who believe why say ye that which ye do not?
3. Grievously odious is it in the sight of God that ye say that which ye do not. (Sura Saff Ayat 2 and 3) I wish to record my appreciation for the learned Attorney-General for making available all the books cited by the parties in this case.

For the reasons, the appeal fails.

Ed.

Sheikh Abul Hossain and others Vs. Khulna Development Authority

Case No: Civil Petition for Leave to Appeal No.1547 of 2006.

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Chowdhury Md. Zahangir,,

Citation: VI ADC (2009) 79

Case Year: 2009

Appellant: Sheikh Abul Hossain and others

Respondent: Khulna Development Authority

Subject: Property Law,

Delivery Date: 2007-12-05

Sheikh Abul Hossain and others Vs. Khulna Development Authority
VI ADC (2009) 79

Supreme Court
Appellate Division
(Civil)

Present:
Md. Joynul Abedin J
Md. Abdul Matin J

Sheikh Abul Hossain and others ……........Petitioners
Vs.
Khulna Development Authority represented by its Chairman, Upper Jessore Road, K.D.A. Building, Khulna and others……............Respondents

Judgment
December 5, 2007.

It appears that the petitioner himself applied for allotment of a plot acknowledging the ownership of the Government and therefore he cannot question the title of the Government and pray for a decree as prayed for. … (9)

It further appears that once the land is vested in the Government the original owner cannot get back the land only because the land remained unutilized. Section 78 of the K.D.A. is of no avail to the petitioners. …. (10)

Lawyers Involved:
Mahbubey Alam, Senior Advocate instructed by A.K.M. Shahidul Huq, Advocate-on-Record- For the Petitioners.
Chowdhury Md. Zahangir, Advocate-on-Record-For the Respondents.
Not represented-Respondent No. 2.

Civil Petition for Leave to Appeal No.1547 of 2006.
(From the judgment and order dated 05.01.2006 passed by the High Court Division in Civil Revision No. 2372 of 1993.)

Judgment

Md. Abdul Matin J.- This petition for leave to appeal is directed against the judgment and order dated 05.01.2006 passed by the High Court Division in Civil Revision No. 2372 of 1993 making the Rule absolute and reversing the judgment and decree dated 27.03.1993 passed by the learned the then Subordinate Judge (now Joint District Judge), Second Court, Khulna in Title Appeal No.122 of 1990 affirming those dated 31.03.1990 passed by the learned Assistant Judge, Khulna in Title Suit No. 28 of 1989 decreeing the suit.

2. The facts, in short, are that the petitioners as plaintiffs instituted the Title Suit No. 28 of 1989 in the Court of learned Assistant judge, Khulna for a declaration that a letter under memo No.105/86-88-9420 dated 05.01.1989 issued by the defendant respondent No.1 herein refusing to return the land described in the schedule of the plaint to them is illegal, void etc. and that the plaintiffs are entitled to get back the schedule land @ Tk.712/- per katha at the maximum and for mandatory injunction for return of the schedule land to the plaintiffs and also for restraining the defendants from transferring the suit land in any way to any one other than these plaintiffs and other ancillary reliefs, stating, inter alia, that land measuring 88 decimals appertaining to present plot No.18.42 (former 1787) within Mouza Chhoto-Boyra, P.S. Sonadanga, District-Khulna belongs to late Parash Ullah, Yunus Sheikh, Nasaruddin Sheikh and plaintiff No.8 Sheikh Abdur Rahman was recorded in khatian No. 849 in the District Survey and 862 in S.A. Survey. Out of the above land 66 decimals of land are acquired for the construction of Mujgunni Main Road at the instance of the defendant respondent K.D.A. in L.A. Case No.2A/1965-66. Out of the total acquired land 17 decimals were used for the said purpose and the remaining 49 decimals kept unused. On 02.08.1986 the plaintiff filed an application to the respondent No.1 for return of the unused 45 decimals of land. The defendant respondents by letter dated 05.01.1989 refused to return the scheduled land for reason hat the said land having been acquired for development of plots for commercial purpose by the road side and also that the suit land cannot be said unused land. The plaintiffs claimed that they are entitled to get back the unused land by refusing the compensation money they had received together with development cost as per law. The land claimed by the plaintiffs bearing plot Nos. 15-20 is shown in a draft sketch map is annexed to the plaint and basing on those facts and circumstances the plaintiff petitioner filed the instant suit on 05.02.1989.

3. The defendant respondent No.1 contested the suit by filing written statement denying all the material allegations made in the plaint, contending, inter alia, that along with lands from different persons the plaintiffs suit land were acquired for the purpose of constructing Mujgunni Main Road and Commercial plots by the said of the said road. The compensation money was fully paid and accepted by the plaintiffs after complying with all legal formalities and thereafter possession of the acquired land was taken over fully by the respondent defendant No.1 the K.D.A. and now the authority after construction of the road also made development of the entire acquired land falling by the said of the said road and by raising and leveling the land converted the same into commercial plots and allotted to persons plot by plot through open tender as per prescribed rules of the authority. Now the plaintiffs only to get the suit land on a nominal value illegally to be more benighted and thereby wanted to define those commercial plots as unused lands and as such their suit is liable to be dismissed with heavy cost.

4. Thereafter considering the materials and evidence on record the trial court decreed the suit in favour of the plaintiffs and against the defendant respondents by his judgment and decree dated 31.03.1990 passed in Title Suit No. 28 of 1989.

5. Being aggrieved by and dissatisfied with the aforesaid judgment and decree passed in the said title suit the defendant respondent No.1 preferred a Title Appeal No.122 of 1993 before the learned District Judge, Khulna which on transfer was heard and disposed of by the learned Subordinate Judge, Second Court, Khulna by dismissing the appeal and affirming the judgment and decree of the trial court by the judgment and decree passed in the said appeal dated 27.03.1993.

6. The order of the appellate court was accordingly challenged by the defendant-respondents before the High Court Division in revision and by the impugned judgment and order the High Court Division set aside the judgments of the courts below and made the rule absolute. Hence the petition for leave to appeal by the plaintiff-petitioners.

7. The learned Counsel for the petitioners submits that the learned Single Judge of the High Court Division most illegally made the Rule absolute and reversed the judgment and decree passed by the trial as well as the lower appellate court decreeing the suit without considering the facts, circumstances and evidence on record and totally misdirecting himself in passing the impugned judgment in violation of Rule 78 of K.D.A.

8. Admittedly the land in question was acquired as per L.A. Case No. 2A/1965-66 and it vested in the Government free from all encumbrances.

9. It appears that the petitioner himself applied for allotment of a plot acknowledging the ownership of the Government and therefore he cannot question the title of the Government and pray for a decree as prayed for.

10. It further appears that once the land is vested in the Government the original owner cannot get back the land only because the land remained unutilized. Section 78 of the K.D.A. is of no avail to the petitioners,
The respondent being the owner has the discretion to allow or reject the application of the petitioner.

We find no merit in this petition which is accordingly dismissed.
Ed.

Sheikh Afil Uddin and another Vs. The Election Commission of Bangladesh, 4 LNJ (2015)

Case No: Writ Petition Nos. 328 and 329 of 2014

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Rafique-ul-Huq,Mr. M. K. Rahman,Mr. Sherder Abul Hossain,,

Citation: 4 LNJ (2015)

Case Year: 2015

Appellant: Sheikh Afil Uddin and another

Respondent: The Election Commission of Bangladesh

Subject: Election Commission , RPO,

Delivery Date: 2014-02-20

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

Mirza Hussain Haider, J
And
Muhammad Khurshid Alam Sarkar, J

Judgment on
20.02.2014

(1) Sheikh Afil Uddin
…Petitioner
(In W. P. No. 328 of 2014)
And
(2) Md. Monirul Islam
…Petitioner
(In W. P. No. 329 of 2014)
Versus
The Election Commission of Bangladesh.
. . . Respondents
(In Writ Petition Nos. 329 of 2014 and 329 of 2014)

Constitution of Bangladesh, 1972
Article 102(2)
The High Court Division in the fit and proper cases, for example, where an action taken or order passed by a Government or any statutory body or even any Constitutional body is exfacie illegal, malafide, or the same suffers from malice-in-law or quorum non-judice in carrying out its functions within administrative capacity, entertains writ petitions inspite of the existence of alternative forums. But the High Court Division does not usually interfere with an action or order of the said bodies when they act within judicial or quasi-judicial capacity and unless the said issues have been dealt with and adjudicated upon by the said judicial or quasi-judicial bodies themselves. . . . (15)

Constitution of Bangladesh, 1972
Article 102(2)
There is a fundamental difference between an action taken or the decision made by the government or any Constitutional or statutory body and the proceedings initiated or trial commenced by the said bodies; meaning that when any proceeding is pending before any judicial or quasi-judicial body, this Court is usually reluctant to interfere with the said proceedings save in a rare of the rarest case as this Court adheres to the long established age old principle that “a person cannot pursue two parallel remedies in respect of the same matter at the same time” inasmuch as it is the common law policy that when there is an availability of alternative remedy, the jurisdiction of the High Court Division should not be invoked directly, which has been enshrined in Article 102(2)(a) of our Constitution in the following words: “If satisfied that no other equally efficacious remedy provided by law.”...(16)

Constitution of Bangladesh, 1972
Article 102(2)
Subject to the ‘satisfaction’ of this Court, a writ petition may be entertained. It appears from the words employed in the said Article that ‘if satisfied’ strongly suggests that this ‘Special original jurisdiction’ of the High Court Division may be invoked only upon the satisfaction of the High Court Division as to the non-availability of the ‘other equally efficacious remedy’ (underlined for emphasize). In our view, the scrutiny as to the competency of invoking this ‘Special original jurisdiction’ is required to be made by this Court before issuance of any Rule, not by issuing of any Rule in view of the clear and unambiguous words of our Constitution ‘if satisfied.’. . . (19)

Constitution of Bangladesh, 1972
Article 102(2)
There are classifications in the alternative forum. Some forums are administrative appellate forum created by the ordinary statutory provisions and some forums are created under the mandate of the Constitution such as the Election Commission. The bottom line is that the High Court Division has always been reluctant to interfere with the functions of any Constitutional body unless the said Constitutional body transgresses its power and acts beyond its jurisdiction. ...(20)

Representation of People Order
(P.O. No. 155 of 1972)
Article 91E
A plain reading of article 91E it appears that the above provisions ousts the previous statements of the different provisions of the RPO as it ushers with the words “notwithstanding contained in this Order or rules”. Thus, one may take and interpret this article to be a special power of the Election Commission. . . . (21)

Constitution of Bangladesh, 1972
Article 102(2)
Representation of People Order
(P.O. No. 155 of 1972)
Article 91D
When this Court issues any show cause notice/Rule, be it wrongly, it is the usual practice of our Appellate Division not to interfere with it but to give direction upon the High Court Division to dispose of the same and, thus, Election Commission as a Constitutional body when performs its function within its quasi-judicial jurisdiction under article 91D of the RPO and issues any notice, the correctness or wrongness of issuance of the same may also be adjudicated upon by it. . . . (23)

Constitution of Bangladesh, 1972
Article 119
Representation of People Order
(P.O. No. 155 of 1972)
Articles 12(1)(D), 17, 19,, 39, 81, 91A, 91B, 91D, 91E
নির্বাচন কমিশন আচরন বিধিমালা, ২০০৮
বিধি ২(৬)
From our concurrent reading of Article 119 of our Constitution in tandem with articles 12(1)(D), 17, 19, 39, 81, 91A, 91B, 91D, 91E of RPO and Rule 2(6) of নির্বাচন কমিশন আচরণ বিধিমালা, ২০০৮ it appears that the Election Commission is amply empowered to take cognizance of any allegation brought by any person, including a candidate, an agent and the persons who are employed for conducting the election, and, thereby, take necessary action against any candidate during the time of election, including ordering for repoll. Thus, in view of the fact that the Election Commission has already initiated a proceeding, be it within the scope of RPO or under the misconception of any provisions of the said law, and since the petitioners already have explained their position before them and, further, before issuance of this writ petitions the Election Commission was in seisin of the matter, this Court is of the opinion that the Election Commission is in a convenient position to adjudicate upon the allegation brought against the petitioners. Accordingly, we are led to hold that these writ petitions are pre-nature as the impugned notices are being awaited to be disposed of by an apparently competent quasi-judicial body upon the hearing of the parties. However, in carrying out the above exercise, this Court would not delve into deciding the issue as to whether the actions of the Election Commission was legal or illegal and if we inadvertently fail to resist our temptation of expressing our views, it should be ignored. . . . (24, 25 and 27)

Representation of People Order
(P.O. No. 155 of 1972)
Article 19
The Election Commission after receiving return of the election from the Returning Officers under article 19(2) of the RPO should publish the Gazette Notification of the Returned Candidates at its earliest convenience given that taking the advantage of absence of the provisions in between clauses 1, 2 & 3 of article 19 as to any time period for publication of the Gazette Notification of the Returned Candidates, respondent no. 1 cannot make unreasonable delay in publication of the Gazette Notification. However, it would not be an unreasonable delay if the names of the uncontested candidates are published in the Gazette Notification together with all other candidates, be contested or uncontested candidates, at one time after holding the National Election in view of the fact that the said practice has been followed by the Election Commission of our country since its inception. . . . (29)

Representation of People Order
(P.O. No. 155 of 1972)
Article 19
Result was declared by the Returning Officer under article 19(1) and the Election Commission was duty bound to publish the result under article 19(3) where the word “shall” has been used, therefore, provisions laid down in a delegated legislation such as Code of Conduct, 2008, which has been framed under the authority of the RPO, cannot override the provisions of the RPO so as to catch the petitioner’s all activities took place after 13.12.3013 until publication of the Gazette Notification as the conducts of নির্বাচন পূর্ববর্তী সময় as defined in Code no. 2(6) of the Code of Conducts, 2008. . . . (34)

Representation of People Order
(P.O. No. 155 of 1972)
Article 12
Unless a person is convicted he shall not be disqualified to (i) be elected as a MP or (ii) to continue as a MP. . . . (38)

Representation of People Order
(P.O. No. 155 of 1972)
Article 89A
Except the members of the law enforcing agency, the officers responsible for conducting the election may be authorized by the Election Commission to take cognizance of the offence alleged and, thereby, conduct the trial of the said offence. . . . (39)

Representation of People Order
(P.O. No. 155 of 1972)
Article 91A
The Electoral Enquiry Committee is empowered to inquire into any offence under the RPO and upon carrying out the inquiry it can only make recommendation for Election Commission but the Committee does not possess any power to impose any fine or penalise any one. The Election Commission, then, can ask any person to implement the Committee’s recommendation. . . .(44)

Obitar Dicta
Incorporation of the definition of ‘নির্বাচন পূর্ব-সময়’ in the RPO could strengthen the position of the Election Commission in dealing with the incidents that take place from the date of announcement of the election schedule till the date of publication of the names of the returnted candidates in the Gazette Notification. . . . (46)

Marbury Vs. Madison 2 Law Edition, USSCR 135; AFM Shah Alam Vs. Mujibull Huq, 41 DLR (AD) 68; Mahmudul Haque (Md.) Vs. Md Hedayetullah and others, 48 DLR (AD) 128; AKM Mayeedul Islam Vs. Bangladesh Election Commission and others, 16 BLD (AD) 204; DR. Mohiuddin Khan Alamgir Vs. Bangladesh, 62 DLR (AD) 425; Altaf Hossain Vs. Abul Kashem, 45 DLR (AD) 53; Afzal Hossain Vs. Chief Election Commissioner, 45 DLR 255, Kunda S Kadam Vs. K K Soman, AIR (1980) SC 881; Srivastava KK Vs. Bhupendra Kumar Jain, (1977) 2 SCC 494; Sree Ramdas Motor Transport Ltd. Vs. Tadi Adhinarayana, (1997) 5 SCC 446; Punjab Vs. Punjab Fibres Ltd., (2005) 1 SCC 604 and ACC Vs. Enayetur Rahman, 64 DLR (AD) 14 ref.

Mr. Rafique-ul-Haque with
Mr. M Quamrul Haque Siddique,
Mr. AKM Alamgir Parvez,
Mr. Md. Bazlur Hasan,
Mr. Md. Ashiq-ul-Haque,
Mr. Md. Sayed jakir Hossain,
Ms. Sageda Sultana,
Mr. Partha Sarathi Mondal and
Ms. Shamima Akhter, Advocates,
....For the petitioners (In writ petition no. 328 of 2014 and 329 of 2014).

Mr. M.K. Rahman with
Mr. Tawhidul Islam and
Mr. Sanian Rahman, Advocates,
. . . For respondent no. 1 (In both the writ petitions)

Mr. Sherder Abul Hossain, Advocate,
. . . For respondent No. 2 (In both the writ petitions)

Writ Petition Nos. 328 and 329 of 2014

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:

Since both the writ petitions involve same law points and the facts of these two writ petitions being almost similar having been originated from a single incident took place during the 10^th National Parliamentary Election, they are taken up together for hearing and disposed of by this single judgment.

In writ petition no. 328 of 2014 the facts of the case, succinctly, as stated in the writ petition, are that when the Election Commission declared schedule for 10^th Parliamentary General Election, the petitioner (hereinafter referred to as Mr. Sheik Afil-Uddin) as a candidate of Bangladesh Awami League submitted his nomination paper for constituency no. 85, Jessore-1. At the phase of scrutiny on 13.12.2013, since there was no other contesting candidate, the Returning Officer under his seal and signature declared Mr. Sheikh Afil-Uddin as the Returned Candidate for the said constituency no. 85, Jessore-1 by a public notice under article 19(1) of the Representation of the People Order, 1972 (hereinafter referred to as RPO) when the copy of the same was supplied to Mr. Sheikh Afil-Uddin by the Returning Officer and, that is how, Mr. Sheikh Afil-Uddin was elected as an MP and he was merely waiting to get his name published in the Gazette Notification. On 01.01.2014 one Md. Shahin-Ul-Kabir, the election agent of a candidate against the Awami League nominated candidate for another seat namely constituency no. 86 of Jessore-2 lodged a complaint to the Election Commission alleging that Mr. Sheikh Afil-Uddin has committed offences under the RPO as he conspired with the workers and supporters of the Awami League uttering that he shall ensure the victory of Mr. Monirul Islam (petitioner in writ petition No. 329 of 2014) by any means by engaging at least 100 workers in various polling stations to cast as much vote as required for the victory of the said Awami League candidate Mr. Monirul Islam, which was published in the several news papers of the country. Pursuant to lodging the aforesaid complaint, the Election Commission formed an Electoral Inquiry Committee who, upon carrying out the inquiry, found the allegation to be true. After holding the National Election on 05.01.2014 in whole of the country the Election Commission, on 07.01.2014, issued a notice upon Mr. Sheikh Afil-Uddin directing him to show cause as to why his candidature shall not be cancelled for the allegation brought against him by the said Mr. Shahin-Ul-Kabir. On 15.01.2014 Mr. Sheikh Afil-Uddin replied to the show cause notice denying the charges and explaining his position contending, inter alia, that he was declared a Returned Candidate by the Returning Officer on 13.12.2013 as an uncontested candidate and as a worker of Awami League he had been to Jessore-2 constituency to lend political support to Mr. Monirul Islam, the candidate of Awami League for the said constituency, but he never did anything which comes within the purview of election offence or corrupt practice or vote rigging and, in fact, on 05.01.2014 on the date of election there was no vote rigging or corrupt practice and no election offence took place therein or there was no other allegation in the election of Jessore-2 constituency. It was stated that out of enmity with Mr. Sheikh Afil-Uddin, the opposition candidate against Mr. Monirul Islam with an ill motive created a fake C.D in the name of Mr. Sheikh Afil-Uddin. It is further stated that the Electoral Enquiry Committee did not hold any enquiry in presence or within the knowledge of Mr. Sheikh Afil-Uddin and he was not given any opportunity to defend himself. Thereafter, when on 08.01.2014 the Election Commission published the result of the 10^th National Parliamentary Election held on 05.01.2014 in the official Gazette, the name of Mr. Sheikh Afil-Uddin was not included in the said official Gazette dated 08.01.2014. In the aforestated premises, Mr. Sheikh Afil-Uddin being aggrieved by the said action of the Election Commission approached this Court as a petitioner and obtained the instant Rule.

In writ petition no. 329 of 2014 the stated facts of the case, briefly, are that the petitioner (Mr. Monirul Islam), having been nominated by the Bangladesh Awami League as a candidate in the 10^th National Parliamentary Election, submitted his nomination paper for constituency no. 86 of Jessore-2 and, at the stage of scrutiny, his nomination paper was found to be valid and after the withdrawal of the nomination papers of other 2 contesting candidates, there were only 2 contesting candidates namely, Mr. Monirul Islam (the petitioner) and Mr. Rafiqul Islam (the added respondent no. 2). On 05.01.2014 polling took place at all the 72 polling centers and, after free, fair and peaceful and uncorrupted casting of votes in all the pooling centers, counting of the votes was completed peacefully by the Presiding Officers of all the polling centers and upon signing their respective result sheets they handed over the same to the Returning Officer and after receiving all the result sheets of all the polling centers the Returning Officer consolidated the result and having found Mr. Monirul Islam with the highest number of votes, on 06.01.2014 the former under his seal and signature declared the latter as a Returned Candidate by a public notice under Article 39(1) of the RPO. Meanwhile, one Mr. Shahin-Ul-Kabir, an election agent of respondent no. 2 (opposition candidate against him), lodged complaint on 01.01.2014 alleging that on 30.12.2013 Mr. Sheikh Afil Uddin made a promise to the Bangladesh Awami League supporters and workers that he shall do everything for the victory of Mr. Monirul Islam by engaging 100 workers at different polling stations, which was published in the several news papers of the country. On an enquiry the Electoral Enquiry Committee found the allegation to be true. Thereafter, on 07.01.2014 the Election Commission issued the impugned notice upon Mr. Monirul Islam directing him to show cause as to why his candidature shall not be declared illegal for the allegation brought against him by one Md. Shahin-Ul-Kabir. Pursuant to the said show cause notice Mr. Monirul Islam replied on 15.02.2014 denying the charges against him and explained his position. He stated in the said reply that Mr. Sheikh Afil Uddin visited his constituency as a leader of the Awami League to lend support to him but he never got involved in any corrupt practice and, most importantly, no offence of vote rigging or any corrupt practice took place on the date of national election in this constituency. The allegation brought against him and Mr. Sheikh Afil Uddin is nothing but a sheer conspiracy against them. The Election Commission, then, on 08.01.2014 published the result of the 10^th National Parliamentary Election held on 05.01.2014 vide publication of the Gazette Notification when the name of Mr. Monirul Islam was not included in the said Official Gazette and having not found his name in the official Gazette Mr. Monirul Islam approached this Court as the petitioner and obtained this Rule.

In both the writ petitions the Election Commission (respondent no.1) and Mr. Rafiqul Islam (added respondent no. 2) who is the contesting candidate against Mr. Monirul Islam entered their appearances by filing separate sets of affidavits-in-opposition. In the affidavit-in-opposition filed by respondent no. 1, it is stated that when respondent no. 1 declared the schedule of the 10^th Parliamentary Election in all parliamentary constituencies of the country as per the provisions of RPO, it appointed the Returning Officers and the Assistant Returning Officers for the said election throughout the country. In writ petition no. 328 of 2014 Mr. Sheikh Afil-Uddin was found to be the sole candidate in the constituency no. 85 of Jessore-1and since there was no other candidate in the said constituency the relevant Returning Officer after his scrutiny on 13.12.2013 declared him as the ‘Returned Candidate’ for the said constituency vide public notice dated 13.12.2013. When one Md. Shahin-Ul-Kabir lodged a complaint to respondent no. 1 on 01.01.2014 bringing some allegation against Mr. Sheikh Afil-Uddin that he has committed offence under RPO as he openly declared that the victory of Mr. Monirul Islam shall be ensured by hook or crook engaging 100 workers at the different polling stations, the said allegations was enquired into by the Electoral Enquiry Committee who submitted its report on 03.01.2014 confirming the veracity of the said election and found violation of the Code of Conduct by Mr. Sheikh Afil-Uddin. Then, respondent no. 1 issued a show cause notice upon both the writ petitioners Mr. Sheikh Afil-Uddin and Mr. Monirul Islam on 07.01.2014 asking them to show cause as to why their candidatures shall not be cancelled and both of them on 15.01.2014 replied to the said show cause notices. Respondent no. 1 after receiving the said replies from both the writ petitioners decided to afford personal hearing to both of them and issued letters to them on 21.01.2014 fixing 27.01.2014 as the date for personal hearing. While the matter was pending before respondent no. 1 who was about to dispose of the same, both the writ petitioners filed the present writ petitions seeking a direction upon respondent no. 1 to publish their respective results of the Parliamentary Election in the Official Gazette. Respondent no.1, on 27.01.2014, under the compelling circumstances decided to postpone the personal hearing of both the writ petitioners as the High Court Division was in seisin of the matters.

Respondent no. 2 by filing a separate affidavit-in-opposition stated that both the writ petitions have been filed by suppressing some relevant facts necessary for disposal of this writ petitions; such as, both the writ petitioners appeared before the Electoral Enquiry Committee and made their respective representations therein but in their writ petitions they have totally denied the aforesaid facts. It is stated that after registering the complaint by respondent no. 2 with respondent no. 1, steps were taken to enquire into the matter and Election Enquiry Committee was formed to adjudicate upon the complaint but due to seeking adjournment by both the petitioners, there was no final resolution before the election held on 05.01.2014. It is stated that both the writ petitioners are, in fact, attempting to bypass the consequence of the offence committed by them by filing these writ petitions. The rest of the statements made by this respondent are mere repetition of the statements made by the respondent no. 1 in its affidavit-in-opposition.

Mr. Rafique-ul-Haque, along with Mr. M. Kamrul Haque Siddique, the learned advocates, appeared for both the writ petitioners. However, Mr. Haque inspired Mr. Siddique to take the lead role in making submissions before this Court. At the very outset of placing the petitioners’ cases, Mr. Siddique refers to annexure-A to both the writ petition and submits that these are public notices published by the Returning Officers and these public notices can be published only by the Returning Officers, as per the provisions of RPO, not by the Election Commission or any other authority. Mr. Siddique submits that the Returning Officers for Parliamentary Election are appointed by respondent no. 1 but in performing their functions and exercising their power, they are independent entity and respondent no. 1 cannot dictate them to refrain from publishing the said public notice once the election is held peacefully without any allegation of vote rigging or other corrupt practice and, more importantly, after publication of the aforesaid public notice by the Returning Officer, respondent no. 1 does not have any authority to withhold publication of the Gazette Notification as per the provisions of article 19(1), 19(2) and 19(3) of the RPO as the aforesaid law contemplate that after the election is held uncontested the result is to be declared by the Returning Officer and after the declaration of the result by the Returning Officer, respondent no. 1 has no option but to publish the Gazette Notification. By placing the provisions of article 39(1), 39(2), 39(3) and 39(4) of the RPO Mr. Siddique submits that respondent no. 1 after the Returning Officer’s declaration under article 39(1) of the RPO must complete the formality of the publication of the Gazette Notification as quickly as possible without making any delay; otherwise their failure may result in rendering the spirit of our Constitution and scheme of the RPO nugatory. In an endeavour to substantiate his arguments he submits that respondent no. 1 is duty bound to take next step as envisaged in articles 19 (3) and 39(3) after completion of the tasks under articles 19(1) & 19(2) and articles 39(1) & 39(2) as respondent no. 1 being a Constitutional body cannot behave like a natural person as per its whims and wishes, rather it is obliged to act in accordance with the provisions of the law as enshrined in the RPO and the Rules framed thereunder. In a bid to augment his deliberation on this point Mr. Siddique refers to the celebrated case of Marbury Vs. Madison reported in 2 Law Edition USSCR 135 and submits that once the Returning Officer has declared the result by publication of public notice, the publication of Gazette Notification by respondent no. 1 remains to be observed as a mere formality. He places Article 72(2) and 148 of the Constitution and submits that the above Constitutional provisions have been made nugatory by not publishing the names of the petitioners in the Gazette Notification within thirty days from 08.01.2014 when the names of all other candidates having been declared Returned under articles 19(1)&39(1) were published in the Gazette Notification. Then, he refers to annexure-B to the writ petition and questions the jurisdiction and power of respondent no. 1 in proceeding with the complaints as he claims that the petitioners are the Returned Candidates in the eye of law and the 10^th Parliamentary Election having been completed Election Tribunal has already been set up and, thus, the matter should be dealt with and adjudicated upon by the Election Tribunal only. In support of his submission on this point he refers to the cases of AFM Shah Alam Vs Mujibull Huq 41 DLR (AD) 68, Mahmudul Haque (Md.) Vs Md Hedayetullah and others 48 DLR (AD) 128, AKM Mayeedul Islam Vs Bangadesh Election Commission and others 16 BLD (AD) 204 and DR. Mohiuddin Khan Alamgir Vs Bangladesh 62 DLR (AD) 425. He further submits that interpretation of several articles of the RPO is required for fair disposal of the allegations brought against the petitioners and, therefore, this Court being the only competent authority to interpret the law, the matters are beyond the jurisdiction of the Election Commission. He finally submits that the petitioners are happy and willing to face the proceedings pending before respondent no. 1 having been arisen out of the complaint lodged by respondent no. 2 but respondent no.1 cannot withhold the publication of Gazette Notification on the plea of pendency of that proceeding inasmuch as they are now elected MPs of the 10^th Parliament and, thus, if the outcome of the proceedings pending before respondent no. 1 goes against the petitioners towards acquiring a disqualification to remain as an MP under Article 66 of our Constitution, it may be notified to the Hon’ble Speaker who will then proceed in accordance with the relevant provisions of the Constitution and other relevant law. By making the aforerecorded submissions the learned advocate for the petitioners prays for making the Rule absolute.

Per contra, Mr. M.K. Rahman, the learned advocate, appearing for respondent no. 1, submits that that the Election Commission having been constituted under Article 118 of the Constitution is responsible to undertake the election related functions of the country as have been enumerated in Article 119. Mr. Rahman takes us through articles 12, 17, 81(1)(F), 91(A), 91(B), 91D, 91(E) & 92 of the RPO, Rule 8 & 27 of the নির্বাচন পরিচালনা বিধিমালা, ২০০৮ (hereinafter referred to as বিধিমালা, ২০০৮) and Code no. 2(6) of the নির্বাচনে রাজনৈতিক দল ও প্রার্থীর আচরণ বিধিমালা, ২০০৮ (hereinafter referred to as Code of Conducts, 2008) and submits that Election Commission is amply empowered to take any steps for ensuring free, fair and just election including conducting investigation as to any allegation of corrupt practice, violation of the Code of Conducts brought by any candidate, agent or anyone during the poll time and passing an order or direction for re-poll. By referring to annexure-B to the writ petition he submits that the Election Commission has rightly issued the notices as after carrying out the enquiry by the competent authority i.e. Electoral Enquiry Committee, which had found the allegations brought against the petitioners to be true, it was revealed that the conducts of both the writ petitioners do fall within the ambit of the provisions of article 81(1)(f) of the RPO and, thus, the Election Commission being duty bound under article 91E of the RPO to proceed further with the complaint, has issued the impugned notices to the petitioners. He emphasizes on the fact that when the petitioners replied to the said show cause notices they ought to have waited for the decision of the Election Commission and, as such, Mr. Rahman terms the action of the petitioners in filing these writ petitions to be pre-mature. He places the definition of ‘নির্বাচন পূর্ব সময়’ as provided in Code no. 2(6) of the Code of Conducts, 2008 and submits that the election time includes from the date of declaration of the schedule till publication of the Gazette Notification and the Election Commission, having not published the Gazette Notification for these two constituencies, is empowered to take any step including making enquiry into any allegation under article 91E of the RPO and, thereafter, ordering for re-poll therein under article 17 of the RPO in necessary. He submits that Rules 8 and 27 of the Rule, 2008 contemplate that the Returning Officer cannot make any declaration or issue public notice under article 19(1) or under 39(1) of the RPO without having written approval from the Election Commission. He finally submits that Section 21of the General Clauses Act, 1897 empowers the Election Commission to amend, vary or even rescind those public notices inasmuch as no vested right has been accrued by the petitioners before the election results of the petitioners reach to its finality by publication of the Gazette Notification.

Mr. Sharder Abul Hossain, the learned advocate appearing for respondent no. 2, in addition to adopting the submissions advanced by the learned advocate for respondent no. 1, adds that the Election Commission should be allowed to proceed with the proceedings pending before it having been culminated from the inquiry of the Electoral Enquiry Committee which had found the veracity of the allegation brought by this respondent and the said proceedings would succumb to unnatural death if this Court interferes with it at this juncture. In corroboration of his submissions he refers to the cases of Altaf Hossain Vs Abul Kashem 45 DLR (AD) 53 and Afzal Hossain VS Chief Election Commissioner 45 DLR 255 and submits that the Election Commission has the plenary power to act under Article 119 which is the reservoir of power for it to ensure fair election. By making the aforerecorded submissions, the learned advocate for the respondents pray for discharging both the Rules with costs.

We have heard the learned advocates for both the sides, perused the writ petitions as well as affidavits-in-opposition together with the annexures appended thereto and the relevant laws and decisions placed before us and we have considered them very carefully.

The moot questions for consideration by this Court are whether the Election Commission has the power and jurisdiction to issue the impugned notices. In other words, this Court is to examine as to whether the impugned notices have been issued in accordance with the provisions of our Constitution and the RPO. Further, to examine as to whether the present writ petitions are pre-mature having the consequence thereto of being not maintainable when the Election Commission was in seisin of the matter.

Since the issue of maintainability of the writ petition on the ground of being pre-mature has been raised, the same may be taken up first for consideration and adjudication. It is an admitted position that Election Commission is in seisin of the matters. When the Election Commission issued annexure-B to both the writ petitioners asking them to show cause as to why their respective candidatures of 10^th Parliamentary Election shall not be cancelled under Article 91E of the RPO accusing the petitioners for committing offences under article 81(1)(f) of the RPO within 10 days from the date of receiving of their respective notices and, in compliance thereto, both the writ petitioners vide annexure-C to the writ petitions furnished their explanations in details within the stipulated time with the following prayers:

“পরিশেষে আমার সবিনয় নিবেদন এই যে, মিথ্যা অভিযোগের দায় থেকে অব্যহতি দিয়ে আমাকে বাধিত করবেনz এই জবাবে লিখিত বক্তব্য এবং ঘটনা সম্পর্কিত অামার বক্তব্য সমূহের সমর্থনে আমি নিজে ব্যক্তিগত শুনানী করতে চাই এবং আইনের ব্যাখ্যা বিশ্লেষন সংশ্লিষ্ট বিষয়ে আইনজীবির মাধ্যমে শুনানীর সুযোগ দেওয়ার জন্য আবেদন করছি”

After receiving the said replies from the petitioners, the Election Commission fixed 27.01.2014 as the date for hearing of the complaints towards disposal of the same as per the requests made in the writ petitioners’ reply to give an opportunity for personal hearing. However, on the above day of hearing, the Election Commission suo-muto stayed the proceedings pending before them by the order appended as annexure-4 to the affidavit-in-opposition which may be quoted here under-

“দেখিলাম অদ্য যশোর-১ আসনের ও যশোর-২ আসনের প্রার্থীদ্বয়ের বিরুদ্ধে নির্বাচনী আচরণ বিধি ভঙ্গের অভিযোগে তাহাদের ব্যক্তিগত শুনানির জন্য ধার্য্য রহিয়াছেz ইতিমধ্যে উভয় প্রার্থী মাননীয় সুপ্রীম কোর্টের হাইকোর্ট বিভাগে দুইটি রীট পিটিশন করিলে মাননীয় হাইকোর্ট হইতে রুল ইস্যু করা সম্বলিত নোটিশ পাওয়া গিয়াছেz এমতাবসÛায় শুনানির বিষয়টি মাননীয় উচ্চ আদালতে বিচারাধীন বিধায় ব্যক্তিগত শুনানির কার্য্যত্র্ম সÛগিত করা হইল মাননীয় উচ্চ আদালতের আদেশ সাপেক্ষে পরবর্তী ব্যবসগ্রহণ করা হইবে ”

From a close reading of the aforegoing order dated 27.01.2014 passed by the Election Commission, it appears that due to pendency of these writ petitions, the Election Commission decided to suo-muto stay the proceedings arisen out of annexure-B to both the writ petitions until they receive any direction from this Court.

From the chronology of events of these cases it transpires that annexure-B to the writ petitions were issued on 07.01.2014 and the petitioners of both this writ petitions replied thereto on 15.01.2014 and the instant writ petitions were filed on 10.02.2014. Thus, it is evident that both these writ petitions were filed after the petitioners submitted themselves to the jurisdiction of the Election Commission. Mr. Kamrul Haque Siddique put his best effort to cover-up this point by referring to the last line of paragraph no. 5 of the replies to the show cause notices (annexure-C to both the writ petitions) which runs as follows: “আমি গেজেট বিজ্ঞপ্তি প্রকাশের দাবিতে অতি সত্তর মাননীয় হাইকোর্ট বিভাগে রীট মামলা দায়ের করার পরামর্শ প্রাপ্ত হয়েছি”. In his bid to justify the filings of these writ petitions before this Court he submits that the petitioners, by replying to the show cause notices, had merely complied with the directions given by the Election Commission in annexure-B but they had informed the Election Commission that they are in the process of invoking writ jurisdiction against the actions of the Election Commission for non-inclusion of their names in the Gazette Notification dated 08.01.2014, which published for the purpose of according official recognition to all of the ‘Returned Candidates’ as Member of Parliaments of the 10^th National Parliament. The above submissions advanced by the learned advocate Mr. Siddique could hardly persuade this Court inasmuch as from the prayer portion of the annexure-4 to the affidavit-in-opposition submitted by respondent no. 1 any one with ordinary prudence would come to a conclusion that the petitioners have totally surrendered themselves to the jurisdiction of the Election Commission for the disposal of the complaints.

The main ground for filing these writ petitions, as advanced in extensio by the learned advocate for the petitioner, is that since the Election Commission lacks jurisdiction to issue the impugned notices (annexure-B to both the writ petitions) there is a long line of decisions of our Apex Court that the High Court Division is well empowered to entertain writ petitions. True that the High Court Division in the fit and proper cases, for example, where an action taken or order passed by a Government or any statutory body or even any Constitutional body is exfacie illegal, malafide, or the same suffers from malice-in-law or quorum non-judice in carrying out its functions within administrative capacity, entertains writ petitions inspite of the existence of alternative forums. But the High Court Division does not usually interfere with an action or order of the said bodies when they act within judicial or quasi-judicial capacity and unless the said issues have been dealt with and adjudicated upon by the said judicial or quasi-judicial bodies themselves. Here, these cases have been filed against the actions taken by a quasi-judicial body performing its duty under article 91D of the RPO, which runs as follows:

Article 91D (1) The Commission, while making an enquiry under any provision of this Order, shall have, for the purposes of such enquiry, all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document or other material object producible as evidence;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or any copy thereof from any Court or office;
(e) issuing commission for examination of witnesses or documents.
(2) Any proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Penal Code (XLV) of 1860).
(3) The Commission shall be deemed to be a civil Court within the meaning of sections 476, 480, and 482 of the Code of Criminal Procedure, 1898 (V of 1898).
(4) The Commission shall have the power to regulate its own procedure.
(5) Any person holding an enquiry under any provision of this Order, under the authority or direction of the Commission shall have the same powers as are vested in the Commission under these Articles.]

However, when judicial or quasi-judicial body makes a decision upon hearing the parties, the High Court Division is competent to examine the legality or propriety of the said decision in the capacity of entertaining a writ of certiorari. So, there is a fundamental difference between an action taken or the decision made by the government or any Constitutional or statutory body and the proceedings initiated or trial commenced by the said bodies; meaning that when any proceeding is pending before any judicial or quasi-judicial body, this Court is usually reluctant to interfere with the said proceedings save in a rare of the rarest case as this Court adheres to the long established age old principle that “a person cannot pursue two parallel remedies in respect of the same matter at the same time” inasmuch as it is the common law policy that when there is an availability of alternative remedy, the jurisdiction of the High Court Division should not be ivoked directly, which has been enshrined in Article 102(2)(a) of our Constitution in the following words: “If satisfied that no other equally efficacious remedy provided by law”. Some celebrated cases may be referred to augment our foregoing view.

In the case of Kunda S Kadam vs K K Soman AIR (1980) SC 881, an in-service employee of Bombay Municipal Corporation applied for the post of Corporation with the recommendation of the Public-Service Commission. While the name was under consideration by the Bombay Municipal Corporation for appointment a writ petition was filed by respondent nos. 1 and 2 challenging the recommendation itself on the ground that the applicant did not fulfill the required statutory qualifications. Bombay High Court took the view that the applicant did not possess one of the qualifications required for appointment and quashed the recommendation. Supreme Court set aside the judgment of the High Court”. In the case of Srivastava KK vs Bhupendra Kumar Jain, (1977) 2 SCC 494, validity of the election of Madhya Pradesh Bar Council was challenged before the Election Tribunal. During pendency of the trial the petitioner approached the High Court under Article 226 of the Constitution and obtained an order. Supreme Court set aside the decision with the observation, inter alia, that when election petition covering the same subject-matter was actually pending, the High Court should not have entertained the petition. The Supreme Court described the interference as miss-exercise of the power of judicial review. In the case of Sree Ramdas Motor Transport Ltd. vs Tadi Adhinarayana, (1997) 5 SCC 446, a petition under sections 397 and 398 of the Companies Act alleging oppression of minority shareholders and mismanagement of the company affairs was filed in the Company Law Board. During pendency of the application a petition under Article 226 of the Constitution was filed seeking direction to the Central Government to investigate into the allegations against management by the CBI. High Court issued direction as prayed for. Supreme Court set aside the direction and observed that where statutory remedies were available and the matter was pending the High Court ought not to have passed the order. In the State of Punjab vs Punjab Fibres Ltd. (2005) 1 SCC 604, an assessee challenged the assessment before the Sales Tax Tribunal and the appeal was pending. During pendency of the appeal the assessee filed petition under Article 226 of the Constitution. Supreme Court held that the petition would not lie.

In our jurisdiction as well, in a series of decisions our Apex disapproved invocation of writ jurisdiction by circumventing the alternative forum. In a recent case, ACC Vs Enayetur Rahman, 64 DLR (AD) 14, when the ACC filed charge-sheet against the petitioner he invoked the writ jurisdiction for quashing the criminal proceedings and the High Court Division quashed the proceeding but the Appellate Division set aside the verdict on the ground that the High Court Division should not have entertained the writ petition when there is an alternative forum.

It appears that the petitioner has invoked the ‘Special Original Jurisdiction’ of this Court, apparently, under Article 102(2)(a)(ii) of our Constitution. Jurisdiction under Article 102(2), as a whole, is known as an extraordinary jurisdiction and the same is to be availed of only when there is ‘no other equally efficacious remedy’ available. The framers of the Constitution have intended that the people, at first, must search for and approach an appropriate legal forum other than the Constitutional Court. It is only then the Constitutional Court should be availed of when the citizen will find that the state has not created any legal forum for them for vindication of their right and get the aspired remedy. Thereafter, subject to the ‘satisfaction’ of this Court, a writ petition may be entertained. Article 102(2) of our Constitution may be quoted in this context. ‘The High Court Division may, if satisfied that no other equally efficacious remedy is provided in law......’. It appears from the words employed in the said Article that ‘if satisfied’ strongly suggests that this ‘Special original jurisdiction’ of the High Court Division may be invoked only upon the satisfaction of the High Court Division as to the non-availability of the ‘other equally efficacious remedy’ (underlined for emphasize). In our view, the scrutiny as to the competency of invoking this ‘Special original jurisdiction’ is required to be made by this Court before issuance of any Rule, not by issuing of any Rule in view of the clear and unambiguous words of our Constitution ‘if satisfied’.

On top of it, there are classifications in the alternative forum. Some forums are administrative appellate forum created by the ordinary statutory provisions and some forums are created under the mandatory of the Constitution such as the Election Commission. The bottom line is that the High Court Division has always been reluctant to interfere with the functions of any Constitutional body unless the said Constitutional body transgresses its power and acts beyond its jurisdiction. In these cases at hand, the Election Commission being a Constitutional body has issued the impugned notices under the power entrusted upon it by article 91E, which runs as follows:

Article 91E ²⁰⁵[91E. (1) Notwithstanding anything contained in this Order or rules, if it appears to the Commission on receiving an information from any source or written report that, any contesting candidate or his agent or any other person on his behalf, by his order or under his direct or indirect consent, engages or attempts to engage in any serious illegal activity or violates or attempts to violate any provision of this Order or rules or Code of Conduct for which he may be disqualified to be elected as a member the Commission may pass an order for an investigation of the matter giving the contesting candidate a reasonable opportunity of being heard.
(2) After receiving the investigation report under clause (1), if the Commission is satisfied that, the report was true, the Commission may, by a written order, cancel the candidature of such candidate and in that event the election shall be held among the other contesting candidates of the concerned constituency; and where only one person remains as a contesting candidate because of cancellation of candidature of the other contesting candidate, election shall be held under Article 17 for that constituency.
(3) Any order made under clause (2) shall be sent to the concerned candidate or his election agent by hand or by fax or by e-mail or by courier service or by any other possible means.
(4) The order made under clause (2) shall immediately be sent to the Returning Officer, Presiding Officer and other contesting candidates and the political party that has nominated such candidate.
(5) The order made under clause (2) shall be notified in the Official Gazette and in any other manner which the commission thinks fit.]

From a plain reading of article 91E it appears that the above provisions ousts the previous statements of the different provisions of the RPO as it ushers with the words “notwithstanding contained in this Order or rules”. Thus, one may take and interpret this article to be a special power of the Election Commission.

Thus, the Election Commission apparently has invoked the power given to it by article 91E and if there is a wrong assumption of power by the Election Commission, it also may be agitated by the petitioners before the Election Commission.

When this Court issues any show cause notice/Rule, be it wrongly, it is the usual practice of our Appellate Division not to interfere with it but to give direction upon the High Court Division to dispose of the same and, thus, Election Commission as a Constitutional body when performs its function within its quasi-judicial jurisdiction under article 91D of the RPO and issues any notice, the correctness or wrongness of issuance of the same may also be adjudicated upon by it. The submissions of Mr. Siddique as to incompetency of the Election Commission to interpret some provisions of the RPO appear to us to be irrelevant given that the Election Commission is not required to interprete any provisions of the RPO, rather the said body in performing its functions in the capacity of a quasi-judicial body would seek to apply the relevant provisions of the RPO construing the ordinary meaning thereof and, thereafter, to relate those provisions to the facts of these cases.

From our concurrent reading of Article 119 of our Constitution in tandem with articles 12(1)(D), 17, 19, 39, 81, 91A, 91B, 91D, 91E of RPO and Rule 2(6) of নির্বাচন কমিশন আচরণ বিধিমালা, ২০০৮ it appears that the Election Commission is amply empowered to take cognizance of any allegation brought by any person, including a candidate, an agent and the persons who are employed for conducting the election, and, thereby, take necessary action against any candidate during the time of election, including ordering for repoll. The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other depending on the circumstances.

Thus, in view of the fact that the Election Commission has already initiated a proceeding, be it within the scope of RPO or under the misconception of any provisions of the said law, and since the petitioners already have explained their position before them and, further, before issuance of this writ petitions the Election Commission was in seisin of the matter, this Court is of the opinion that the Election Commission is in a convenient position to adjudicate upon the allegation brought against the petitioners. Accordingly, we are led to hold that these writ petitions are pre-nature as the impugned notices are being awaited to be disposed of by an apparently competent quasi-judicial body upon the hearing of the parties.

Should, now, this Court take up the other issues, including the legality of the impugned notices, for examination as it has already held that the writ petitions are pre-mature.

Usually, this Court does not fancy to embark upon dealing with factual issues of a case, where the question of maintainability is an issue for adjudication as in the event of discharging the Rule on the count of maintainability, the examination of other points or factual issues become redundant. However, for the sake of expeditious disposal of the matters pending before the Election Commission and for the convenience of the parties of these cases, we wish to discuss the annexures-A, B & C to both the writ petitions alongside the powers given to the Election Commission for publication of the result or withholding the same in tandem with its power to arrest the persons accused for committing offences under the RPO or the Code of Conducts, 2008 during poll time and also the powers to inquire into the allegations brought against any candidate or any other person and thereafter penalize the culprits by carrying out the scrutiny of the actions of the Election Commission, Returning Officer and the Electoral Enquiry Committee. However, in carrying out the above exercise, this Court would not delve into deciding the issue as to whether the actions of the Election Commission was legal or illegal and if we inadvertently fail to resist our temptation of expressing our views, it should be ignored.

We may first take up the public notices circulated by the Returning Officers on 13.12.12 for Mr. Sheik Afiluddin and on 06.01.2014 for Mr. Monirul Islam under articles 19(1) & 39(1) of the RPO respectively (annexure-A to both the writ petitions). From the chronology of events and facts, as stated in the writ petition no. 328 of 2014, it appears that Mr. Sheikh Afil-Uddin was declared to be the Returned Candidate on 13.12.2013 by the Returning Officer vide circulation of the public notice under his seal and signature under article 19(1) of the RPO as there was no contesting candidate for the said constituency. Thereafter, the Returning Officer also performed his duty under article 19(2) by sending the ‘return’ of the election for Mr. Sheikh Afil-Uddin’s constituency and while, as per the provisions of article 19(3) of the RPO, respondent no. 1, though was supposed to publish the Gazette Notification, it decided not to publish his name and, instead, initiated proceedings against him which prompted Mr. Sheikh Afil-Uddin to approach this Court. We may profitably relate the above facts by looking at the provisions of article 19 of the RPO, which runs as follows:

Article 19 (1) Where, after scrutiny under Article 14, only one person remains as a validly nominated candidate for election as a member from a constituency or where after withdrawal under Article 16 only one person is left as a contesting candidate, the Returning Officer shall, by public notice, declare such candidate to be elected to the seat:
provided that if after scrutiny any candidate indicates that he intends to make an appeal under clause (5) of Article 14 against the rejection of his nomination paper, no person shall be declared elected uncontested until the period prescribed for filling such appeal has expired and no such appeal has been filed or, where an appeal is filed, until the disposal of such appeal.
(2) The Returning Officer shall submit to the Commission a return of the election in respect of which he has made a declaration under clause(1).
(3) The Commission shall publish in the official Gazette the name of the returned candidate.

From a plain reading of article 19(1) in tandem with 19(2) & 19(3), it appears that the law is silent about the time period for publication of the Gazette Notification of a candidate who has been declared elected as an uncontested candidate. It is the understanding of this Court from a concurrent reading of the clauses 1, 2 & 3 of article 19 of the RPO that the Election Commission after receiving return of the election from the Returning Officers under article 19(2) of the RPO should publish the Gazette Notification of the Returned Candidates at its earliest convenience given that taking the advantage of absence of the provisions in between clauses 1, 2 & 3 of article 19 as to any time period for publication of the Gazette Notification of the Returned Candidates, respondent no. 1 cannot make unreasonable delay in publication of the Gazette Notification. However, it would not be an unreasonable delay if the names of the uncontested candidates are published in the Gazette Notification together with all other candidates, be contested or uncontested candidates, at one time after holding the National Election in view of the fact that the said practice has been followed by the Election Commission of our country since its inception. It is not the case of Mr. Sheikh Afil Uddin (the petitioner in writ petition no. 328 of 2014) that before holding the Parliamentary Election on 05.01.2014 the name of another uncontested candidate of other constituency, after being declared as Returned Candidate by the Returning Officer, was published in the Gazette Notification but his name was not published. So, had his name been published with the names of other candidates on 08.02.2014 in the Gazette Notification there would have been no unreasonable delay or violation of any provisions of the RPO or discrimination against Mr. Sheikh Afil-Uddin by the Election Commission. As the Election Commission refrained from publication of Mr. Sheikh Afil-Uddin’s name in the Gazette Notification, he is now before this Court with a complaint of violation of article 19(3) of the RPO against the Election Commission. We now resist ourselves from expressing our mind as to whether there has been any violation of the provisions laid down in article 19(3) of the RPO by the Election Commission by not publication of the Gazette Notification for Mr. Sheikh Afil Uddin.

On the other hand, from the stated facts of writ petition no. 329 of 2014, it appears that Mr. Monirul Islam was declared as the Returned Candidate for the constituency no. 86, Jessore-2 by the Returning Officer on 06.01.2014 under article 39(1) of the RPO after the election was contested with respondent no. 2 and there was no allegation of vote rigging, corrupt practice or capturing any polling station or polling booth on the poll date on 05.01.2014. The alleged offence of connivance or conspiracy to have been committed by Mr. Sheikh Afil Uddin was taken place on 30.12.2014 and, thus, not on the poll date on 05.01.2014 and, further, the said allegation is not against Mr. Monirul Islam and the Electoral Enquiry Committee also did not find anything against Mr. Monirul Islam. So, given the above scenario it is to see whether respondent no. 1 was empowered to withhold the publication of Mr. Monirul Islam’s name in the Gazette Notification. In order to deal with the scenario, let us look at the provisions of article 39 of the RPO, which runs as follows:

Article 39 (1) The Returning Officer shall, after obtaining the result of the count under Article 37 or of the drawal of the lot under Article 38, declare by public notice the contesting candidate who has or is deemed to have received the highest number of votes to be elected.
(2) The public notice shall contain the name of, and the total number of votes received by, each contesting candidate as a result of consolidation under Article 37 or drawal of lot under Article 38.
(3) The Returning Officer shall, immediately after publication of the notice under clause (1), submit to the Commission a return of the election in the prescribed form together with a copy of the consolidated statement.
(4) The Commission shall publish in the official Gazette the name of the returned candidate.

From the perusal of clauses 1-4 of article 39 and clauses 1-3 of article 19 of the RPO, it is the understanding of this Court that, in the absence of any negative findings against Mr. Monirul Islam by the Electoral Enquiry Committee, as soon as the General Election was held and the Returning Officer declared his name as the Returned Candidate by circulation of the public notice on 06.01.2014 under article 39(1) of the RPO, the Election Commission was duty bound to publish his name in the Gazette Notification dated 08.01.2014 along with the names of other Returned Candidates throughout the country both under article 39(1) and under article 19(1) of the RPO. However, the above observation is not to be taken as this Court’s conclusionary view on the interpretation of the articles 19 & 39 of the RPO as we refrain from taking any views on the action of respondent no. 1 for now.

Let us now deal with annexure-B to both the writ petitions by which the Election Commission brought accusations of committing offence under article 81(1)(f) of the RPO against both the petitioners and, thereby, initiated proceedings against them under article 91E of the RPO aiming at cancellation of the polls under article 12(1)(D) of the RPO consequenting a repoll under Article 17 of the RPO. Let us look at the provisions of the above mentioned article 81(1)(f) of the RPO, which is as under:

“Except as provided in clause (2) a person is guilty of an offence punishable with rigorous imprisonment for a term which may extend to seven years and shall not be less than three years, and also with fine, if he-
(a)................................
(b).................................
(c).................................
(d)................................
(e)................................
(f) In the furtherance of the prospect of the election of a contesting candidate or to subvert election, captures, or abets or connives at, the capturing of, a polling station or polling booth-” (underlined by us)

From a plain reading of the said article it appears that if any one commits the offence of capturing, or abetting or conniving of capturing the polling station or polling booth either to favour any of the candidates or undermines the election, the said person may be imprisoned for a term of 7 (seven) years and the minimum period of which may be 3(three) years. Then, the next question becomes pertinent to examine as to whether the petitioners have already been found ‘guilty of the aforesaid offence’, the words employed in article 81(1) (f). Here, the purpose of the use of the word “guilty” is to be minutely examined as the legislature consciously avoided the use of the word “accused”.

In order to carry out the said scrutiny, let us look at the provisions of Articles 12(1)(d), 17, 91D & 91E. Among the said articles, 91E has already been quoted hereinbefore and from the concurrent reading of the clauses 1-5 of this article, it appears that the said clauses, as a whole, seek to provide us an understanding that the provisions of this article is meant and, thereby, applicable for pre-election offences or occurrences. Now, the question is whether the alleged offence of conniving to capture the polling station with the aid of 100 workers by Mr. Sheikh Afiluddin took place during pre-election period or post election period. If it is taken that the election of Mr. Sheikh Afil-Uddin has been completed on 13.12.2013 and his result ought to have been published in Gazette Notification before 30.12.2013, no question would have arisen for the Election Commission to issue annexure-B towards cancellation of his ‘candidature’, rather the Election Commission’s proceedings would have been aimed at making him disqualified to remain as an MP as the occurrence would have been treated to be one acquiring a disqualification after becoming an MP. Given the above scenario of the writ petition no. 328 of 2014, we find a two-fold situation for the said writ petitioner Mr. Sheikh Afil-Uddin; the first situation is, since by operation of rule 2(6) of the Code of Conduct of 2008 Mr. Sheikh Afil-Uddin’s activities during pre-poll period are regulated by the provisions of the said Code and the said ‘pre-poll period’ being the time period from the date of announcement of the schedule till publication of the Gazette Notification under article 39(4) and his name being not published in the Gazette Notification on 08.01.2014, therefore, the alleged connivance for capturing the polling stations by employing 100 workers might attrack the provisions of article 81(1)(f) of the RPO. The second situation is; since Mr. Sheikh Afil-Uddin’s result was declared by the Returning Officer under article 19(1) and the Election Commission was duty bound to publish the result under article 19(3) where the word “shall” has been used, therefore, provisions laid down in a delegated legislation such as Code of Conduct, 2008, which has been framed under the authority of the RPO, cannot override the provisions of the RPO so as to catch the petitioner’s all activities took place after 13.12.3013 until publication of the Gazette Notification as the conducts of নির্বাচন পূর্ববর্তী সময় as defined in Code no. 2(6) of the Code of Conducts, 2008. On the other hand, to level accusation against Mr. Monirul Islam that he is guilty of the offence under 81(1)(f), the Election Commission have to show his involvement or abatement in capturing the polling station, which apparently is not available in the findings of the Electoral Enquiry Committee’s report.

Let us now look at the provisions of article 17 of the RPO, which is as under:

Article 17 (1) If a validly nominated candidate who has not withdrawn his candidature dies, ⁶¹ [or if his candidature is cancelled under clause (2) of Article 91E,] the Returning officer shall, by public notice, terminate the proceedings relating to that election.
(2) Where proceedings relating to an election have been terminated under clause (1), fresh proceedings shall be commenced in accordance with the provisions of this Order as if for a new election ⁶² [:Provided that it shall not be necessary for the other contesting candidates to file fresh nomination papers or make a further deposit under Article 13.]

Article 17 read with article 91E (2) of the RPO contemplate provisions for either to conduct election with at least 2 candidates or after cancellation of the candidature of an accused under article 81(1)(f) of the RPO to postpone the election where only one candidate remains in the aforesaid process. It has not been made clear to this Court by the learned advocate of the Election Commission as to why it did not decide to withhold the election of constituency no. 86 Jessor-2 when the Electoral Enquiry Committee found the veracity of the offence of connivance to capture the poll centres inasmuch as upon carrying out the investigation at that stage if the candidature of Mr. Monirul Islam would have been cancelled, there would have been a new schedule for the election of the Jessore-2 Constituency and, on the other hand, if he would have been found not guilty’ without any consequence to his candidature, the Election Commission could have proceed for election with Mr. Monirul Islam and respondent no. 2 within a few days of the disposal of the complaint. However, article 17 hardly comes into play for the case of Mr. Sheikh Afil Uddin as his election, apparently, had been completed well before the occurrence under article 81(1)(f) of the RPO.

Let us look at the provisions of article 12(1)(d) of the RPO, which runs as follows:

Article 12(1) Any elector of a constituency may propose or second for election to that constituency, the name of any person qualified to be a member under clause (1) of Article 66 of the Constitution:
Provided that a person shall be disqualified for election as or for being, a member, if he-
(a)..................
(b)..................
(c) .................
(d) is a person who is convicted of an offence punishable under Article 73, 74, 78, 79, 80, 81, 82, 83, 84 and 86 and sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since the date of his release; (underlined by us)

Our lucid understanding of the reading of article 12 is that unless a person is convicted he shall not be disqualified to (i) be elected as a MP or (ii) to continue as a MP. Now, the question comes up for consideration that if the Election Commission decides to cancel the candidatures of the petitioners, whether they are required to be tried first by the First Class Magistrate under article 89A of the RPO, which runs as follows:

Article 89A Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), any person for the time being performing any duty in connection with an election, excluding any member of a law enforcing agency, may, if authorized by the Commission, by general or special order, in this behalf-

exercise the powers of a Magistrate of the first class under the said Code in respect of the offences punishable under ¹⁷⁶[ Article 73(2B), 74(2A), (3), (4), (5), (6),], Article 78, Article 79, Article 80, Article 81(1) and Article 82; and
take cognizance of any such offence under any of the clauses of sub-section (a) of section 190 of the said Code,

and shall try any such offence in a summary manner in accordance with the provisions of the said Code relating to summary trials.]

From a reading of the above article 89A it appears that, except the members of the law enforcing agency, the officers responsible for conducting the election may be authorized by the Election Commission to take cognizance of the offence alleged in these writ petition and, thereby, conduct the trial of the said offence. Now, the question is whether the cognizance has already been taken and, secondly, whether the election Commission vide the pending proceeding will commence the trial of the offence.

Now, the crucial question falls for consideration is that after holding the 10^th parliamentary election on 05.01.2014 and after the Returning Officer’s declaration under articles 19(1)&39(1), whether Election Commission ought to have published the petitioners’ name in Gazette Notification and, side by side, continue with the proceedings and, in the event that if they are convicted, then the Election Commission would invoke article 66 of the Constitution. Here, the Election Commission opted for not publishing their names in order to cover their actions under Code no. 2(6) of the Code of Conducts, 2008, which is as under:

‘‘নির্বাচনি-পূর্ব সময়’’ অর্থ জাতীয় সংসদের সাধারণ নির্বাচন কিংবা কোন শূন্য আসনে নির্বাচনের ক্ষেত্রে কমিশন কর্তৃক নির্বাচনি তফসিল ঘোষণার দিন হইতে নির্বাচনের ফলাফল সরকারি গেজেটে প্রকাশের তারিখ পর্যন্ত সময়কাল;

Now, let us look at the enquiry report of the Electoral Enquiry Committee dated 03.01.2014 (annexure B1 to both the writ petitions).

It is evident from the Column 4 of the said report that the complaint was lodged against Mr. Sheikh Afil-Uddin, not against Mr. Monirul Islam and Column 5 of the report contains the allegation and the Column 6 in the decision of the Electoral Enquiry Committee, which records in the following comments “আনীত অভিযোগ আকারে আচরণ বিধি লঙ্গনের সত্যতা পাওয়া গেছে’’ and in Column 7 the recommendation of the Committee goes to say as follows; সুপারিশ: শার্সা উপজেলার সীমানা সংলগ্ন জিকরগাছা ও চৌগাছা উপজেলার ভোট কেন্দ্রগুলিতে প্রশাসন ও পুলিশের এতদবিষয়ে নিবীড় পর্যবেক্ষণ ও তদারকি প্রয়োজন।

In order to relate the above facts with the relevant provisions of RPO, we may look at article 91A of the RPO, which runs as follows:

Article 91A (1) ¹⁹⁴ [***] The Commission shall establish a Committee to ensure the prevention and control of pre-poll irregularities, to be known as the Electoral Enquiry Committee, hereinafter referred to as “the Committee.”
(2) ¹⁹⁵ [***] The Committee shall consist of such number of persons as may be determined by the Commission from amongst the Judicial Officers.
(3) ¹⁹⁶ [***] The Committee shall, on the basis of information received by it, or complaints made to it, or on its own initiative, inquire into any matter or situation which in its view may constitute an offence under this order, or ¹⁹⁷ [ any pre-poll irregularity including any situation or matter which, in its opinion, may involve], by any person whosoever, as act or omission constituting intimidation, obstruction, coercion, or the publication of false information, or any other act or omission intended to or actually resulting in the obstruction or frustration of the preparation for, or the conduct of, free and fair election in accordance with this Order and the rules.
(4) ¹⁹⁸ [***] In performing its function under this order, and subject to the direction of the Commission, the Committee may conduct any inquiry as it deems necessary before the election is over.
(5) ¹⁹⁹ [***] The Committee, in conducting such inquiry, shall have the right to:

require, in writing, any person to appear before it and give evidence under oath or affirmation to it; and
require, in writing, any person to produce any documents or objects under his control to it.

²⁰⁰[***] (6) After conducting an inquiry, the Committee shall inform the commission within three days of the inquiry and may make a recommendation which may include-
(a) proposals for any order, directive or instruction to be made by the Commission to any person responsible for any act to stop such act forthwith; or
(b) in the case of any omission, to perform any specific act, including, if necessary, the appropriate correction of any false information.]
(I) proposals for any order, directive or instruction to be made by the Commission to any person responsible for any act, to stop such act forthwith, or, in the case of any omission, to perform any act specified, including, if necessary, the appropriate correction of any false information:
Provided that in the event of non-compliance, if any of the above order, instructions as the case may be, the Commission may impose fine not exceeding ²⁰⁰ [twenty thousand taka].]
²⁰⁰ [(6a) After receiving the recommendation under clause (6), the Commission may issue necessary order or instruction to the concerned person, or registered political party to implement the recommendation.
(6b)Where, any order or instruction is issued under clause (6a), the concerned person or registered political party shall carry out the same instantly.
(6c) In the event of non-compliance of an order or instruction made under clause (6a), the Commission may impose a fine not exceeding take one lakh but not less than taka twenty thousand upon the concerned person or registered political party, and by a notification published in the official Gazette, cancel the candidature of the candidate.
[(7) The Commission shall, for the purpose of clause (1), specify the acts and omissions which shall be deemed to be pre-poll irregularities and shall publish them in the official Gazette or in such other manner as it deems fit.
(80 Any proceeding before the Committee shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Penal Code (Act XLV of 1860).
(9) The Committee shall have the powers of a civil Court, while trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of enforcing the attendance of any person and examining him on oath or affirmation and compelling the production of documents and material objects. ]

From the concurrent reading of the Clauses of article 91A, particularly Clauses 2, 6, 6a, 6b, & 6c it appears that the Electoral Enquiry Committee is empowered to inquire into any offence under the RPO and upon carrying out the inquiry it can only make recommendation for Election Commission but the Committee does not possess any power to impose any fine or penalise any one. The Election Commission, then, can ask any person to implement the Committee’s recommendation.

Here, in these cases the Committee’s recommendation for Election Commission was to remain alert on the poll date on 05.01.2014 so that any pre-poll irregularity may be prevented and it is the admitted position that no occurrence took place on the said poll date. From the Electoral Enquiry Committee’s report another two fold situation surfaces. First, there is nothing against Mr. Monirul Islam in the report and, thus, whether the matter should be taken to have already been disposed of with the peaceful completion of the poll in all the centres of Jessore-2 constituency. The second scenario is whether Mr. Sheikh Afil-Uddin’s offence should be tried independent of his own election matter given that he did not commit any offence in connection with the election of Jessore-1 constituency i.e. his own seat’s election. In other words, committing an offence by him may be seen or considered as if it has been committed by a person with the name of Mr. Sheikh Afil Uddin, who does not have any nexus with the election of Jessore-1 constituency after 13.12.2013, and if the offence of Mr. Sheikh Afil Uddin is considered to have been committed by one ordinary person such as Mr. Sheigh Afil Uddin or X or Y, then the consequence is that he will be imprisoned for 3 years to 7 years without affecting the election result of the said constituency no. Jessore-1 given that the offence is not connected with the election of constituency no. Jessore-1. However, Mr. Sheikh Afil Uddin or X or Y, due to his post-election conviction, may be disqualified to continue to function as an MP.

Now, a pertinent question comes up for consideration as to whether the power of investigation invested in the Election Commission under article 91E of the RPO can be exercised by the Election Commission after the Electoral Enquiry Committee conducted its inquiry under article 91A of the RPO having adjudicated upon the pre-poll irregularity by making the recommendation recorded hereinbefore. We, again, refrain from examining the said issue of these cases as we have decided not to make any observations or order as to the actions taken or decisions made by the Election Commission in these cases except commenting that incorporation of the definition of ‘নির্বাচন পূর্ব-সময়’ in the RPO could strengthen the position of the Election Commission in dealing with these types of incidents.

Before parting with the judgment, our task may remain incomplete if we do not deal with the submissions made by Mr. Siddique that there is a Constitutional obligation under Article 72(2) and 148 of our Constitution for the petitioners to sit in the parliament within 30 (thirty days) from 08.01.2014. Having heard his submissions with rapt attention and, thereafter, perusing the said Constitutional Provisions, we find it difficult to comprehend his submissions inasmuch as 3 (three) day time limitation for taking oath comes in operation only when the name of an MP is published in the Gazette Notification and, thus, the issue of sitting in the parliament within thirty days appears to be completely irrelevant for these petitioners.

Since our above exercise was aimed at briefly analyzing the relevant provisions of the Constitution and RPO, which are apparently applicable in disposal of the complaints pending before the Election Commission, therefore, if the Election Commission finds the discussions of the facts alongside the relevant provisions of the RPO as made hereinbefore to be conducive for the disposal of the complaints pending before them, they are at liberty to take the benefits of the discussions and observations made by this Court here in this judgment.

So, from the above threadbare discussions this Court is left with no option but to hold that the Rules are liable to be disposed of with a direction upon the Election Commission (respondent no. 1) to adjudicate upon the said complaints brought against the petitioners, which are now pending before Election Commission, at its earliest convenience.

Accordingly, we direct the Election Commission (respondent no. 1) to dispose of the complaints filed by respondent no. 2 with regard to the elections of the constituencies of Jessore-1 and Jessore-2 within 2 (two) weeks from the date of receiving this judgment without fail.

With the aforesaid observations and directions these Rules are disposed of without any order as to costs.

Ed.

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Judgment

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